§ 3.1 p.m.
§ Baroness Blackstone
My Lords, I beg to move that this Bill be now read a second time. At the heart of the Government's agenda is the wish to have an inclusive society and a recognition of the importance of education for all. We are committed to a fairer, more tolerant society where every individual is valued and appreciated for what he or she can do, not labelled for what he or she cannot do. It is for all of us as citizens to work to break down the barriers that some members of our society have to overcome to gain access to services that the majority of us take for granted.
The Bill covers two topics—special educational needs and disability in education. The Bill is about moving the legislative landscape forward, building on the best of existing law and practice.
Part I of the Bill covers special educational needs in England and Wales and amends Part IV of the Education Act 1996. Of course the noble Baroness, Lady Blatch, played a key role in establishing the original special educational needs framework through the Education Act 1993, and I would like to pay tribute to her for her role. Part I of the Bill builds on the strong legislative background which she helped to put in place. In October 1997 we published our Green Paper Excellence for All Children: Meeting Special Educational Needs in England and the parallel Green Paper in Wales The BEST for Special Education. Our vision of excellence is for all. Our commitment to raising standards of achievement for children in schools encompasses children with special educational needs.
In November 1998 we published Meeting Special Educational Needs: A Programme of Action in England and Shaping the Future for Special Education was published in January 1999 in Wales. Those documents set out action that would be taken to maintain the momentum of progress in relation to special educational needs.
635 Part I of the Bill fulfils the commitments made in the programme of action that require primary legislation and covers England and Wales.
The Government's commitment to inclusion has been strong and constant. We are committed to ensuring that children with special educational needs are included wherever possible. The potential social, moral and educational benefits are significant. Clause 1 of the Bill delivers our commitment to strengthen the right to a mainstream place for children with special educational needs, where parents want that. That is in line with the Disability Rights Task Force's recommendation. Our approach is pragmatic and practical, recognising that inclusion is not always easy. Equally, we are clear that there is a continuing and vital role for special schools.
Inclusion is clearly an emotive issue. I want to use this opportunity to set out our objectives and the principles behind this first clause. First, we want an inclusive education service to offer excellence and choice. Secondly, inclusion must be based on sound foundations. The interests of all pupils must be safeguarded. All children have a right to an appropriate education that affords them the opportunity to achieve their personal potential. Thirdly, where parents want a mainstream place for their child the education service should do everything possible to try and provide one. Equally, where parents want more specialist provision their wishes should be listened to.
Finally, inclusion does not mean that every child should be placed in a mainstream school irrespective of their needs or circumstances. There will be cases, particularly where there is severe challenging behaviour, where a mainstream place is not appropriate. But that will be a small minority of pupils. We believe that many more pupils could and should benefit from a mainstream place where this is what their parents want. But we also believe that pupils should be protected from those whose inclusion would adversely affect either their learning or their safety.
Supporting parents is a theme of the Bill. Clauses 2 and 3 place duties on LEAs to provide parent partnership services and arrangements for resolving and preventing disputes respectively. Even the most articulate of parents can find the system confusing. All parents should feel empowered and able to play a full and active part in their children's education.
All LEAs have been encouraged to set up these services in advance of the statutory duty. We have published practical guidance to help them based on existing good practice. We have also provided the funding to enable LEAs to run them. This year £12 million has been provided, which is double what was available in 1999–2000. Next year the resources will increase again to £18 million.
Clauses 4 to 9 amend the existing legislative framework with a view to streamlining the SEN process for parents and maximising the benefit for children. Those clauses take forward specific commitments in the SEN programme of action.
636 In conclusion, Part I of the Bill seeks to enhance significantly the rights of children with special educational needs to high quality education that meets their needs. It strengthens the rights of parents to a mainstream place and promotes a strong partnership between parents, schools and LEAs for the benefit of children with special educational needs.
These are themes which the Bill shares in common with the revised SEN code of practice. I want to use this opportunity to say a few words about our recent consultation on a draft revised code. Over 1,000 responses were received. Similar consultation on a draft revised code of practice has recently been completed by the National Assembly for Wales, which will be responsible for approving a revised code in Wales. The majority of these were positive. In particular, people liked the emphasis on identifying needs as early as possible; improving partnership with parents; taking account of the views of the child; promoting strong school-based provision; and, reducing unnecessary paperwork for teachers.
Concerns were expressed about some aspects of the revised code. We made clear from the start that we would listen carefully to views. We have done that. My department has just issued a short document updating interested parties on our thinking as a result of this consultation. It covers a number of issues. But I will focus here on the issue that has caused most debate—the changes we proposed to the guidance on specifying special educational provision in statements of special educational needs.
Let me make absolutely clear that we have no intention of weakening the legal protection for children with statements. Vague statements do nothing to secure the right kind of help for a child with SEN; nor do they help a school to know what is required of it in helping the child to learn and progress. We will make clear that LEAs are required to specify provision in statements, as they always have been. We will retain the requirement in the SEN regulations for provision to be specified, matching the terms of the duty on LEAs set out in the Education Act 1996. We will stress that statements should be clear and specific about a child's special educational needs; the special educational provision required to meet those needs; and, the objectives that the special educational provision should aim to meet. We will recognise that that provision should be quantified as necessary.
I turn to disability discrimination in education. Part II of the Bill deals with disability discrimination in the provision of education. The Social Attitudes Survey of 1998 told us that 75 per cent of people in Great Britain believe that there is a prejudice against disabled people. There are some 8.5 million disabled people in Great Britain. They continue, regrettably, to suffer discrimination on a daily basis. There is still some way to go if activities which the rest of society takes for granted are not to be denied to some disabled people.
Legislation of itself cannot secure a change in culture or attitude but it can provide certain rights and a means of redress if those rights are infringed and it can provide leadership and a framework which 637 encourages changes of attitude. The Disability Discrimination Act represented a step forward in tackling disability discrimination, but it is flawed in a number of respects. It omitted the establishment of a Disability Rights Commission and it did not cover the provision of education.
In our 1997 manifesto we pledged,to support comprehensive and enforceable civil rights for disabled people developed in partnership with all interested parties".It was with great pleasure, therefore, that almost exactly two years ago I opened the Second Reading debate on the Disability Rights Commission Bill and have subsequently seen the commission formally open its doors in April of this year. The Disability Rights Task Force, established in December 1997, reported in December 1999 through the publication of its report From Exclusion to Inclusion. The Government welcomed that report and since then have been committed to taking forward the education recommendations of the task force. We announced in another place on 20th November that we hoped to publish a response to the task force report around the end of February next year.
In addition, we will have invested £195 million in the New Deal for Disabled People. So far nearly 4,000 disabled people have found jobs and many more are making progress towards getting jobs. The "See the Person" campaign, launched in June last year, was a hard hitting campaign which our research revealed most people found easy to understand, informative, provocative and relevant.
Lord Campbell of Croy
My Lords, I am grateful to the noble Baroness for giving way. But it sounded as though she was being a little critical of the Disability Discrimination Act 1995. I am sure that she did not intend to be. She is quite right to say that it did not include education. However, at that time the bodies most concerned were in tremendous disagreement about what education provisions should be in the Act. The whole of the rest of the DDA which had been agreed in principle would have had to wait until the education part was dealt with. Now, six years later, the correspondence I am receiving shows that there are still differences of opinion among those concerned with the education of disabled people which our consideration of the Bill will try to iron out. The whole Disability Discrimination Bill would have been held up while the education part was being dealt with.
§ Baroness Blackstone
My Lords, the DDA was an enormously important step forward in establishing rights for disabled people. All I wished to set out was the fact that education had been omitted and that that is now being rectified. It has been recognised that that needed to be changed and I am delighted that there is enormous consensus in the education world for moving forward in this way.
Perhaps I may return to what the Government have done in recent months. A disabled person's tax credit was introduced in October of last year to give a minimum guaranteed income for disabled people 638 moving from benefit to work. We have increased the disabled student's allowance and we have extended eligibility to part-time and postgraduate students. Access to a high quality education—whether as a child, a young person or an adult learner—is essential if disabled people are to be empowered to live independent, fulfilling lives.
The exemption of education from the access to goods and services provisions of the DDA must now be put right. In looking to provide rights against disability discrimination, the starting point is clearly the Disability Discrimination Act 1995. The DRTF recognised that applying disability discrimination provisions to education was not, as the noble Lord, Lord Campbell of Croy, has just indicated. entirely straightforward. Education is a unique service and needs to be covered in a unique way. In framing its recommendations, the DRTF took the best of the DDA and applied it in a practical way to education. The DRTF also recognised that a different approach was needed for schools and for post-16 education providers, reflecting the existence of the SEN framework which already operates in schools.
I turn now to the provisions of the Bill on disability discrimination in schools which are covered by Clauses 10 to 24. This chapter places new duties on LEAs and schools, including independent schools and non-maintained special schools, in England and Wales and on local authorities, independent schools, self-governing schools and grant-aided schools in Scotland.
In England, Scotland and Wales the new duties are not to treat disabled pupils less favourably, without justification, than pupils who are not disabled; and to make reasonable adjustments so that disabled pupils are not put at a substantial disadvantage to pupils who are not disabled, but not where this requires them to remove or alter a physical feature or to provide auxiliary aids or services. Additionally, in England and Wales, there is a new duty: to plan strategically and make progress in increasing physical accessibility to schools premises and to the curriculum.
The DRTF considered in some detail whether a duty on individual schools to alter physical features was a practical way forward. It concluded that it was more sensible to have a strategic planning approach which would allow LEAs and independent schools to look across their building stock and to make changes as necessary within the context of an overall strategic plan. We have already announced a significant increase in the money to be made available through the schools access initiative in England—some £220 million over a three-year period—to support this duty. That planning duty, which is covered in Clauses 13, 14 and 21, applies only to England and Wales. While the provisions are clearly designed to help disabled children, they are more about the organisation of schools and as such are matters devolved to the Scottish Executive.
A key feature of the reasonable adjustment duty is that it is anticipatory. It will not be good enough for a school or LEA or local authority in Scotland to wait 639 until a disabled child arrives on the doorstep. The approach must be to think ahead—always to have the rights of disabled children on the agenda. The anticipatory nature of these duties is an example of taking the best of the existing DDA and applying it here.
Where there has been discrimination on the grounds of disability, a remedy is essential. Clauses 16 to 20 and Clause 22 provide these rights of redress. The DRTF was impressed with the work of the SEN tribunal, which has been working since 1994, and recommended that the role of the SEN tribunal should be expanded to deal with such cases. The SEN and disability tribunal, operating in an informal and non-confrontational manner, will have wide-ranging powers to order LEAs and schools to take certain action as a remedy for discrimination. For example, a school or LEA might be ordered to change a policy that prevented visibly impaired pupils from going into a science laboratory and, additionally, ordered to provide extra tuition to enable a child to catch up on things that he or she may have missed due to discrimination. In Scotland, where no SEN tribunal operates, the Bill provides for these cases to be heard by the sheriff courts.
Clauses 25 to 33 cover the disability duties in relation to post-16 and non-school education. We are committed to lifelong learning and we have made a particular commitment to helping people who face barriers in gaining access to learning to overcome those barriers. This Bill will make a reality of that commitment for disabled people by placing new anti-discriminatory duties on the main providers of post-16 education. Those duties will bear on colleges, universities and LEAs in relation to adult education, community education and the youth service. They will mean that providers will not be able to treat disabled pupils less favourably, without justification, than students who are not disabled. They will have to make reasonable adjustments to ensure that people who are disabled are not put at a substantial disadvantage to people who are not disabled in accessing post-16 education.
Once again, the duties are anticipatory. The Bill will make it unlawful for institutions to discriminate against disabled people, not only in the way in which they carry out their main business—which is, of course, the provision of education—but also in the wider services that they provide for students such as accommodation, welfare services, careers advice, as well as leisure, recreation and entertainment.
Recently I have been made aware of instances where unreasonable behaviour by an institution has meant that a student cannot participate in a programme of further or higher education at a college or university. For example, in one case, a young deaf student was unable to hear her lecturer because he refused to clip on a radio microphone. In another instance, a student at an FE college who uses a wheelchair was denied access to the upstairs library because the only lift in the building was designated for staff only. The Bill places the responsibility firmly on educational institutions to 640 deal with unacceptable cases such as these. Providers must meet the needs of all their learners by taking reasonable steps to put in place policies and procedures capable of providing learners with a disability with fair access to all opportunities. In practical terms, this means that students with disabilities will have much greater access to necessary teaching facilities, classrooms, lecture theatres, laboratories and so forth, as well as to general facilities such as libraries and canteens. Providers are required to do what they reasonably can to avoid disabled students being placed at a substantial disadvantage to their peers. This will require them to take an inclusive approach.
In further and higher education institutions all over the country, a great deal of good work is already being done to provide a more inclusive environment, but while significant progress has been made, there is still a long way to go. Too many people are excluded from the great benefits that learning at any age can bring. The Bill will mean that many more people with disabilities can take part in lifelong learning. Adult and community education, together with the youth service, is by far the most informal part of the spectrum. They provide a huge variety of learning opportunities, often recreational, which are closest to local communities. Participating in learning at this level can act as a crucial bridge to more formal and organised education. Furthermore, it can improve health, in particular for older people. It is therefore important that both sectors should be covered by the Bill.
Cases of disability discrimination will be taken to the county court in England and Wales and to the sheriff courts in Scotland In all cases, a financial remedy will be payable. Chapter III of Part II deals with miscellaneous provisions. Clause 34 extends the role of the Disability Rights Commission, giving it similar powers and duties to those in respect of Parts I and III of the Disability Discrimination Act.
I look forward to debate on this Bill. The issues covered by it are always of great interest to this House. Indeed, they are of interest to everyone who is committed to fairness and social inclusion. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Blackstone).
§ 3.25 p.m.
§ Baroness Blatch
My Lords, I thank the noble Baroness for explaining the proposals as set out in the Bill. We welcome the Bill. As has already been said, it builds on the 1981, 1993 and 1996 Acts which all deal with special educational needs. I know that it will receive its customary diligent scrutiny by Members of this House. I can also promise that the aim of the contribution to this Bill by myself and my colleagues on these Benches will be to make the Bill work for all children.
My starting point, and that of my noble friends, is that the education system should address the educational needs of all children from whatever 641 background, whatever their mental and/or physical needs, and from whatever point they are placed on the ability scale. At this stage, I wish to put on the record our thanks to those schools and their staff which provide for children with special educational needs, and especially those which exercise much patience—sometimes to the point of exhaustion—with behaviourally disturbed children.
In the 1999 gracious Speech, the Secretary of State for Education and Employment made a commitment to legislation on special educational needs. However, that was dropped from the legislative programme and replaced by a promise of a draft Bill. As we all know, that was never published. On reading the Bill before us, one wonders why the delay.
There are some in the field of special needs who would have preferred more time to have seen a draft Bill as promised, in order to allow for consideration of the detail before its passage through Parliament. Although there will be much discussion on this Bill, the test of its success will be in its implementation. To that end, the Bill reveals little about how these proposals are to work in practice. That, I believe, will form the focus of much of the debate on the provisions.
We know, for example, that the Government plan to modify the code of practice. If, as a result of those changes—and the passing of the Bill—many more children with special educational needs are transferred to mainstream school provision, then the support to mainstream staff will have to match the additional burdens placed on our teachers.
In a press release issued on 17th November 1999, the Secretary of State stated that:This Bill will improve the quality of education for children with special needs by making it easier for parents and children to secure the type of education they want. It will strengthen the right to a place in a mainstream school for those with special needs who want it, in all cases where it is appropriate. This Government is making a reality of parent power and meeting the individual needs of pupils in a more coherent way—putting equality into practice".I hope that it will also strengthen the right of parents to choose a place in a special school as long as it is consistent with the educational needs of their child. There should be no imposition of inclusion into mainstream education against parents' wishes for those children for whom it is not appropriate.
In response to the Bill, the NASUWT has said:The Bill appears to be premised on the assumption that all parents want their children educated in a mainstream school regardless of their child's particular needs. This is not always necessarily the case".It is important that, when parents receive information about the options for their child, they understand the advantages and, sometimes, the limitations of both mainstream and specialist school education. The quality of the information on which they will make those choices is absolutely crucial.
However, special school places are decreasing. Ofsted put the decline, during last year alone, at 30 per cent. Furthermore, there is evidence that local educational authorities are under pressure from government to promote inclusivity. The NASUWT, speaking for teachers, is concerned that parents could 642 be faced with no alternative but mainstream education which, despite even the best efforts of the school and the local education authority, might not be the most suitable placement for the child.
In so far as it went, I welcomed the statement by the Secretary of State in the debate in another place on this year's gracious Speech when, in answer to a point raised by my honourable friend Theresa May, he said:I want to make it absolutely clear that the inclusion agenda is not a wholesale closure of specialist facilities and schools that meet particular needs of youngsters and their families. That is why we want a regional structural approach so that facilities are available. We do not want a free-for-all or a closure by clint of resources not being available in a particular borough or local authority".—[Official Report, Commons, 8/12/00; col. 259.]Will the Minister tell the House whether the parents, children and friends of Thurlow Park School in Lambeth can take heart from those words of the Secretary of State?
I hope that noble Lords will forgive my note of caution about that statement of the Secretary of State. He referred to no "wholesale closure" of special schools, but does that mean a closure of some special schools, giving way to a plan, as yet unseen, of regional facilities? It is important that we know what was in the mind of the Secretary of State when he made that statement. The Minister will know that to provide area-wide facilities in inner-city areas, where the relative distances to be travelled are manageable, is one thing; however, in suburban areas—and more particularly in urban areas—it would present great difficulties with unmanageable costs.
Whenever there is a major debate about the special educational needs of young people, it is important to remember the valuable work of the noble Baroness, Lady Warnock, whose report gave rise to the Education Act 1981. The noble Baroness identified about 20 per cent of young people whose learning needs would require additional help over and above the norm. It is important to note that the 20 per cent ranged from children who, for example, had difficulties mastering reading at an early stage right through to those who had severe learning difficulties.
However, suffice it at this stage to make one point on this issue. Ofsted states that approximately 75 per cent of children with learning difficulties are under-achievers in reading and writing—and yet, with all the improvements of formal assessments, testing, school inspections and an emphasis on literacy and the teaching of reading in teacher training colleges, the percentage of children with learning difficulties has not diminished. In fact, it is quite the reverse.
Dr John Marks has recently researched this subject. He reports that from 1991 to 1999 the number of pupils with special educational needs but without statements has risen from 11.6 per cent to 19.2 per cent in primary schools and from 9.6 per cent to 16.5 per cent in secondary schools. The number of pupils with statements of special educational needs has risen from 0.8 per cent to 1.6 per cent in primary schools and from 1 per cent to 2.5 per cent in secondary schools.
643 Of particular interest to all those who wish this Bill to work will be the allocation of funding and, more importantly, the identification of costed and necessary support when a mainstream school is selected for a placement. This is a Bill that cannot be bought on the cheap. There is no requirement for this in the Bill, which could mean a placement being made where a school, in order to meet its obligations under the law to a child with special needs, finds that it is unable to provide fully for the other children. Although the Government have put aside extra funds for special needs—we acknowledge that—there needs to be clarification of where a school would stand in such circumstances.
It is disappointing that more research and information has not been made available to prepare the ground for this Bill. Again, Dr John Marks, in his recent report, posed six fundamental questions, to which, so far, there are no answers. What are the criteria for deciding whether a child has special educational needs? No definitive criteria exist or have been proposed. How many pupils are at the various stages of special educational needs? Again, there are no data available. Who are the children with special educational needs? Some data are available for Wales, but not for England.
Very few data are available about the number of boys and girls who have statements of special educational needs, but there is no information about the numbers and percentages of boys and girls with special educational needs who do not have statements. There is no systematic monitoring of the effectiveness of special educational needs' funding. There are no research findings available to evaluate the teaching or monitoring of reading specifically among children with learning difficulties. Do the Government have any plans for research into these basic questions?
There was considerable disquiet about the draft code of practice. Many respondents saw it as a dilution and a weakening of the education rights of vulnerable children. However, the news from the Secretary of State today promising not to make the change from the word "specify" to "setting out" in relation to defining provision within statements in the regulation is very welcome.
Are the Government satisfied that all children with special educational needs currently in mainstream education have the support for access to all appropriate areas of the curriculum? What has been the response of parents to the decline of special school provision? Have the Government evaluated the tension between the current pressure to reduce the number of exclusions and the difficulties of placing with teachers more demanding children—especially those with behavioural difficulties—without adequate support? Will the Government guarantee that children are not placed in mainstream unless the necessary support is provided? For example, will a school be free to use as a defence for refusing to take a pupil with special educational needs the fact that the support is not also provided?
644 In Ofsted's report on pupils with learning difficulties in mainstream schools, it is recorded that many parents complained about the length of time taken to move to a formal statement. They argue that, in so many schools, if it had not been for the parents' persistence, such diagnoses may not have been made. Early identification and early intervention is the key to tackling learning difficulties.
The Ofsted report goes on to state that there is a tendency on the part of primary schools to move to a statement for a child just before secondary school transfer. Thus valuable time is lost, which all too often gives rise to anxiety for the parents and, worse, great frustration for the child. It is well known that much frustration and disruptive behaviour stems from under-performance and low achievement, particularly in reading and writing skills. What specifically in this Bill will address this issue, other than pressure to retain more behaviourally disturbed young people in mainstream schools?
There are a number of conditions which require the earliest possible intervention, including autism, asperger syndrome, hearing impairment, poor eyesight and dyslexia. What in the Bill will improve early identification and early intervention for children who are so affected?
During the debate on the gracious Speech I asked about the Government's universal neo-natal hearing screening programme. The Minister promised to write to me but I have not as yet heard anything. Can she comment today on the progress to date of that scheme?
Many other questions will need to be explored in further stages of the Bill. In Clause 11, how can there be a charge of discrimination in further or higher education if the responsible authority is unaware of any disability? Who will be responsible in law to inform the institution—or is ignorance no defence for such an institution?
I am sorry that when the Minister gave examples of poor provision in further and higher education—for example, the lecturer who refused to put on a microphone or the lift which was available only to staff, both of which examples, I agree, are deplorable and wholly unacceptable in today's world—they were not accompanied by a recognition of the enormous lengths to which those in further and higher education go to accommodate young people with special and physical educational needs.
What is the position of sport in relation to people with disabilities? If, for example, a mainstream school agrees to take a child with disabilities but is not able to adapt all sports facilities for the child due to physical constraints within the building, would that amount to discrimination?
Time does not allow me to touch on all aspects of the Bill. Seeing the list of speakers, however, I have no doubt that all issues will be addressed during the course of the debate. However, I ought to refer to another Motion that will be addressed by the noble 645 Baroness before the debate concludes. I refer to the proposal for the Committee stage to be taken off the Floor of the House.
I need to make it clear that I am not an enthusiast for the Moses Room procedure. I am not attracted in principle to the idea of taking significant business off the Floor of the House. I believe that the Committee of the Whole House in this Chamber is a distinctive feature of this House which we should do well to preserve. I want to make clear my concern that a Bill of this type should not be scheduled at a time when other important business—such as, for example, the critical issue of legalising human cloning—is being considered in the Chamber. That would be inconvenient to noble Lords on all Benches. I hope that the noble Lord, Lord Carter, the Chief Whip, will take that into consideration when scheduling the business.
However, the Grand Committee is part of our procedures now. We have come under intense and prolonged pressure to put a significant Bill into the Moses Room and we must proceed by agreement. There is no substantial disagreement in the House with the broad objectives of this Bill. Indeed, I believe that there is a large measure of agreement in principle about much of what it has to offer. That is why the Official Opposition have reluctantly agreed with the request from the noble Lord, Lord Carter, for a Grand Committee on the Bill. I only hope that the experiment will prove to be a success. If it does not, or if it is handled in a way that is inconvenient to noble Lords, we shall want to think carefully about again acceding to such a request on so significant a Bill.
Like all those who are concerned about young people with learning difficulties, we welcome the Bill and we want to see it work. It will call for improved teaching, especially in the early years, greater support for teachers, and effective use of resources.
As I said during the debate last week, I remain concerned about the aggressive policy intention towards the integration of children with special needs into mainstream schooling. Where it meets the educational needs of the child and is consistent with the wishes of parents, and where teachers are fully supported, mainstream schooling will be the right choice. However, to remain ideological about inclusion to the point of making inappropriate placements will not only be wrong; it will be damaging to children and will cause great distress to parents. The system should be exclusively concerned with educational needs and specific provision to meet the needs of all children.
§ 3.43 p.m.
§ Baroness Sharp of Guildford
My Lords, from these Benches, I welcome the Bill. Unlike the Minister and the noble Baroness, Lady Blatch, I have no previous experience in dealing with Bills of this nature; I am a relative newcomer to this whole area. As such, I am struck by the relative unanimity of view on these issues on all sides of the House. There is a wish on all sides to promote its main objective: access to first-class education for all children, whatever their needs.
646 We on these Benches also have a great deal of sympathy with the Government's inclusion agenda—the inclusion within mainstream education of children with special needs and disabilities wherever that is possible. There are too many cases of ostracism, bullying and stigmatisation of those with disabilities or special needs for us to be happy with the present situation.
There is clear evidence that, in most cases, including children with disabilities and special needs in mainstream schools and colleges brings mutual benefit. Such children benefit generally from the higher level of aspirations and expectations prevalent within mainstream schooling and from the wider companionship that they experience within the school and the wider community. Those without such needs learn that those with disabilities are normal human beings with all the hopes, fears and humours of normal human beings. Where it is possible, therefore, and where the child and the parents want it, it is sensible to try to accommodate such children within the context of mainstream schooling. We on these Benches welcome the provision in the Bill for that purpose.
The Bill moves the agenda forward in two important ways. First, it tidies up a number features in relation to special educational needs, emphasising the option of remaining within mainstream schools, simplifying procedures, increasing advice, in formation and support for parents, and clarifying the respective roles of schools, special schools and LEAs. These provisions are broadly to be welcomed, although, as I shall indicate, there are a fair number of specific points where we have reservations about the lack of clarity in the present proposals.
Secondly, the Bill brings education within the framework of the Disability Discrimination Act, and again that is to be welcomed. Outlawing discrimination on grounds of disability, extending the accessibility requirements to schools, universities and colleges, and placing a duty on governors and LEAs to develop longer-term plans to increase accessibility are all to be welcomed. It also extends the jurisdiction of the Special Educational Needs Tribunal to cover disputes arising over discrimination in relation to the provision of educational services, but not—and I believe that this is right—to the field of further and higher education.
We welcome both these sets of provision. The emphasis is on inclusion. The onus is on parents, schools and other professionals to say why mainstream schooling is not appropriate, rather than vice versa. This does not present a threat to special schools. There will always be a need for specialist support for children and young adults with complex needs. But special schools must increasingly be seen as resource centres for learning communities rather than as stand-alone institutions, isolated and insulated from the world around them.
As I said, we have reservations on a number of particular parts of the Bill. Perhaps too frequently, there are weasel words within it which we shall need to 647 tease out in Committee. A number of examples come to mind. One is the breadth of meaning of the expression in Clause 1,incompatible with … the provision of efficient education for other children".Although it is designed to permit the exclusion of severely disruptive pupils, it could be used to exclude milder cases—for example, an autistic child with unconventional behaviour, or a deaf child who might require a special communications support person who, it might be argued, distracted the other children. We shall need to tease out the precise meaning of this provision and see where the codes of practice cover such issues.
To refer again to Clause 1, the revision of Section 316 of the Education Act 1996 does away with the need to take account of the wishes of the child, replacing it with the wishes of the parents. There is presently no provision in the Bill for the rights of the child. The child, for example, has no standing before the tribunal, even though it is not unusual for a teenage child to have strong views about his or her schooling. Although the Human Rights Act mentions the parents' right to educate the child in accordance with their convictions, the right to an education under the Human Rights Act belongs to the child. Is the Minister confident that the Bill is compatible with the rights of the child under the Human Rights Act?
In Clauses 2 and 3, relating to advice and information for parents, broadly speaking we welcome the requirement on local education authorities to provide the parent partnership information service, and the new independent conciliation service. But we have reservations about resources. Where will the expertise come from to meet the demand of these new services? It is important that existing services are not denuded; many of them are already short-staffed and do not have the key personnel that they need, leading to yet more delays and frustrations. It is important also that the new conciliation service is precisely that, and that it does not add just another layer of delay and bureaucracy between recognition of the problem and the implementation of effective action.
In Clause 4, on compliance and enforcement with regard to the Special Educational Needs Tribunal, while welcoming the new requirement for local education authorities to comply with the tribunal along fixed time-scales, we retain a degree of scepticism as to how this can be achieved when, frequently, local education authorities cannot themselves command the staff to achieve the necessary action. For example, where the services of a speech therapist are required, it is quite usual for a year or even 18 months to elapse before such services can be given to a child. It is, therefore, sometimes difficult to lay down fixed time-scales, unless more resources are put into the whole procedure.
I turn now to disability discrimination. In Clauses 11, 12 and 13 we have these weasel words again of "reasonable adjustments". Clauses 11 and 12 deal with the duty to make reasonable adjustments, while Clause 13 specifies the duty on local education authorities to 648 plan for greater accessibility. As they stand, these clauses seem very weak; indeed, much weaker than Part III of the Disability Discrimination Act, on which they are modelled, or, for that matter, the equivalent clauses in Chapter II of this Bill which deal with the further and higher education sectors. Schools will be able to plead,a material and substantial reason",for not doing what would otherwise seem to be reasonable, while the list of special factors listed in Clause 12 includes the need,to maintain academic, musical, sporting and other standards",which could be a let-out that would undermine the whole purpose of "reasonable adjustments". Is it not contrary to the spirit of tolerance and inclusion that the Bill is designed to foster?
Clause 12 deals with auxiliary aids and services. According to new Section 28C(2), the duty to make "reasonable adjustments" does not extend to the duty to supply auxiliary aids and services, or to make changes to the physical environment. Is this really so? It means that those students for whom such aids and services are crucial—for example, students with sensory impairments or learning difficulties in particular—may get little benefit from "reasonable adjustments". The Government are apparently aware of these issues, but argue that "reasonable adjustments" that are costly are better dealt with through the rational planning procedures of Clause 13. But these deal only with the physical environment. It is important to appreciate that the aim of accessibility is to make the curriculum more accessible. That does not appear to cover the provision of auxiliary services such as communications support; nor will it cover the training of staff. Is this really what is desirable?
Clause 13 relates to the duty to plan. As it stands, the duty to plan applies only to the physical environment. There is real concern from some in the disability lobby that the duty to plan should be extended to access to the curriculum for children with communication and developmental disorders, and those with learning difficulties. For example, access to the curriculum for a child with autism or Asperger syndrome is possible only with trained staff. Training is a critical factor in enabling such inclusion.
A particular concern has been expressed about the lack of cross-reference between the special educational needs and the disability provisions of the Bill. Will parents and teachers be faced with two separate codes of practice that will need to be satisfied—one on special educational needs and another on disability rights? What about the two routes of appeal that do not cross refer? How far will the definition of "disability" adopted in Part II actually include many children classed as having special educational needs? As it stands, the overlap between these two provisions is not clear.
I do not have time today to follow on with the further and higher education sectors of the Bill. We welcome the stronger powers of resort to the courts in relation to universities and colleges. We believe that this is certainly appropriate in their case. It may well 649 provide the incentive to these institutions to make good what I believe to be a very considerable backlog of deficiencies in terms of their buildings. Many of the issues raised in relation to access to knowledge and to the curriculum also arise in the further and higher education sectors. Here, again, too much emphasis is perhaps being placed on the physical environment and not enough on the overall teaching environment.
I should like now to raise a more general point of concern about the Bill. As I understand it, the legal definition of "disability" means that, while not all disabled children will have special educational needs, the overwhelming majority of the 250,000-plus children who have statements of special educational need will fall within the legal definition of "disabled" and, therefore, in the future come within the scope of the anti-discrimination legislation. Children with statements have,an enforceable right to the provision specified in the statement".So far, so good. But what if LEAs are resistant to specifying what is to be provided? As long ago as 1992, the Audit Commission pointed out that there was an in-built incentive for LEAs not to specify what should be provided because they thereby avoided a long-term financial commitment. Many LEAs have done precisely that. The result is that only those parents who have the confidence, ability and financial resources to take their case to the Special Educational Needs Tribunal are likely to win an order that compels the LEA to quantify the amount of support that their child should receive. Others have often been short changed. Indeed, as one parent of a severely disabled child put it to me:For LEAs there are three priority categories. Top priority goes to those who know their rights and have pursued it through to actually taking them to the Tribunal. Second priority goes to those who are threatening to take them to the Tribunal. And lowest priority goes to those who know nothing of the Tribunal".That hardly seems to be an equitable outcome! One would have hoped that all of these proposals for parent partnerships, better advice, information and support for parents with SEN children would have reversed those priorities.
However, I am encouraged today because we have the new statement from the Secretary of State about the code of practice. As it was, the draft code of practice seemed to be extremely weak on this issue. I am most encouraged to see that the Secretary of State has strengthened the provision and that he does require LEAs to specify what is required at the stage of statementing. I am delighted with this development. It is a very welcome strengthening of the Bill.
I turn now to my final point. As an outsider coming afresh to this area, it seems to me that there is created here a fundamental imbalance between rights and responsibilities. Under the provisions of successive education Acts, culminating in this Bill, we have created a series of, as the Disability Rights Task Force described them, "enforceable rights". Schools and LEAs have the responsibility to meet those rights; but, as the Audit Commission made clear, they also have 650 every incentive to skimp on those responsibilities and to make sure that the parents involved do not know the extent of their rights.
The Government for their part, having created the rights, have skimped on the funding. In this very Bill the cost of implementation, which is set out at the end of the Explanatory Notes, is assessed almost entirely in terms of the costs of alteration to the physical structures. The estimates are of some £200 million for schools and £170 million for the university and further education sector. By contrast, the costs to be borne by the schools in terms of extra support staff and extra training for existing staff is put at £12 million for this year and at £18 million for next year. Are such figures realistic?
This is not a trivial issue. I have already indicated that some 250,000 children in this country have statements of special needs and that in many cases we are failing to provide the necessary support. If we extend this to the total population of children with special needs, not just the statemented children, we are looking at approximately one-fifth of the school population—some 1.5 million children, most of whom come from poor and disadvantaged backgrounds. It is our failure to meet their special needs in the past that has endowed us with one of the highest rates of illiteracy and innumeracy among advanced nations.
In this Bill we are endowing these very children with a fundamental right: the right to a decent education. But I fear that, once again, while we may will the end, we have not to date been prepared to will the means. Unless we are prepared to do so, I believe that we shall be raising aspirations but short changing a considerable proportion of the population.
§ 4 p.m.
§ Lord Rix
My Lords, it is with great pleasure that I too welcome the Special Educational Needs and Disability Bill into your Lordships' House. Proposals for this Bill have existed in a number of incarnations over the past 12 months. It is gratifying to have before us a final framework for legislation upon which we can all concentrate. I am also grateful for today's announcement from the Secretary of State about progressive changes to the code of practice.
During last week's debate on the gracious Speech I extended my support to the principles of the Bill. I believe that it is right to update the 1996 Education Act, which was introduced so admirably in your Lordships' House by the noble Baroness, Lady Blatch, so parents of children with disabilities have a stronger right to choose a mainstream school if they wish. I also believe it is right that the Disability Discrimination Act is updated so it becomes unlawful to discriminate against disabled people in education.
Policy in the field of special education is an emotive and challenging subject, as no doubt we shall hear during the course of this Second Reading. Arguments are frequently polarised by the reality of hard, but often exceptional cases—cases on the one hand where outrageous unjustifiable discrimination has prevented disabled children from having the same life chances as 651 other children, and cases on the other hand where inclusive policies, implemented without adequate support, have been seen to fail that child as well as their peers, their parents and their families.
I believe that it is vital that we approach this legislation with a sense of proportion over its consequences. In education, as in most areas of policy, one size does not fit all, particularly for children with complex needs. There is no doubt that making inclusion work is a challenge. In some cases it can work only with the support of highly professional staff in well resourced schools and while we are a long way from that, experienced teaching assistants are already making huge differences.
I believe that an adversarial debate about the merits of mainstream versus special schools in the context of this Bill is unhelpful. It is a myth to suggest that our education system is divisive in such a way. I hope that your Lordships will permit me a short aside. Mencap's research with the University of Birmingham shows that a number of different models of integration and inclusion exist at this very moment. Some pupils attend mainstream schools with full-time specialist teaching help. Others attend some classes in a mainstream school but are withdrawn for specialist input such as physiotherapy. Some pupils attend a specialist unit as part of a mainstream school; others are on the roll of a special school but attend mainstream schools part-time or for specific practical lessons. I believe that this demonstrates that there is no Berlin wall between mainstream and special schools. They can and indeed they do work effectively together.
The view that this Bill is in some way an ideological nail in the coffin for special schools is also misleading. As we all know, government are putting welcome new money into both mainstream and special schools, while it is important to stress that there is nothing in this legislation to affect policies around school closures or anything that weakens parents' rights in respect of special schools.
Proposals in Clause 1 seek to strengthen the rights of parents to choose a mainstream place for their child if that is what they want. But I believe that this is a fundamental point of principle about choice—principle, not ideology. I am delighted that government have chosen to remove the caveats that limit a right to a mainstream place on the grounds of the efficient use of resources and on the rather vague grounds of the "needs of the child" because both have led to discrimination.
The legislation retains an exception based on the "efficient education" of other children. Interpretation of "efficient education" is notoriously subjective and as a consequence this still leaves open the potential for discrimination. I hope that during the passage of the Bill we shall be furnished with more detail about regulation and guidance in this area and I hope that government will consider further monitoring of the use of this exception. A number of scenarios, assessed by any objective standard, have shown its operation to be deeply unfair.
652 I know of a case at the moment involving a six year-old girl with a moderate learning difficulty. She was successfully included in a mainstream nursery, but is currently being denied a place in a mainstream primary school on the grounds that her inclusion in the school would prejudice the efficient education of other children. She is currently not in school pending a tribunal decision. This means that she has absolutely no access to education. One would expect that if she thrived in a mainstream nursery, she would at least be able to show that she could thrive in mainstream primary education.
Other measures in the special educational needs clauses of the legislation are all for the good. Parent partnership schemes should help to foster more constructive relationships between parents, schools and local education authorities. This is a welcome change of culture and attitude. I should also like the views of the young person to be taken into account. Finally, we are starting to listen to parents; now let us start to listen to the young people themselves. I was glad to note that the press release of the Secretary of State's announcement today mentioned that the views of children with special educational needs would be taken into account.
The second half of the Bill covering disability discrimination also deserves a warm welcome. The concepts of unjustified less favourable treatment and substantial disadvantage offer a practical framework to make discrimination unlawful. I am concerned that this framework could be limited by regard to,the interests of other pupils and persons who may be admitted to the school".This is again rather imprecise and, if drawn too widely, could become a "get out clause". There is need for further explanation during the passage of the Bill and in the code of practice. Perhaps the use of all these limiting conditions will require monitoring.
I welcome the anticipatory duties contained in the Bill to encourage LEAs and schools to plan for greater disability access. Planning is absolutely critical to the success of meeting the needs of disabled children. Ensuring the infrastructure is right should mean, over time, that perceptions of disabled children will change. No longer will they be seen as awkward or as a problem: the right support will be offered as a matter of course. As the Bill is currently drafted, the emphasis is on encouraging schools and LEAs to plan for increased physical access. This is obviously not something I criticise, but I believe that equal emphasis should be placed on ensuring that the curriculum is made accessible. This is particularly crucial for pupils with learning disabilities who can achieve in mainstream schools but who may need a modification of the curriculum in order to fulfil their potential. Learning support assistants have a critical role in making the curriculum accessible. For children with learning disabilities we are concerned about access to learning itself rather than access to the places where education is delivered.
I am worried that overall there is insufficient coordination between the proposals in relation to disability and those in relation to special educational 653 needs. After all, in many cases we are talking about the same children. I also have concerns for children who may not come under the disability definition and will not therefore have their rights protected. Those with mild learning disabilities or communication impairments, particularly those who are young and may not have a confirmed diagnosis, could fall outside this definition. A typical example is a boy called Jamie who has a mild learning difficulty with associated communication impairments. In order for him to have full access to the curriculum there is a need to develop alternative teaching strategies in consultation with his speech and language therapist. Jamie's needs would not meet the criteria of the DDA and his school of choice would not be required to make reasonable adjustments to meet his special educational needs. This is as much a problem in further education as it is in school-based education.
The issue of the powers of the new special educational needs and disability tribunal in respect of discrimination cases will, no doubt, be explored in detail during the Committee stage. My initial reaction is that the overriding objective ought to be to resolve discriminatory situations in order for the child's education to be properly restored. We need to be sure that the tribunal has sufficient teeth to achieve this. There is a lack of confidence based on the difficulties in enforcing current tribunal decisions which I hope we can turn around. I welcome the extension of the Disability Rights Commission's powers to issue nondiscrimination notices. This should help to nip discrimination in the bud. The more that can be done to prevent the need for formal proceedings, the more effective the system will be.
I believe that we need to proceed with caution on the issue of financial compensation. There is a case for offering small sums of money in lieu of the aggravation caused to families—aggravation which should not be dismissed. Whether a workable system can be developed remains to be seen.
To round off, I should like to flag up a few brief concerns regarding the post-16 elements of the legislation. I must declare an interest as the Chancellor of the University of East London where the concept of lifelong learning has been enthusiastically embraced. The professor of lifelong learning gave me lunch only yesterday. As I have said in the past, I believe that the Government's lifelong learning agenda is heading in the right direction, and thanks to noble Lords of all parties joining forces in a constructive manner during the passage of the Learning and Skills Act, provision for those with learning difficulties or disabilities is central to that agenda. This Bill should further enhance those developments, but there are three areas worthy of brief comment.
First, the implementation of parts of the legislation covering physical access should be speeded up. The year 2005 is not acceptable when there are duties under Part III to introduce access to goods and services by 2004. Secondly, work-based training which currently sits under Part III of the DDA should come under this new legislation in order to benefit from a common code of practice. Finally, work placements and work 654 experience should also be covered by the new legislation since they often form an integral part of courses in further education.
I do not wish to dwell on more detailed matters of policy at this stage. That can wait until Committee stage. But I should like to close by expressing my support for this legislation. It offers many more opportunities than threats—opportunities which Members of all parties can extend if we co-operate to improve the Bill. I am delighted that this process of cooperation has already begun with Peers of all parties attending a meeting earlier today to discuss the Bill, and another is arranged before Committee stage. Mindful of the potential restrictions on parliamentary time which could emerge if there is a spring election for those in another place, I hope that Members of this House will use their time constructively and for the benefit of the next generation of disabled learners.
Shortly after our first daughter was born with Down's syndrome some 49 years ago, I received a letter—from the Ministry of Health, mark you—couched in these hurtful and hateful terms:You telephoned me on the 8th February about the services available for mentally defective children. I am assuming that the mongol child"—our daughter—you referred to will not be capable of education within the education system and will therefore have to be dealt with under the mental deficiency acts".In that year, 1952, thousands of parents of newly-born children must also have received such horrendous letters. For those children with physical and sensory disabilities the wording would have been different perhaps but the message would have been the same. They were to be excluded for life from so-called normal society.
Since those dark ages, successive governments have sought to bring forth legislation which would mitigate such draconian exclusion and they are to be congratulated on undertaking the journey. The Bill before us today, therefore, is another significant step along the long, and sometimes lonesome. road to integration and normality.
§ 4.14 p.m.
§ Lord Ashley of Stoke
My Lords, it was a great pleasure to listen to the noble Lord, Lord Rix, especially in view of his close professional and personal involvement with the issue we are discussing today.
The Government deserve the warmest congratulations on the Bill, in particular David Blunkett, Margaret Hodge and my noble friend Lady Blackstone. It is a vital component in creating the new Britain: one which is prosperous and fair, in which discrimination against disabled people becomes an ugly memory. It fills a deplorable gap in the DDA. It is a Bill greatly to be welcomed albeit one which needs clarification on some points and amendments on others.
I welcome the additional funding of £220 million over three years for the Schools Access Initiative and the £172 million over two years for improving access 655 to post-16 institutions. Such financial allocation illustrates that this is not just government talk but government action. I cannot see how they can talk about the Bill "on the cheap". There is emphasis by David Blunkett on the word "specific" in the code of practice as distinct from the original wording which was vague. These are major advances. They are a clear indication of the Government's aim. It is practical, not ideological. For the life of me, I do not believe that people can say that this is an ideological Bill.
Countless young, disabled people have suffered from discrimination, prejudice and neglect in education. One example of under-performance is that only 14 per cent of deaf pupils in mainstream school achieved five or more A to C grades at GCSE compared with a national average in England of 44 per cent. I declare an interest as president of the RNID. Like the noble Baroness, Lady Blatch, I, too, look forward to hearing the report on the neonatal hearing scheme. It is very important. I have no doubt that my noble friend Lady Blackstone will do what she can as soon as she can.
Only 60 per cent of the 22,000 blind and partially sighted children under 16 are educated in mainstream schools. This point involves the deaf and the blind. Many young people are placed at a serious disadvantage. That is the kind of person who will benefit enormously from the Bill.
There are many points to be made. We have all been provided with splendid briefing material from the Special Educational Consortium, the RNID, the RNIB and many others. I do not intend to make a lengthy speech in deference to the many noble Lords who wish to speak in the debate. I should like to move immediately from a very warm welcome for the Bill to my reservations and criticism which I aim to make wholly constructive.
The first issue is whether disabled children of school age who suffer discrimination should receive financial compensation. Of course, I favour the education remedy so that the discrimination is removed. There is no question but that that is imperative. But an important principle is involved here. It is equally imperative that such children should receive financial compensation. Some people suggest that such compensation would deprive the schools of the capacity to pursue an educational remedy. But such a point would be valid only if extravagant compensation were to be paid. I do not suggest that for one moment. I believe that such compensation should be reasonable and limited—not so limited that it fails to deter the local education authority from practising discrimination, but not so high that it would hit education provision. That is a vital deterrent.
Some LEAs are superb on the issue, but some are dreadful and recalcitrant. Any pleading to them without financial sanctions would be brushed aside contemptuously. They would behave like traditional bullies and continue with discrimination unperturbed, as we have seen in the past. They will change their 656 behaviour only when they are penalised. That is why I want compensation for those children who suffer discrimination at the hands of the LEA.
It is also important to ensure that the tribunals that deal with educational discrimination are no less effective than those that deal with race and gender discrimination. For sex and race discrimination, a court can grant an injunction that the discriminatory behaviour should not be repeated and order a financial remedy. I do not understand why everyone else should receive financial compensation—for social security, health or anything else—but not children who suffer discrimination. It does not make sense not to treat them in the same way. There is no argument for not doing so, provided that the compensation is reasonable and does not affect the education remedy. We can deal with the details in Committee, but I want to stress that tribunals should be empowered to award financial compensation. That would avoid having two bodies—the tribunal and the county court—hearing the same case.
I also welcome the Government's clear intention to strengthen the rights of children to have a mainstream education. The changes that they propose are admirable. To my amazement, some people are against the retention of any special schools, on the ground that that militates against the principle of mainstreaming. I do not agree for a moment. There is a specific case for special schools. My noble friend Lady Blackstone is right that in some cases mainstream schooling is not appropriate. The only trouble with the Government's proposals on mainstreaming is that they do not go far enough, because they maintain the caveat that children have the right to a mainstream education except when that would be,incompatible with the provision of efficient education for other children".That exemption has been abused in the past and there is no doubt that it will be abused again in the future, to the detriment of the child. We have to be careful.
I was going to call for the abolition of that exemption, but I do not think that I can achieve that. It is designed to permit the exclusion of severely disruptive children. I well understand that. However, it can also be used to exclude minor cases, such as autistic children with unconventional behaviour or a deaf child with communication difficulties. Some argue that the presence of an autistic child or of the communication support would be distracting. That is nonsense, provided that proper provision is made. The priority should be what is right for the child. We do not want excuses to exclude them. We should amend that exception. At the least, we should provide for the efficient education of all children—I underline the word "all".
Finally, I regret that bullying on the grounds of disability is not covered by the Bill, although I am delighted by David Blunkett's decision today to combat school bullying. He is a great Secretary of State and this is a very important step forward. We are complacent about bullying in schools. It is a scandal to allow it to go on. The bullying of disabled children is 657 one of the most fundamental reasons for the damage to their educational standards. It is mean, vicious and prevalent and it should be vigorously tackled. It is damaging to the concept of mainstream education.
Unfortunately, we have to admit, bullying also happens in special schools. The most effective way of tackling bullying, in addition to educational persuasion, is for every school to be committed to abolishing it. That includes bullying on the grounds of physical, sensory or intellectual impairment or special educational needs.
Schools are required to have an anti-bullying policy, but that is not working, so we need to do something more. We need a real, tough and uncompromising commitment that should be carefully monitored by the Government.
Working together with Ministers, we can all make a substantial difference to the lives of disabled children with the Bill. I warmly welcome it and wish it Godspeed.
§ 4.26 p.m.
§ The Lord Bishop of Bath and Wells
My Lords, I feel humble following the noble Lords, Lord Ashley and Lord Rix, and all the previous speakers in the debate. This is a very important subject. We on these Benches welcome the principle of inclusion for theological as well as educational reasons. It is right that as many children as possible should benefit from mainstream schooling. That is not only important for the progress of the child or young person, but an encouragement for greater integration and understanding with the child's peers, which we hope will spread out into wider society. With the right ethos in a school, it will increase respect for the child and avoid isolation and bullying, as the noble Lord, Lord Ashley, has just mentioned. For me it is one of the great delights to go to a school and see how, with the right teaching methods and the right ethos, children can learn not to victimise or to bully, but to support children experiencing difficulties, to the benefit of both.
However, we have two concerns. First, although we welcome the Minister's assurance, we are anxious that there will be a reluctance to statement, if such a statement were to lead to a special school placement, thus increasing costs. As we have heard, many children need a statement to bring adequate support to them, their parents, their carers and their teachers.
Secondly, as has already been said, the placing of a pupil with a special educational needs statement in a mainstream school must be appropriately funded and resourced for the education of the child or young person concerned and that of his or her peers to be effective.
The old ethical saying, "ought implies can" is helpful when thinking about special educational needs and disability. There can be a tension between the proper desire to include and expect the best that a person can give and the need not to try to exceed that person's capacity. It can be wrong to pressurise by 658 expecting too much, as it is wrong to expect too little. "Ought implies can" is a sound and pragmatic moral principle.
That may be particularly evident and contentious when a school has to propose to exclude a disabled pupil. It may well be argued that the pupil's behaviour derives from their disability. The excluding body would rightly have to demonstrate that such discrimination—and it would be discrimination—was justified and for the well-being of the pupil, the parents, the head teacher and the governing body. Part II of the Bill requires serious scrutiny to ensure that that process is just to the children and young people involved.
That leads me to refer to another concern, touched on by the noble Baroness, Lady Sharp. In the Children's Society, which £ chair, we attempt increasingly to engage children and young people in the matters that affect them. Indeed, at present we are setting up an advisory group of young people in order that they may share in decision-making and in the consultations that we have to carry out in making our major decisions. We believe that the participation of children and young people is important.
However, we learned that such participation is not always easy and that it requires much energy and time. Communication needs to be carried out in an open and generous manner where young people are trying to be involved. That must be the case especially with children who have disabilities. Sometimes their parents, too, find it hard to communicate or to understand what is going on. However, we believe that it is important to go as far as possible in discovering their thoughts and wishes.
Therefore, we welcome the parent partnership—particularly so if it is developed into a parent and child partnership. Consulting with parents and hearing their views is part of the inclusion because so often they are not heard, not understood, nor given the time to make their views known. The bureaucracy of tribunals, and so on, can be awesome for anyone, let alone for those who have poor communication skills. I believe that that is especially true where there is a history of abuse.
Obviously, another concern relates to funding. We are wary of the justice, or injustice, being determined by geography, with varied provision existing between LEAs. In the attempt to produce accessibility plans for schools, will it be ensured that they are consistent in what they provide? Are the financial provisions sufficient? How will the money itself be made accessible? Will successful LEAs receive the money and others not? Perhaps some of the highest needs are to be found in areas where LEAs are not successful and efficient. How will the proposals work for aided schools? Do such schools apply to the department or does the money trickle down through the LEA? Will the £0.7 million a year available for voluntary providers of education include the governing bodies of voluntary aided schools?
The Government are rightly saying that we should and can do more, even if the detail of the "can" or the "how" is not yet totally clear. We know that some 659 schools and LEAs are less sympathetic to those needs because of the changes which they believe will have to be made within the buildings, because of the pressure to achieve high positions in league tables and because of insufficient resources to carry out the changes. The Bill must provide the resources for schools and LEAs to do the right thing.
With regard to church schools, we must also accept responsibility on the grounds of the Christian faith to which we are committed and in which we believe, as well as the law of the land. The Lord Himself had a tremendous ministry of inclusion of those who were excluded and "ghetto-ised" by the rest of society. Two schools that we know of, for example, both have 1,000 pupils. One has 40 pupils on the special needs register; the other has two. That must imply a need not only for more just admission arrangements but for the provision of better opportunities for all. In terms of being civilised and moral, we must learn how to live together and to share the gifts and love that disabled children and children with special needs can give to our society. Such things are essential. We welcome the Bill and hope that it will reach a successful conclusion.
§ 4.34 p.m.
§ Lord Baker of Dorking
My Lords, I agree with much of what the right reverend Prelate the Bishop of Bath and Wells said. For a Conservative to say that to a Bishop of the Anglican Church today is a rare, if not unique, event.
First, I declare an interest in that I am the president of the Royal London Society for the Blind, which maintains and supports one of the leading schools for blind children in our country. It takes in children from the age of two and a half through to the age at which they sit GCSEs. It also has a special education college for some 90 students from 16 to 19 years of age. It is a centre of excellence not only in this country but internationally.
I apologise to the Minister. Later this evening I must take some younger people to a Christmas entertainment. If, by any chance, the curtain on that goes up before the curtain on this debate goes down, I may not be present to hear her reply but I shall read it very carefully.
The Bill has received a general welcome. It gives an enhanced power to parents to decide whether children with special educational needs should be educated in a mainstream school. That is the whole thrust of the Bill and its amendments to existing legislation. Perhaps I may say that, as a Member of Parliament over a period of 30 years, I did not have one case of a parent asking for a child with special educational needs to go to a mainstream school. But I had many, many cases of parents asking for a child to go to a special school because they felt that the provision by the local education authority was neither adequate nor appropriate. One of the Minister's colleagues, a former Member of Parliament, would probably agree that that is the pattern of experience of an MP. It is not that we have experienced cases which are in support of 660 the Bill; it is the other way round. Over the years, parents have felt that education authorities do not provide the degree of training and education required.
The legislation to phase out special schools and to concentrate more on mainstream schools started with the Conservative government in 1980. When I was Secretary of State in the late-1980s, I certainly supported the arguments for that. However, I begin to wonder whether the process has gone a little too far. Over the past 20 years, a huge number of special schools have been closed. In the area of blindness and visual impairment, half the schools have been closed.
One has to ask whether the provision of education to children who have special educational needs has improved. Of course, I understand the argument that it is right to include those children and that they should not be considered outcasts. They should not be considered as children with such special difficulties that they are not included. I also understand the argument that it is good for children in a school to have alongside them children who have special educational needs. They understand the problems and, probably for the first time in their lives, they realise that many of their contemporaries are very disadvantaged. That should provoke some degree of sympathy and involvement and improve the community spirit. That is the whole raison d'être of this policy.
However, we must ask whether it is achieved entirely satisfactorily. Earlier this year a report was published by the Royal National Institute for the Blind, with which I had no particular contact. It is one of the best reports on the provision of special education in our country. Approximately 22,000 children under the age of 16 suffer some degree of visual impairment. One thousand of those children and their parents were interviewed. Some very disturbing points are made in the report. The noble Lord, Lord Ashley, talked about bullying. One child said:I am getting bullied at school because of my eyes. They called me 'cockeye' and I'm scared of it because it's not fair on all the people who are like me with disabilities".A parent of a six year-old girl said:My daughter K… gets upset when people stare at her and call her names like 'cat eye'.The report states that half the parents of primary schoolchildren believe that their children were bullied as a result of their disability. Nearly three in five secondary pupils and students in further and higher education said that they had been bullied at some time. That is a disgrace by any standard. One might at least understand, if not forgive, bullying of the normal kind, but this is bullying of people who clearly are at a huge disadvantage in their schools. That is against the whole purpose of the policy.
There is the question of whether local authorities have provided sufficient facilities to deal with children with special educational needs. Perhaps I may refer again to the report; its comments are disturbing. I am sure that there are similar reports concerning the hard of hearing and the deaf. The report states:One in three blind and partially sighted pupils in mainstream secondary schools did not always get their school test and exam papers in their preferred format".661 If pupils are not tested in the preferred format, they cannot take the test. The report goes:One in five secondary pupils did not have the necessary specialist equipment to do their homework".Twenty per cent of the children we are encouraging to go to mainstream schools did not have the equipment to do their homework. That is a disgrace.Half of the parents whose children had complex additional needs were not in touch with their local authority specialist visual impairment teaching service".Such parents had no idea what was happening to their children.Two in three parents [66 per cent] of children with complex additional needs who felt their child needed an 'interpreter' said there was never one available".An interpreter is someone who talks to a child to try to define a problem. In schools they are sometimes called "intervenors".
That is an indictment of the provision of specialist education in mainstream schools. I say at once that I am not making political points. I know perfectly well that some education authorities do well in that area; some not so well. In June this year I wrote to Mr Woodhead, the chief inspector of schools, who has just resigned. I asked whether there was any comparison between the provision of specialist education in mainstream schools and that in specialist schools. His reply was rather extraordinary. He wrote:The inspectorate has not undertaken any specific work on the provision of education for blind and partially sighted children but all the special schools catering for such children in the state sector have been inspected and reports have been published. Most schools for Visually Impaired children have had very positive inspection reports. We have not undertaken any specific comparisons between maintained and non-maintained VI schools".I consider that an indictment of the system, not of the Minister. I thought that the system would throw up a comparison between the provision of special education in local authority services and that in specialist schools. As far as I can see from the letter, no evidence is available. That does not undermine the basic provisions of the Bill, but to some extent it brings them into question. As the debate proceeds, perhaps the Minister will be able to adduce evidence. I do not expect her to do so today, but her officials will now be busy trying to find evidence of comparison.
I should like to make a case for special schools. The right reverend Prelate mentioned them. The noble Lord, Lord Ashley, mentioned their importance. Special schools tend now to become the residual teaching facilities for children with manifold disabilities. Dorton House provides not only for the visually impaired but for those with severe behavioural problems. I begin to wonder whether that should be the case. I am not so sure that there is not a case for more special schools. Perhaps that is rather an unpopular thing to say today, but it may be right.
Special schools have a concentration of skills, experience and equipment. Many are supported by charitable foundations. Compared to state provision, we have been able to "over-provide" Dorton House 662 with equipment from money which I helped to raise. Such equipment is necessary for the hard-of-hearing, the visually impaired and the physically disabled.
When parents appear before tribunals which decide whether their children should attend a special school, local education authorities now appoint counsel to protect their position, particularly because of the Human Rights Act. Parents do not have that facility. There is not an even playing field as regards the rights of parents and those of local education authorities. I believe there should be.
Perhaps I may make a further comment about special schools, particularly those for the visually impaired. As I have stated, there are 22,000 visually impaired children in our country. There are 80 different eye conditions. How is it possible for local education authorities to have that information? For some children, large print is important; for others, small print is important. Some children need a bright light; others need a darker light. A tremendous amount of knowledge arid expertise is required, most of which exists in our special schools. The same applies to special schools for the hard of hearing, which are centres of excellence in that area.
I suggest that special schools should be used in many more ways; for example, for the initial training of teacher assistants and support workers; for staff development of teachers, social workers and health professionals, and for collaborative work aimed at early intervention support for parents, which we heard about today. When parents suddenly discover that, for one reason or another, at a very early age their child cannot cope they are adrift in a world about which they know nothing. Where do they go for assistance and help? They become worried and alarmed. There is a real recognition of the role of special schools in our society today.
I do not believe that the Government realise the cost of what they are doing. Perhaps I may stress that I am not trying to make a political point. In the financial memorandum, the Government state that the Bill will cost £1.5 million to £3 million. They also state that over the next three years they will spend £200 million—a point raised by the noble Lord, Lord Ashley. Two hundred million pounds among 30,000 schools is £7,000 per school over three years. That will be for ramps and handrails. It will not cover the cost: of employing one extra teacher; nor even one-third of a teacher. Yet the provision of special education should mean a teacher-pupil ratio of 1:2 or 1:3.
I do not believe that the Government have estimated the financial consequences of what they are doing. When parents have the right to decide that their children should go to a mainstream school, they will say, "I want my child to be taught Braille"; "I want the latest devices because she is half deaf"; "I want special training because she is physically disabled". Perhaps I may say to the Minister that that costs a huge amount of money. I believe that there is a time bomb ticking away in the whole area of special education.
My final point concerns a matter which has been raised before. I refer to those children who have special behavioural difficulties. Here, I believe the 663 Government face both ways. Last week, Mr Blunkett, the Secretary of State for Education, clearly stated that he wanted to take stronger action against bullies. That means first trying to address the question of bullying, but it also means excluding bullies from schools and placing them in special units. It recognises that behavioural difficulties come from anger, impatience, contempt, intolerance, or whatever. That is rather against the whole drift of this legislation, which is inclusion. Here we have a conflict. I do not ask the Minister to address that conflict tonight, but to reflect upon it.
If we decide to act against bullies—not only bullies in the disabled area but bullies generally—we shall exclude children. I am not against that. I am in favour of identifying children with behavioural difficulties in primary school at the ages of five, six, seven and eight. All teachers will tell you that they can identify those children at that level. If we try to identify them at that level and put them into special units or special schools, we have a chance of doing something with them, whereas we have no chance at all when they reach 10, 11, 12 or 13. That has been proved in different schools throughout the country. I know of one in north Oxford which takes primary schoolchildren from Oxfordshire at the age of 6, 7 or 8, who are extremely disruptive. They handle them and try to integrate them back into the state system of mainstream schools. So a conflict exists in the Government's policies. I ask them to address it, but I do not suggest that there is an easy solution.
Finally, the provision of education to those children who have special needs is one of the most important actions we can take. We must try and do it right. There is no standard position. Some will go into special schools—I suspect more will need special schools. But this Bill moves in a direction which could be helpful provided the Government are prepared to fund it. The funding requirements of the Bill will be astronomic in educational terms; much greater than the Government indicated. So I hope that in the course of the Bill passing through its stages in this House we will be able to explore all those matters. At the end of the day we want to ensure that those children who are already burdened with enormous disadvantages are somehow given a leg up in life.
§ 4.51 p.m.
§ Lord Morris of Manchester
My Lords, it is a pleasure to follow the noble Lord, Lord Baker. We have been fellow parliamentarians for upwards of 30 years and I am always impressed by his abiding skill and sincerity, as well as by his reasonableness, in arguing his case.
I warmly welcome the Bill and commend the Government on giving it such high priority in their legislative programme for this new parliamentary Session. Today my noble friend Lady Blackstone and her ministerial colleagues at the Department for Education and Employment deserve special credit for their crucially important role in bringing the Bill forward. I know from my own ministerial experience 664 that success like theirs does not come gift-wrapped. It has to be worked for. I congratulate my noble friend and her colleagues on an important achievement for disabled children and young people and their families, one that it may be appropriate for me—the House knows of my long involvement in this policy area—briefly to put into its historical context.
This Bill traces back, first, to the enactment of my Chronically Sick and Disabled Persons Bill 1970, Sections 4 to 8 of which were the world's first-ever legislation on access for people with disabilities to schools and places of further and higher education, and thus to mainstream schools and tertiary educational opportunities. Secondly, the Bill is a lineal descendant of the report of the committee of inquiry—the Committee on Restrictions Against Disabled People (CORAD)—that reported to Sir Hugh Rossi, then the Minister for Disabled People, in 1982. Chaired by Sir Peter Large, the committee of inquiry was one I had appointed while I was the Minister in 1979 to consider the case for legislating to end unfair discrimination against disabled people.
The CORAD report emphatically supported legislative action, not least for the purpose of improving the educational opportunities of disabled children and young people; and there were high hopes among their parents in 1982 of better provision in the years immediately ahead.
Sadly, the Government's response to the report was to say that persuasion was preferable to legislation and there was no action on the report, notwithstanding repeated attempts by individual Members of Parliament to give it effect. Some of their Private Member's Bills—the first of which was introduced under the 10-minute rule in another place by my good and noble friend Lord Ashley, who then as now chaired the All-Party Disablement Group—had Second Reading debates; but none made progress into Committee.
While one Minister after another sat on the CORAD report, other countries acted to outlaw unfair discrimination on the model recommended by CORAD, notably the United States where, with huge all-party congressional backing, the Americans with Disabilities Act was signed by President George Bush and became law in 1990. Twenty years earlier we had been a world leader. But now, much to the dismay of all the major disability organisations, we were among the world's followers in a field where quick action on the CORAD report would have kept us in the van.
That was the background to my decision to draft and promote the Civil Rights (Disabled Persons) Bill—for which I had won parliamentary time for a Second Reading debate in another place in the Private Members' ballot of November 1991—to end the delay in implementing the report of the committee of inquiry I had appointed 12 years earlier. But although the Bill, which my noble friend Lady Lockwood presented for me in your Lordships' House where, much to the honour of this House, it twice completed all its stages, it was systematically obstructed by Government Whips in another place; first, when I moved its Second 665 Reading on 31st January 1992, and again when Roger Berry and Harry Barnes used their good fortune in subsequent Private Members' ballots to reintroduce the Bill.
Obstruction of the Bill led to disquiet, not only in the organisations of and for disabled people, but also among MPs of all parties. By 1995, when a clear majority of all MPs declared their support for the Bill, the Government finally changed their policy and introduced the Disability Discrimination Act of that year. But it was a very weak version of my Civil Rights (Disabled Persons) Bill. Without my Bill's provision for a disability rights commission, the 1995 Act was what the equal opportunities legislation for women would have been without the Equal Opportunities Commission—a car without an engine. Again, the total omission of education from the Act blocked the path to equality of educational opportunity for disabled children and young people.
Those two major defects in the Disability Discrimination Act have now been addressed and, while there are still problems to tackle, this Bill is—as James Strachan, chief executive of the RNID has said—"great news" for people with disabilities. He goes on to say,Disabled children have finally won the right to be educated on the basis of need not disability. Challenging discrimination in schools and ensuring the right to a decent education will give them the sound start they need to become independent and successful adults".Like James Strachan, the Disability Rights Commission (DRC) also sees this Bill as rectifying a major weakness of the 1995 Act. It looks forward to producing the codes of practice for which the Bill provides and to setting up a conciliation service to secure the rights of its beneficiaries. The DRC acknowledges, however, that there are some points that will merit detailed parliamentary attention as the Bill proceeds—at high speed, one hopes—to the statute book.
Thus Clause 1 of the Bill states that caveats regarding inclusion under Section 316 of the Education Act 1996 should be retained, in particular one referring to,the provision of efficient education for other children".That applies to children with special educational needs, many of whom are also physically or sensorily impaired. The Disability Rights Commission rejects the need for such a caveat since it presents a potentially negative image of disabled children as disruptive to the effective education of other children; secondly, because there are already sufficient safeguards in place, as the noble Lord, Lord Baker, will know as a former Secretary of State, for excluding pupils who are causing major disruption to the education of others.
Similarly the DRC is concerned about the provision in Part II of the Bill that regard shall be had, when considering including disabled pupils/students and persons who may be admitted to the school/institution as pupils/students. It is felt that this may be seen as implying that the presence of disabled pupils/students is to the detriment of other pupils/students attending an educational institution.
666 Clauses 17 and 22 make it clear that no financial compensation or award of damages is envisaged when discrimination has taken place within schools. Many of my correspondents from disability organisations, all of them held in high regard on both sides of this House, want that questioned and consideration given to reasonable compensation for such discrimination.
Another important issue that merits detailed parliamentary consideration is the omission from the Bill of bodies such as the General Medical Council which thus may still be able to argue that they are outside the remit of the Disability Discrimination Act. It is widely felt that it would be more helpful to achieving an inclusive society if they were brought within the Bill.
But while this is the right moment to put down markers, it is not the day for detailed scrutiny of the Bill. That is for another day, before when I hope my noble friend will liaise very closely with the disability organisations—not least Mencap, Sense, the RNIB, as well as the RNID, the National Autistic Society, the Dyslexia Association, the Special Educational Consortium and the Centre for Studies on Inclusive Education—about their thoughts for improving the Bill.
Today is one for wishing my noble friend Lady Blackstone all possible success in steering this humane Bill through your Lordships' House. It is a Bill, first and foremost, enabling children and young people with disabilities to become a part of, instead of being apart from, our society.
§ 5.2 p.m.
§ Baroness Brigstocke
My Lords, first, I must apologise to the Minister and to the House because I may not be able to stay until the end of the Second Reading debate. I have a longstanding evening engagement.
Secondly, I must declare my interest. For the past eight years, I have been chairman of Landau Forte College, a large, fully comprehensive school in inner city Derby. It is one of the 15 city technology colleges set up by my noble friend Lord Baker when he was Secretary of State for Education and Science in the previous government.
I also visit secondary schools all over the country on behalf of a large charitable foundation in order to assess the schools' needs for extra funding. I therefore realise how many schools are woefully short of money.
I have two concerns. The first has been mentioned at length today. Of course we all want to ensure that children and young adults who are disabled—whether physically, mentally or emotionally—are given the chance to live life to the full, to have the best possible education and training as well as being able to take part in the many opportunities which now exist in musical, physical and dramatic activities which are such a splendid characteristic of our best schools today.
But the proposed legislation which we are considering is rather woolly. The DfEE means well and the proposals look good on paper, but the 667 practical arrangements for delivering them have not been fully thought out. I want to make it clear that I applaud many of the proposals; for example, for children who are dyslexic or dyspraxic, expert individual help from special educational needs teachers working closely with mainstream subject teachers can certainly do well by them. But—and I echo, perhaps less strongly, what was said by my noble friend Lord Baker—the resources needed are enormous. It is proposed that £220 million will fund the new duties placed on local education authorities, local authorities and schools. All schools in England, Wales and Scotland will receive £50 million in the first year, £70 million in the second and £100 million in 2003–04. That is manifestly not enough, especially when schools with old buildings will have to spend most of their allotted grant on wheelchair access.
My second concern is that the Bill's 42 clauses and eight schedules could well impose a rigid pattern in an attempt to fit everyone into a rigid framework. At Landau Forte we prefer to think in terms of individual rather than special needs. Every single child has individual needs and they cannot all be met by one blanket, complicated framework.
By all means bring into the mainstream schools—and it would be good to have independent schools involved—the children who, with specialist help, can profit from the arrangement. I believe that we already have a good system at Landau Forte, which is a school of just over 1,000 students. We have three full-time and two part-time individual needs specialists. The individual needs specialists teach small groups separately but at other times they teach alongside the individual subject teachers. One member of the subject team is the responsible link between the specialist teachers and those in the team.
The whole arrangement depends on individual fine-tuning to do the best for students with dyspraxia, dyslexia or attention deficit disorder, for which there is the added medical complication of having the drug Ritalin administered by the school nurse. The physically disabled—some in wheelchairs and some with epilepsy, visual or hearing impairment or other hidden medical conditions—are also well and happily integrated. But the badly autistic, completely thrown in on themselves, and those with emotional and behavioural difficulties, will often need very specialised help in a special school. Their parents are at the moment worried that this Bill might cause those children to be placed, against the wishes of the parents, in schools which are not suitable. I am concerned that, despite what the Minister said in her opening remarks, there is a danger that even more special schools will be closed. I think of a girl who last year shouted, screamed and was quite out of control in class. Not only did she disrupt the lessons for everyone else but clearly she was herself deeply distressed. Since moving to a special school she is much calmer and happier.
I also make a plea for bright pupils who are not necessarily academically inclined; often not. Such children have very real individual needs. They do not need to be segregated unless they suffer from 668 Asperger's syndrome, but they need special provision and, most of all, intellectual stimulation and understanding. I hope I was wrongly informed when told recently that these children are known in the DfEE as "severely able".
I ask the Government to reassure schools and parents that the Bill will provide enough money and specialist teachers. There is a chronic shortage of school teachers in almost all disciplines at the moment, particularly male teachers who can do much to help emotionally disturbed boys and those who display laddish culture and have special needs. Please reassure schools and parents that there will be sufficient flexibility and attention to individual needs over a wide spectrum of need, disability and ability. Please also remember that it is easier to sit behind a desk to plan a new framework than for a young teacher, even with modern white board technology behind her, to stand alone in front of a large class of teenagers, several of whom are disruptive and the rest disrupted.
This is an ambitious Bill which contains many good proposals, but if the Government really want to bring into mainstream education all of these very special children and young adults, they will need extra help and equipment to integrate and keep pace with their school fellows. I very much doubt that the proposed funding is anything like adequate for that enormous task. The greatest care must be taken in assessing students and their individual needs. It is essential to continue to make proper provision for those students who cannot be accommodated in mainstream schools because they make the task of young teachers quite impossible. I ask for some assurance about the criteria to be used to decide which students should and should not be in special schools. I also seek an assurance that special schools will be retained and supported for those students who cannot be expected to thrive in mainstream schools.
§ 5.14 p.m.
§ Baroness Warwick of Undercliffe
My Lords, I congratulate the Government on the introduction of this legislation, which will make possible major improvements in the provision for disabled pupils and students across the whole education system. Its emphasis on inclusion, excellence and choice and lifelong learning is admirable, and I very much support it. I have been enormously impressed by the expertise and passionate commitment of other distinguished speakers in this debate.
I shall be brief because I intend to confine my remarks to that part of the Bill which deals with higher education. In doing so I declare an interest as chief executive of Universities UK. Further and higher education will have a duty under the Bill to do two things: not to treat disabled students less favourably, without justification, than students who are not disabled, and to make reasonable adjustments to ensure that people who are disabled are not put at a substantial disadvantage to people who are not disabled in accessing further and higher education.
669 I was pleased to note that in introducing the Bill the Minister recognised how much the proposals in the Bill confirmed the good practice already introduced arid adopted by many universities which do a great deal of work with disabled students. However, the specific issue to which I draw the attention of the Minister is the need for care in assessing the compliance costs for the higher education sector. I was concerned that no regulatory impact assessment was undertaken during the consultation, which means that we are all somewhat in the dark.
Many institutions have already been working towards the accommodation needs of disabled students and have often made very imaginative use of existing resources. But inevitably the new statutory demands mean new additional costs, particularly in terms of physical facilities and the use of computer, IT and auxiliary aids which have capital and recurrent cost implications. I realise that the Explanatory Notes to the Bill are an attempt to get at those costs but they are not very detailed. The Secretary of State's grant letter to the Higher Education Funding Council for England stated that £56 million would be provided to improve access for disabled students in HEIs over the two years to 2003–04. Although that is very welcome, it is not based on a regulatory impact assessment. Therefore, I hope that the figures can be looked at very carefully during the course of the Bill. Some work undertaken in the sector with a small number of pilot institutions suggests that the costs might be as large as £250 million rather than the £56 million quoted in the Bill. We all want the Bill to work. Therefore, I urge my noble friend to consider this matter. The Bill is so positive that it would be a great pity if it did not achieve the success promised because of pressure on resources.
I hope that the Minister will also look at the question of institutional responsibilities for the services that they utilise. The relationship between the institutions' liabilities under the new legislation and those of other organisations which utilise institutional facilities requires closer attention, as does the provision of work placements, field trips, international exchanges and study-abroad components of courses. Although these are detailed issues, I hope that they can be considered in the statutory code of practice which will accompany the legislation.
The Disability Rights Commission will consult interested bodies, and on behalf of Universities UK I welcome the opportunity to take part in the consultation. I join many other speakers in the debate in giving a very warm welcome to the proposals in the Bill.
§ 5.19 p.m.
§ Baroness Darcy de Knayth
My Lords, I am particularly delighted by this Bill because during the passage of the 1981 Act I sought to remove the caveats to what is now Section 316 of the 1996 Act and spent the entire passage of the Disability Discrimination Act 1995 in abortive attempts to include education. I extend my heartfelt congratulations to the Government on achieving that. Certain areas of 670 concern remain, and I hope that we can all work constructively to improve the Bill further and ensure that it really works.
The noble Baroness Lady Uddin, who has waited years for this Bill, is extremely sorry not to be here: her youngest child is ill. I am sure that the noble Baroness will be back at full strength in Committee.
It is most welcome that in Clause I the reference to the efficient use of resources has gone. Like the noble Baroness, Lady Sharp, l would have hoped that new Section 316(3)(b)—the provision of efficient education for other children—could also have gone, because that could be used as a get-out by some LEAs. Therefore, I hope that the code will clearly advise LEAs against that.
I am delighted that the extension of anti-discrimination legislation covers pupils and prospective pupils with disabilities. Not all disabled children have SEN, but the vast majority of the 250,000 plus children with statements will fall within the legal definition of disabled. I am concerned that not all will be covered—my noble friend Lord Rix gave the example of the child with a mild learning disability—particularly if he or she is young and the condition is, as yet, unconfirmed. I hope we can ensure that all children who need protection are covered by the legislation.
The Independent Panel on Special Education Advice (IPSEA)—I should declare that I am a member—welcomes extension of the DDA as a significant advance. IPSEA has advised on cases where children have been discriminated against on the grounds of their disability, left out of school trips, left out of class photographs for image reasons, and even excluded from school because of their needs. IPSEA says that instances of this kind of discrimination are few in number in comparison with the number of children who are denied the special education that their needs call for.
As the Bill stands, it will not address the problem of a denial of special educational provision because it will not create a duty on schools or LEAs to provide aids and services. These are excluded under new Section 28C(2)(b). A denial of provision will not constitute discrimination under the Bill. We need to explore how we will ensure that protection. Why are they excluded? The post-16s are covered. I understand that the Disability Rights Task Force recommended that it was unnecessary because the Education Act 1996 already provided the protection needed.
The noble Baroness, Lady Sharp, has removed magnificently a huge chunk of my speech, for which I am grateful, by referring to the Disability Rights Task Force and the conclusion of the 1992 Audit Commission and making the point concerning the LEAs failure to specify provisions in Part III of the DDA. I am delighted also with the announcement today of the Secretary of State, Mr Blunkett, that the word "specify" in the code of practice will stay. That will make the most enormous difference.
671 I am grateful to the Minister for sending me a special edition of the SEN update. I have not had time to digest it, so some of my anxieties may have been addressed. But it appears that children with statements will have a stronger chance of getting the help they need. I remain slightly worried about the children without statements who come under the DDA but who do not have protection in the face of the denial of aids and services. Perhaps the Minister can assure me that the SEN policy will give them sufficient cover. It would be regrettable if people had to revert to statementing in order to be sure of securing the provision they need. I hope that the Minister can reassure us, or that we can explore the issue further in Committee.
I welcome the very positive move to further inclusion by strengthening parents' right to opt for a mainstream school place for their child. It will lead to greater inclusion if parents are assured that their children will receive the provision and service they need. The excellent news today will go a long way towards including children with statements. I hope the Minister can offer us the same assurance for those without statements.
I turn now to post-16 issues. It is a great pleasure to follow the noble Baroness, Lady Warwick. I am afraid that noble Lords will find my contribution a bit of a comedown after listening to her. However, I was delighted that she did not touch on the same matters as I shall. I was praying that I would not have to change my speech at half a second's notice.
The legislation is extremely welcome, but there are some points of concern and some that need clarification. I consulted SKILL, which is the National Bureau for Students with Disabilities, for its view. I should declare that I am the president of SKILL. The timescale, mentioned by my noble friend Lord Rix, is of great concern to the organisation. It feels that 2005 is too late for the implementation of those parts of the legislation covering physical access. Education institutions already provide many non-educational services which are covered by Part III of the DDA—catering provision, careers services, sports facilities. They have been preparing for better access by 2004. They will be transferred to the provision under the new legislation and therefore given a new date of 2005. Why should students have to wait an additional year for the service that other service users will get in 2004? Why not keep the deadline of 2004? It is correct that institutions would have to take immediate steps to ensure the education provision was ready by then, but many of them have already taken such action because of the requirements of the inspectors and, in higher education, the quality assurance agencies. Therefore, it should not be too much of a problem.
It is a matter of concern that, as with the under-16s, because of the definition of disability not all students will be covered. Their impairment may not have a substantial adverse effect on normal day-to-day activities. It would exclude perhaps the student with dyslexia who could only concentrate for short periods 672 of time. To compete fairly with others, that student might need some accommodation in order to do a three-hour exam.
My noble friend Lord Rix mentioned work-based training. When the learning and skills council is established in April 2001, further education and training will come under a single funding body. The distinctions between work-based training and FE will become increasingly blurred. SKILL believes that work-based training is more akin to FE than to other services under Part III and should come under the new legislation and benefit from the accompanying code of practice.
There is great concern in HE about students who receive no external support. Institutions do not receive funding to cover the students who do not receive a disabled student's allowance. They think that the DSA covers all students, but nursing students, midwifery students, post-graduate students in Scotland, and international students are not covered. I hope that the Minister will undertake to look at that—not necessarily now—to find some solution.
I turn to the role of professional bodies. Educational providers are justified in discriminating against disabled students where professional requirements prevent someone entering a profession with a particular disability. But some professional bodies unnecessarily restrict access to disabled people who would be able to practise a particular profession with appropriate adjustments. SKILL recommends that the DDA be further amended to lay a duty on all public bodies, including professional bodies which are completely outside discrimination law at the moment, to promote equal opportunities for disabled people. Therefore, this discrimination can be outlawed.
Finally, I turn to work placements, which the noble Baroness, Lady Warwick, touched on. SKILL feels that this issue is very important. Many students in further and higher education are expected to attend work experience placements during their studies. Vocational courses such as nursing, social work and teaching require it. I am sure the Minister knows that research has shown that work experience is one of the most crucial factors in finding a job. I see that the noble Lord, Lord Davies of Oldham, sitting beside her is nodding.
Under the Bill institutions are to be made responsible for the accessibility of courses, including any placements, to the individual student. But it is not always possible for the institution to control what goes on on the outside. I hope that the Minister can give some thought to solving that. Probably the education provider should be the principal party responsible for the overall planning and organisation of the supported placement, but the work provider should also have some legal responsibility on a day-to-day basis. SKILL suggests that perhaps one should have a named person on site who has built up a relationship with the education provider and student in advance and is aware of the potential issues. That is a matter which I hope can be sorted out.
673 What I have suggested is only a tweaking and a fine-tuning of an extremely welcome Bill. I hope we can ensure that it works really well to enable pupils and students with special educational needs and disabilities to flourish in an inclusive environment.
§ 5.30 p.m.
§ Lord Clement-Jones
My Lords, I am pleased to participate in a debate in which we have already heard so many important and expert contributions. I cannot lay claim to the expertise of those noble Lords who have already spoken but I declare an interest as the chairman of the development committee of a school for children with autistic spectrum disorder and a member of the All-Party Group on Autism. I also declare a strong interest in children with ME and membership of the All-Party Group on ME.
My noble friend Lady Sharp has comprehensively laid out the approach of these Benches to the Bill. I certainly hope that we can build consensus on the improvements that can be made as the Bill passes through the House. I welcome very many aspects of the Bill. I suppose that it would be churlish to say that the Bill was somewhat delayed. On the other hand, one can only be impressed by the fact that the department has managed to secure a non-political Bill of this nature in a pre-election period.
First, I particularly welcome the general philosophy of inclusion. I interpret the thrust of the Bill as providing parental choice as to whether children should have mainstream schooling. Inclusion is all very well, but there must be adequate support. It cannot be used by education authorities as an excuse to save money on special schooling if that schooling is appropriate for the child. It certainly cannot be used as an excuse to close special schools. There is quite often a lack of support in mainstream education. More learning support assistants are needed and adequate training of class teachers must be secured. I was very heartened by the Minister's assurance—I think I quote her correctly—that there will be a continuing and vital role for special schools. I welcome that assurance.
Secondly, I welcome the new duty on LEAs to provide parent partnership services and independent conciliation. I certainly welcome the new duty on LEAs to comply with the decisions of SEN tribunals. However, as a number of noble Lords have said, we need to go further and ensure that compliance is monitored through appropriate mechanisms and that there are the resources to do that.
I wish to raise a number of specific issues. New Section 316 provides for the deletion of two of the three conditions which permitted LEAs to avoid inclusion. But, in the view of many of the relevant voluntary organisations, the third condition potentially provides a major loophole. LEAs can avoid inclusion in a mainstream school if it is incompatible with the efficient education of other children. I certainly agree with the noble Baroness, Lady Darcy de Knayth, that that could well be a problem. We should debate the issue further as the Bill goes through the House.
674 I have concerns about the early years. Early years assessment and intervention is vital for conditions such as autism. Assessment provision in early years, however, is voluntary. It is not a duty on LEAs. The code of practice for SEN treats the under-fives quite differently from those above that age. There should at least be a duty to provide assessment and support. As the Government have, to their credit, recognised in programmes such as Sure Start, the early years are crucial. I very much hope that that point will be addressed as the Bill goes through the House.
The Minister and I have not exactly crossed swords on the issue of identification of the various conditions which could be classified under special educational needs but we know that certain conditions are on the increase. Certainly, autistic spectrum disorder comes within that category. As many as one in eight children could be suffering from ASD. Why are schools not obligated to return to the Government a break-down of those children with special needs and a break-down of what those special needs are? I have raised that point with the Minister on a previous occasion. At that time she prayed in aid the report produced more than a decade ago by the noble Baroness, Lady Warnock, which claimed that children would be stigmatised if there was such a categorisation. Surely, we must have gone beyond that stage.
Is it not vital to identify what those conditions are and the kind of facilities and support that those children need? Is it not vital that that should be clone as soon as possible when they arrive at school? Is that not what inclusion is all about? Stigmatisation is surely not an argument in those circumstances. If it can be done in Scotland, why can we not do it in England? In Scotland, the latest census on arrival at school has included all that information.
Another area concerns me. I refer to the importance of quick assessment. Section 329 of the Education Act provides a duty to assess children for special educational needs at the request of a parent only within six months. New Section 329A, which gives to a responsible body—often a head teacher—the same power to request an assessment, still provides only for that assessment to be made within six months. Six months is an eternity for a young person. Six months is an age. Why cannot an assessment be made by LEAs within a much shorter period of time? Should not LEAS have the resources to do that?
There is a thumping great hole in the next part of my speech because the Minister made a welcome announcement about changes to the SEN code of practice. I suspect that other noble Lords who are to speak have been scribbling out great passages of their speeches. I am delighted that at the last minute changes have been made to the code of practice. Those assurances from the Minister are extremely welcome. Therefore, as the Bill goes through the House, we shall not need a great debate about the exact meaning of the word "specify".
Another area of concern to noble Lords is the joining up of issues relating to disability and SEN where they overlap. Another area of overlap relates to 675 sick children. On average, children with ME are ill with it for about four-and-a-half years, which is a horrifyingly long time in the childhood of a young person. At what point do those children become assessable under the code of practice? At what point does Circular 12/94 give way to the SEN code of practice? Who makes that decision to switch across, in a sense, to the code of practice?
Generally, as far as concerns SEN and disability, other noble Lords have referred to the coherence between the SEN and disability provisions, both as regards whether there can be a common right of appeal where there is overlap and also in general terms as regards how the two codes will relate to each other. Why should there not be a cognate duty on those catering for those with SEN to provide for reasonable adjustments? Why should not mainstream schools be obligated to make those adjustments as well?
I turn to Clause 13 and the duty to plan. This is a step forward, but do we not need to plan in order to increase access to the curriculum as well as to the physical environment? I very much hope that we will debate that point as the Bill passes through the House.
Finally, I very much thought that the noble Lord, Lord Baker, and the noble Baroness, Lady Brigstocke, hit the nail on the head when they referred to resources. The Explanatory Notes show that only £18 million seems to be indicated in additional resources for SEN and that that is for parent partnership services and independent conciliation. Without the resources, how on earth will our mainstream schools cater for children who may be coming in from special schools? We are living in cloud cuckoo land if we believe that additional resources are not required. Ironically, it may well be that a great deal of our debate should not be about the precise wording of the primary legislation or the codes of practice. Basically, we should be having, and should continue to have, a resource debate, although it may be that throughout the passage of the Bill we do not address that point.
§ 5.40 p.m.
§ Baroness Wilkins
My Lords, I join with other noble Lords in giving a heartfelt welcome to the Bill. The Government are to be commended for giving the Bill such a high priority in this parliamentary Session. Many of its provisions have been long awaited and are warmly welcomed, in particular by those who have experienced the restricted education offered within the special school system and have long campaigned to include education in the Disability Discrimination Act.
However, much as I welcome the intention of the Government to put an end to disability discrimination in education, sadly, the Bill fails to achieve it. In its present form, it does not protect or promote the human and civil rights of all disabled children. It still allows for some children to be excluded from mainstream schools on the basis of their impairment. It can be argued that that goes against international 676 human rights agreements. That, I believe, is the fundamental problem with the Bill in its present form. But, as I have already said, there is much to welcome in Part I of the Bill, especially in the wider range of help, information and support which will be made available to parents.
The Bill sets out a range of provisions such as the requirement of LEAs to provide parent-partnership services and the setting of a time limit on the implementation of SEN tribunal decisions. That will help to establish good working relationships between parents, schools and LEAs and will give parents much greater confidence in the appeal system.
Part I of the Bill provides welcome amendments to Part IV of the Education Act 1996, which will strengthen the rights of children with special educational needs to be educated in a mainstream school. As many other noble Lords have already noted, it has removed two of the much-criticised caveats in Section 316 and has put the burden of proof on to a school or LEA to demonstrate that a child should not be given a mainstream place, rather than the current situation in which parents have to try to prove that their child should be included.
My main concern with this part of the Bill is with Clause 1. I shall largely confine my remarks to that clause. This is the clause that retains the third caveat. It states that a child with SEN shall be educated within mainstream provision unless that is incompatible with the wishes of his parent or it prejudices the provision of efficient education for other children. Disabled children do of course have a civil right to education. They also have a human right to,active participation in the community",as set out in Article 23 of the United Nations Convention on the Rights of the Child. The problem with Clause 1 of the Bill is that it assumes that some unequal access to education and active participation in the community is justified and inevitable. I believe that that is in itself a prejudicial attitude. Clause 1 explicitly excludes access to human and civil rights for some children on the basis of their impairment.
Retention of the third caveat means that a child with a statement can be excluded from the mainstream without even being given a chance to be in a mainstream school, based on the supposition that their inclusion would be incompatible with the efficient education of other children. In the case of Crane v. Lancashire, it was considered that because Nicky Crane needed to leave lessons some five minutes earlier than other pupils in order to miss the crush in the corridor, this would interfere with the efficient education of other children. Lancashire LEA was relieved of the burden of duty to integrate him in a mainstream school.
What other reasons will be used to invoke this exclusion—if children make noises or need more support than other pupils? Will it be invoked if they need work to be translated into braille or BSL, or need food in lessons because they are diabetic; or will it be only when they are disruptive and constitute a danger to themselves or to others?
677 Why should children with SEN be treated differently from all other pupils when all schools have clear procedures for dealing with disruptive pupils, ending in the right to exclude permanently in the last resort? I believe that this is a discriminatory clause and will, I hope, be removed or least considerably tightened during the passage of the Bill.
The effect of retaining this third caveat will undermine the expressed intentions of the Bill—to promote the greater inclusion of all pupils in mainstream schools. It will continue to give licence to those LEAs which are only too ready to exclude children who are difficult to accommodate. As the latest statistics published in November by the Department for Education and Employment show, the most segregated LEAs are increasing the number of pupils in segregated provision and are doing so at a faster rate than inclusive LEAs, which are steadily reducing the numbers of children in segregated schools. Of the 30 worst segregators, 24 had increased the percentage of pupils in segregated provision compared to a year previously. It cannot be justified that a pupil in Lambeth has eight times more chance of going to a special school than one in Newnham. I hope that the Government will reconsider this clause.
Moving on to Part II of the Bill, this gives welcome effect to many of the recommendations of the Disability Rights Task Force made in its report of November 1999. One concern is that there are no targets or requirements in the Bill to monitor progress towards the increased mainstreaming of disabled children. Furthermore, significant resources are being made available to meet special educational needs and to increase access for disabled children. Much of the money is delegated directly to schools, and with it much of the responsibility. However, the Bill does not make it clear how schools and LEAs will be held accountable for those resources. Greater clarity will be sought during the passage of the Bill about the monitoring and accountability mechanisms.
Cases of disability discrimination in schools will be heard by the SEN tribunals, to be renamed the special educational needs and disability tribunals. I join with the noble Lord, Lord Ashley of Stoke, in his concern that whereas financial compensation is available for young people who win a case on race or sex discrimination, there will be no financial compensation for pupils under the age of 16, even if they do win a case. This appears discriminatory in itself and removes a major incentive for change. It will also fail to address the "hurt" caused to a young person, for whom it will often too late to find an "educational remedy".
In conclusion, there is much to welcome in the Bill, which sets out to redress the sorry exemption of education from Part III of the Disability Discrimination Act. Its provisions will make a significant improvement in the educational opportunities available for disabled children and those with special educational needs. I hope that, during, the passage of the Bill, the Government will find themselves able to send a clear message that segregating on the grounds of disability is against 678 human rights. If segregation continues to be a legal option, schools will continue to find ways of excluding children who, for whatever reason, do not fit particular arrangements. It will exacerbate the tendency that exists in all institutions, including schools, and in human relationships of all kinds, to discriminate and exclude difference rather than to make changes to accommodate it.
§ 5.48 p.m.
§ Baroness Fookes
My Lords, before this debate began, I feared that I might be a lone, heretical voice in querying the universal assumption that the greatest good must come from integrating every child with special needs into mainstream education. I am sorry to disagree with the noble Baroness who has just spoken in her view that the greatest evil is the segregation of children.
I am worried by Clause 1 of the Bill, but for entirely different reasons from those of the noble Baroness. My concern is the lack of any wording to make clear "the best interests of the child"; in other words, that the best interests of the child might be served not by going to a mainstream school but by enjoying the benefits of a specialist education. I shall not dwell on those benefits. They were set out clearly by my noble friend Lord Baker when he referred to the admirable schools which deal with those without sight or the partially sighted. The same would be true of many other schools which cater for specific needs. I hope that, as the Bill goes through the House and on to the statute book, we retain our appreciation of the continuing value of specialist schools for many children.
Surely these children will not necessarily have to go to either one or the other. In the course of a child's school career it may well be possible for the child to be educated, first, in the mainstream or in a specialist unit and then to transfer, a point made by the noble Lord, Lord Rix. It seems more sensible to keep the valuable specialist units that we have and to transfer children between them—to make them centres of excellence, if you like—than simply to sideline them, which I fear is the thrust of the Bill. Even though the Minister indicated that there will still be a role for such centres, I wonder, when it comes down to implementation by local authorities, whether those special schools will still have the same value.
It seems to me that such schools provide an economic way of providing specialist education. It will be extremely difficult for an ordinary school if it suddenly has to cater for several children with different disabilities. Let us suppose a school has a child who needs a wheelchair, a child with autistic needs and a child who is profoundly deaf. I cannot believe that the school would find it easy to cope. The noble Baroness, Lady Brigstocke, indicated how the school with which she is associated deals with the situation. It sounded excellent to me, but quite expensive. Even the noble Baroness felt that some needs could not be provided in that particular school. I wonder whether less well endowed schools, with their own difficulties in dealing with mainstream pupils, will be able to cope.
679 I am also concerned, as are other noble Lords, about the issue of bullying of special needs children who may go into a mainstream school. My noble friend Lord Baker mentioned the cruel comments made against children with impaired sight who need to wear special glasses. That could be replicated in many other ways.
I have never taught special needs children but I did teach in a small independent school many years ago. A little girl who came to us had no spleen, which meant that she was very small, very delicate and unlikely to make it to adulthood. She did not. But what struck me as so appalling at the time was that the child had been mercilessly bullied in her previous school. She was rescued by coming to the school at which I taught and, for a few years of her existence on this earth, we were able to give this very bright child a good education and the support she needed. The funeral of a child is very disturbing and upsetting when you have taught that child and have known of the various unhappy experiences she encountered in her short life.
I urge those who want the Bill to be very conscious of the problems of bullying which can occur when a child is different. Even placing such children in a special unit within a general school does not necessarily mean that bullying will not occur.
I turn now to the question of the hard-pressed teachers in mainstream schools. We are all aware of the problems they already face—they have been rehearsed endlessly in various debates and in other forums—but if we are to ask them to undertake these additional tasks, I wonder whether they will be able to cope adequately. I am not sure whether the Government have it in mind to allocate funds for extra training of teachers, either before they go into the schoolroom or as in-service training—I do not recall it being mentioned by the Minister in her opening remarks—but it is a major point which should be considered.
Turning to institutions which are not run by local authorities, as I understand it, independent schools which cater for post-16 young people will have a duty and an obligation placed upon them to ensure that disabled pupils are not substantially disadvantaged. That must have financial implications for such institutions as well as for those in the local authority sector. I trust I am right in assuming that they will not be in receipt of public funds. I am not sure where they will get those funds or whether the obligations will be so onerous that they cannot continue. I shall be interested to know what is the position.
Like other noble Lords, I am extremely disturbed by the resource implications of the Bill. If it is to amount to more than pious platitudes with which we can all agree, it is extremely important that sufficient money is made available. Perhaps I have become cynical after many years in politics, but I am not sure that that amount of money will be made available in the foreseeable future.
I conclude with a cautionary tale. Many noble Lords will remember years ago the enthusiasm for bringing to an end the long-stay mental hospitals. Of course it 680 is true that many of the patients had become institutionalised, that some should never have been there in the first place and that others no longer needed to be there—but there was a hard core of patients who needed specialised care and attention. Care in the community sounded wonderful. Who could possibly disagree with such a humane, kind and caring concept, especially having regard to some of the grim wards of the old large mental hospitals? But what happened? Were sufficient funds made available to deal with the situation? No, they were not. We now find that many people with mental problems are insufficiently cared for and quite a number of them walk the streets and have become part of the homeless problem. We should be very careful before we embark on something which seems so splendid, so reasonable and so humane; we should ensure that we do not get caught again with inadequate resources to back up what otherwise seems a good idea.
§ 5.57 p.m.
§ Baroness David
My Lords, I had decided that I would not speak in debates again, but when this Bill on special education was brought forward I felt that such a step had been made that I really should welcome it and congratulate the Government on it. I have always had a very strong interest in the subject and I have been involved with many earlier Bills. I thank the Minister for her clear exposition of the Bill.
There will need to be a significant change in the thinking of everyone working in education to ensure that the new civil rights being given to disabled people are achieved. Professional development and increased training will be necessary for everyone working in the field.
The Government have done well in bringing together in one Bill two of the definitions in legislation for children in need—the disabled person in the Disability Discrimination Act 1995 and the child with special educational needs, now in the Education Act 1996. The noble Lord, Lord Clement-Jones, referred to this. There is a third definition in the Children Act 1989. One day, we hope, all children in need will be covered by the same legislation.
Having said that, the time is not right to join up the definitions. The then government developed the definition of disability without thinking of the implications for education. That definition is now in use throughout public and private life for all bodies that wish to provide services to the public. Similarly with the definition of special educational needs, which was confirmed by Parliament in 1993, just two years before the Disability Discrimination Act went through.
I think that the then government in 1995 felt that they had done their bit for children, and that was it; perhaps they did not want to think through the financial implications. I recall that in the summer of 1995 the House got the Government to concede that the Disability Discrimination Act could not leave education entirely aside. The Government were persuaded to think again and to come forward with a 681 minor amendment which required school governing bodies to say what they were doing for disabled pupils. I congratulate the Government on having the courage to come forward with this Bill that says what they intend to do for disabled pupils. I hope in the course of debate we can develop the Government's thinking and, in all humility, provide leadership to the education profession about how we can best help young people in need with these two definitions.
Part I of the Bill deals with special educational needs and amends the 1996 Act. I applaud all that the Government are doing to promote the inclusion of disabled children in mainstream institutions and to limit compulsory segregation in special schools. But I have two questions. First, it is very welcome to see that Clause 1 of the Bill amends the law to remove some of the current justifications for segregating children with special educational needs outside the mainstream system. But it seems unfortunate that parents should be given what appears to be an absolute veto on mainstream school placements for children with statements. This seems incompatible with other aspects of government policy and with the Convention on the Rights of the Child, which require children's arid young people's views to be ascertained and given due consideration. I was glad to hear the noble Baroness, Lady Sharp, raise this question; it was mentioned also by the noble Lord, Lord Rix, and the right reverend Prelate.
I should be grateful to hear the Minister's justification for allowing a parental veto where a local authority believes that a mainstream placement is in the interests of a child and the child wants one. Also in Clause 1, subsections (5) and (6) of new Section 316 require LEAs which believe that a mainstream placement is impossible because it is incompatible with the provision of efficient education for other children to show that there are no reasonable steps it could take to prevent incompatibility. Surely, given that all children have a basic human right to inclusion in mainstream institutions, parents who insist on a special school placement against the views of a local education authority should also have to show why mainstream placement is not possible.
There will be a need for substantial new funding to allow the new plans to go forward, and the Minister has said that there will be these funds. But will there be enough—as a number of noble Lords have asked? I hope that the Minister will say something about that in replying to the debate. I know that the Local Government Association hopes that the Government will fund the new duties through the revenue support grant rather than the Standards Fund. Will the Minister give a reassurance about that?
Will the additional powers the Secretary of State is seeking to require authorities to take account of guidance be necessary? The LGA hopes that there will be a commitment that all guidance is contained in the code of practice. The press notice that arrived on my desk this morning encouraged me, as it has many other speakers. The Secretary of State said that, after full consultation, he would strengthen the code of practice for special needs. I was particularly pleased that there 682 was a focus on taking account of the views of children with special educational needs and that another focus was on reducing unnecessary paperwork for teachers.
I turn to disability. Here the Government make considerable welcome changes to the Disability Discrimination Act. At the moment, it covers a range of services but not education. That is not to be so in the future. I was rather surprised by what the noble Baroness, Lady Brigstocke, had to say about disabled children in mainstream schools. It seemed to me that she was rather prejudiced. I am afraid that she is no longer in her place, so she will not hear what I say.
Schools will have to make reasonable adjustments to their policies, practices and procedures and the Bill would require schools and LEAs to plan strategically to increase access to education. This includes not only buildings but also the curriculum. Disabled pupils are not to be substantially disadvantaged compared to other pupils. More than £200 million will be provided for this over the next three years.
Like the noble Baroness, Lady Sharp, I should like clarification from the Minister. Will she say what "reasonable adjustments" might be, particularly in relation to the curriculum? I am a bit mystified. I hope that the Minister will not merely say that I should read Clause 12.
I come to Chapter II, on further and higher education. This is a part of the Bill that I am enormously pleased to welcome. For far too long, children with special educational needs, particularly those in special schools. really had no provision for them to continue their education after the age of 19. That was something that a number of us struggled hard to change over the years, but without much success. Now, the change has come. Disabled students—and that includes adults, those in continuing education and in the youth service—must not be discriminated against on admissions, exclusions and on the services provided. They must not be placed at a substantial disadvantage compared to non-disabled students. If they have complaints, they will have a right of redress through the county court system in England and Wales and the sheriff court system in Scotland.
I have not touched on the special educational needs and disability tribunals. All I will say is that the tribunal should offer a relative swift and informal resolution of those claims. The range of remedies seems appropriate. What is important is that the consequences of discrimination are redressed.
We have an excellent Bill. No doubt adjustments and improvements can be made in Committee and questions can be asked. A Committee stage in Grand Committee seems to me appropriate for this Bill, although I understand the fears expressed by the noble Baroness, Lady Blatch, that there might be other things going on in the Chamber which one would not want to miss. Huge strides forward have been made, as most noble Lords seem to think. I congratulate the Government on the Bill.
§ 6.7 p.m.
§ Lord Swinfen
My Lords, I must begin with an apology to the House and in particular to the Minister. Owing to a long-term commitment, I shall not be able to stay to the end of the debate. If the points that I raise are not answered by the Minister in replying to other speakers, I hope that she may find a little time over the Christmas Recess—possibly after she has opened her stocking—to drop me a line.
I welcome the Bill. The education of children with disabilities with their able-bodied peers will in the long run make those who are able-bodied far more tolerant of people with disabilities once they leave school and go out into the wider world. Most of us had to wait until we were well on into our adult years to appreciate the difficulties faced by many people with disabilities. I think that helping people with disabilities and understanding their problems is of benefit to society as a whole.
However, despite that, there will be occasions when children with disabilities need to be educated in schools specifically set aside for those with special educational needs. This not a one-shop Bill. We must bear in mind that there are those who need at times to go to special schools so that they are taught the particular skills that they need to go through life and to make life safe for them in the wider world. But, on the whole, I welcome the Bill. It may need a little improvement as it passes through the House, but I am sure that this Chamber, in its best traditions, will ensure that that takes place.
According to Clause 11, there can be no discrimination if the responsible authority,did not know and could not reasonably have been expected to know",that a child is disabled. That puts the onus on the child's parents to disclose the disability to the school. It changes the emphasis from being a responsibility of the local education authority to plan for inclusion to that of responding when a disability is known. It may affect anticipatory action such as staff training or the amendment of policies, practices or procedures.
It will be important for parents to have the opportunity to present that information to the school. But, as I read the Bill, there seems to be no duty on the school to ask for the information. However, if one member of staff is aware of the likelihood of a disability, is that sufficient for the school to be held responsible? How much knowledge of disability should teachers of children have? Further, will such issues be addressed through the code of practice?
I have considerably shortened what I intended to say because many speakers have already raised those subjects. As the hours draw on, I am sure that noble Lords would not wish me to repeat those points. However, there is one matter that I must raise. The noble Baroness, Lady Sharp, from the Front Bench of the Liberal Democrats mentioned this issue in her speech. I refer to compliance with the Human Rights Act, or with the European Convention on Human Rights.
684 There is no provision in this Bill for the rights of children. In particular, a child has no standing before the tribunal. It is not uncommon for a teenage disabled child to disagree with his parents about appropriate education. That is particularly the case where the choice is between oral or bilingual education for a deaf child. Even though the Human Rights Act mentions a parent's right to educate a child in accordance with his or her convictions, the right to an education under the Human Rights Act belongs to the child.
New Section 28C(7) is designed to safeguard confidentiality. It gives the parent the right to request confidentiality. This, too, may be the subject of dispute between the parent and the child, especially as the child grows older. Therefore, is the Minister confident that the Bill is compatible with the rights of the child under Protocol 1 Article 2 (the right to an education) of the convention on human rights? I ask that question in particular because I see from the Bill that the noble Baroness has given an undertaking that, in her opinion, the Bill is "compatible" with those rights.
I have one further point to make, which was originally raised by my noble friend Lady Blatch. Although I am talking about screening for deafness, it is also appropriate for screening for other disabilities to be carried out as early as possible. The sooner that such disabilities are detected, the sooner proper provision can be made by the parents, the schools and education authorities for the education of the child.
I believe that a national programme of screening for deafness in new-born babies would complement many of the Bill's objectives. I realise that that falls under the remit of a different department from the one that the Minister represents, but the noble Baroness answers for the Government as a whole. I know that she is aware of that fact because, from these Benches, she raised that point before the last election; and, indeed, I suspect that she may have done so on more than one occasion. However, I do not expect the noble Baroness to answer me verbally on the matter this evening.
The Government's welcome initiative on Universal Neo-natal Hearing Screening (UNHS) has the potential to ensure that the educational achievements of deaf children match those of hearing children. Each year I understand that some 840 children are born deaf in the United Kingdom and that, up until now, the only way of identifying this group of children was through a haphazard system known as the "Health Visitor Distraction Test" (HVDT). However, only 400 babies are detected by this test before they reach the age of 18 months, and around 200 remain undetected until they reach the age of three and a half. That is quite unacceptable.
With the HVDT, the hearing of babies is not tested until they are seven or eight months old. Professionals accept that the test can be inaccurate and that it does not detect deafness or hearing loss in all deaf babies tested. Undetected deafness in new-born children has a significant negative impact on the development of speech and language. There is evidence that children whose hearing losses were identified before six months of age are reported to have expressive and receptive 685 language development quotients significantly higher than children whose hearing losses were identified after six months. Therefore, earlier identification of deafness through UNHS delivers: earlier development of communication, language and speech; earlier fitting of hearing aids; earlier identification of candidates for cochlear implantation; and earlier introduction of sign language. All of those factors will have a beneficial effect on the education of such children.
I hope, therefore, that the Minister will ensure that her department chases the Department of Health to make certain that it makes her task much easier with regard to the education of children with disabilities. I know that that is not strictly part of this Bill, but I make no apologies for raising the subject because I believe it to be extremely important for the education of those children with disabilities.
§ 6.16 p.m.
§ Baroness Massey of Darwen
My Lords, I should like to speak to the first part of the Bill on special educational needs in schools. The Bill is welcome, building as it does on previous Bills, reports, research and good practice, as well as raising the profile of special educational needs and disability. I am aware that, over many years, special educational needs have been transformed, thanks—at least in part—to the efforts of several people in this Chamber. We can now further improve opportunities for children. I have in mind those 20 per cent of children who will have special needs at some time in their career and the 3 per cent who need special provision.
Special educational needs is a multifaceted issue and one that touches many aspects of legislation and delivery in schools. As the noble Baroness, Lady Blatch, pointed out, it is a growing issue and needs a whole school approach, linking with parents. Of course, as many noble Lords have said, funding is a key issue. Learning difficulties can be caused by what one head teacher described as a "viewing culture" rather than a reading culture. Boys appear to be more affected than girls. That can have serious implications for behaviour and achievement and needs tackling early with its many ramifications.
The Bill deals with several loopholes in existing provision; for example, that relating to the education of children without statements. But I believe that more detail is needed on certain aspects that I know are of concern to parents and schools. Like my noble friend Lord Ashley of Stoke, I wish to be constructive. I should like to look at some of those concerns in relation to school governors, to parents and to schools, and then to give some practical examples from my own experience and that of others.
I turn first to governors. They have a duty to oversee special educational needs in schools, yet this is a highly specialised area that relates not just to learning needs but also to the much more complex issue of emotional and behavioural difficulties that can impinge drastically on teachers and pupils. I wonder how much training is provided by LEAs for governors in dealing with special educational needs. I wonder how many 686 schools have a governor with designated responsibilities in this area. That is particularly important as chairs of governors and head teachers have to be consulted if a statemented child is assigned to their school, and an appeal may have to be arranged.
Secondly, there are the parents. In Clauses 3 to 8, the Bill addresses in a most positive way the processes by which parents receive advice and information, and by which disputes might be resolved with the help of an independent person. All this is most welcome, and I do not intend to cover other aspects of the Bill that have been discussed by other speakers.
I wonder whether there still remain potential problems, examples of which have arisen in the school where I am a governor and which have caused distress and confusion. This is where the parent does not accept that the child has a special educational need. In the case of physical disability this is not usually a problem, but it can be difficult for parents to accept that their child has a learning difficulty or an emotional or behavioural difficulty. If the parent is from a cultural or linguistic minority, this problem may be intensified. In the school where I am a governor we have recently had two such cases. When, I wonder, does it become an issue for child protection. What best benefits the child? Like other noble Lords. I am concerned about the rights of the child as well as the rights of parents.
Thirdly, I turn to schools. Of course, improving programmes for all children should improve the lot of children with special educational needs. I do not mean simply in terms of numeracy and literacy but in relation to behaviour such as bullying through programmes of personal, social and health education and citizenship. This is happening. Information technology has also helped enormously with some learning difficulties. Many schools can identify need and provide for it. But I find the funding mechanisms complex, especially if there are in a school a number of children with SEN. For example, it seems that an LEA is under no obligation to provide cover for a learning support teacher if he or she is on sick leave.
According to many head teachers, at least the ones I talk to, children with special educational needs tend to achieve more if they are integrated, but designing a curriculum for all is a tall order. Many schools do it superbly with support from their local education authority. There is plenty of good practice around. The whole thing, of course, requires good management and creative thinking, as the noble Lord, Lord Rix, described. I understand that LEAs can make their own rules about SEN funding, even when actual needs within LEAs are the same. Some LEAs become overspent as they include, for example, transport for SEN within their budgets. The whole area of financial management and funding for SEN requires attention, so do any delays in implementing decisions by the Special Educational Needs Tribunal.
A few other questions remain for me. In my own school, for example, in Wandsworth, an educational psychologist can do Stage 3 work with children from 687 neighbouring Lambeth, but not Stage 4 work because Lambeth will not accept it. Neighbouring Merton on the other side of the borough will. I am not sure but I suspect that this is happening on the fringes of many boroughs. It is especially complex when there is a change of staff or even premises in adjacent boroughs. Roles and responsibilities of educational psychologists and therapists need examining and clarifying for they are key players.
I am also concerned about gifted and talented children. That was touched upon by the noble Baroness, Lady Blackstone. I know that they do not officially come under special educational needs provision, but many of these children end up in all kinds of trouble, perhaps especially on transfer to secondary school, because they are not adequately dealt with. I understand that money is being provided under the Excellence in Cities Programme for local co-ordinators and policies for gifted and talented children. Does this link with special educational needs in schools? In my primary school the SEN co-ordinator has gifted children under her remit and under her performance management targets, but money to support gifted children does not come under the SEN budget. Is this a widespread issue?
Other noble Lords are concerned about, and will speak on, league tables and children with special educational needs. In my school the attitude to such children is not one of low expectations but of different expectations. Most children with special educational needs in my school will not achieve Level 4. We need to look at the achievement of these children in a different way. Yet the whole cohort of children is included in league tables without any value added system.
As I said earlier, this Bill is welcome and supportive to parents and children. It needs, of course, to be integrated into other educational initiatives. There are issues which need clarifying, but I am sure that we can do this at later stages.
§ 6.25 p.m.
§ The Earl of Mar and Kellie
My Lords, I am generally content with the principle of the Bill. It extends to Scotland in part and it is on that issue which I must dwell. I am content that the Bill relies on the Scottish Parliament to make suitable legislative arrangements. I never have a problem with legislative splits stemming from home rule. That, therefore, is not the issue which concerns me.
I believe that the Bill must be more specific about how it will be implemented in Scotland and about what else must happen before commencement in Scotland. First, I believe that a Scottish code of practice must be drawn up. The historic differences in the education systems make it impractical to write a composite Anglo-Scottish code of practice, which leads so often to Scotland being referred to in brackets. Such a Scottish code of practice must be clear and must be written specifically for the regime to which it will be relevant so that it can be relied on by everyday citizens.
688 Secondly, there is already confusion about the definitions used in Scottish social work legislation. For example, the Education (Scotland) Act 1980, as amended, mentions special educational needs. The Children (Scotland) Act 1995 refers to "children in need" and to "children affected by disabilities". The Disability Discrimination Act defines disability differently yet again.
There is a need for legally based clarification of the terminology. For example, will social, emotional and behavioural difficulties be covered by the Bill or not? Will the school for "educationally fragile" children of my noble friend Lady Linklater of Butterstone come within the ambit of the Bill or not?
Thirdly, there is no Scottish planning duty. Scotland is excluded from Clause 13. I believe that it would be wrong to implement the Bill in Scotland until the Scottish Parliament has made its own legislative decision about the need for such a duty to plan for access or otherwise.
Fourthly, Scottish schools are exempt from having to make physical alterations under Clause 12. I am content that this duty is imposed on Scottish further and higher education establishments. One of the overarching principles is that there should be choice for children with disability between special facilities and integration. That is relatively easy to achieve in a city or large brugh but it obviously becomes more difficult to achieve in a small brugh and rural area. Of course, in a remote area such as an island, there will probably be no choice whatsoever. So, once again, the Scottish Parliament must enact complementary legislation before commencement.
Fifthly, there are insufficient rights of redress. There are to be no financial remedies for discrimination in school education. The possibility of a financial penalty will act as a useful lever for change and probably be of practical help for pupils. As this could be seen as a form of age discrimination, I wonder whether there are ECHR implications.
Sixthly, rights of redress are to be heard in the sheriff court. I do not have a problem with the sheriff deciding upon such a civil matter, but many families will not countenance action in the sheriff court. What is required presumably is a conciliation process. That is more likely to find a way forward which everyone understands. I believe that the Disability Rights Commission in Scotland could provide such a conciliation service. It would seem to be a more user-friendly process than a prosecution in the sheriff civil court, albeit it that it would probably be heard by the sheriff in chambers. Allied to that, perhaps I may ask whether legal aid and advocacy support will be available when seeking redress for discrimination in the sheriff court. I note that there will be much work to do on the Scottish aspects during the Committee stage.
My final plea is this. Please may we have a clause in Part III which lays out precisely which clauses apply in Scotland? The Bill is clear about its application in Northern Ireland. Can it not also be clear about its application in Scotland? For the Bill to be a success in Scotland, it must start by being immediately understandable.
§ 6.31 p.m.
§ Baroness Andrews
My Lords, I am delighted to have the opportunity to contribute to this Second Reading debate. It is the first Second Reading debate at which I have been fully conscious. During my maiden speech on a Second Reading debate, I achieved a state of nervous trance. I did not realise that a t this stage of the debate much that I would have wished to say would have been said.
However, I join with all other colleagues in greeting the Bill with much pleasure. I also share some of the reservations. I look forward to discussing them in more detail in Committee, including the troublesome words "efficiency" and "reasonableness". I am sure that that will give us hours of pleasure.
There are many aspects of the Bill to welcome. It has been a long time in gestation and reaches the House with high expectations and some concerns. There are fewer concerns now that the Government have listened so admirably to the negotiations over the code of practice. I am glad that they stuck to the concept of "specify" rather than "set out".
Many issues have already been raised. I refer, for example, to the relationship between Parts I and II of the Bill and the balancing of rights and resources. Much has to be discussed in detail. However, I hope that it is sufficient to welcome a Bill which for the first time gives disabled children a positive right, not merely a right by default, to an education on the basis of individual need. It makes it easier for all children to have an inclusive education.
Many noble Lords have spoken with great authority, expertise and personal experience. I hope that the Bill will be successful in three critical areas: first, that it will raise the expectation of achievement by every child with special needs and disability; secondly, that the new and positive powers the Bill gives parents will make it easier for parents to ask for, accept, receive and secure the appropriate educational help for their children; and, thirdly, that it will signal a new era, with maintained and special schools being part of a genuinely coherent and inclusive system of education. The Secretary of State said:Inclusion is about building on and developing the wealth of expertise and experience within the specialist sector in the interests of the children".I heartily agree with that. The Government got off to an excellent start in 1997 by making it clear in the White Paper, Excellence in Schools, that the standards for the education of children with special needs are no more and no less than those expected for the education of all children—the very highest. It is only too easy to exempt young people with disabilities from high expectations.
The noble Lord, Lord Ashley, is a campaigner against all forms of bullying. Recently I presented a partially blind young man with a national award for achievement. I assumed that the award was because he had overcome his blindness. He had high standards of academic achievement. In fact he had been bullied and had set up an anti-bullying unit in his school which was hugely successful. The model was copied by other 690 schools. According to his friends who nominated him for the award, he was there for everyone when they needed him. The value of inclusive education is not that children are seen as equal but that they are valued for who they are and what they can do for the whole school. It may be on the school council, in the school play, on the sports field or doing exceptionally well academically. That understanding of human capacity strengthens the basis of our society.
The Bill gives welcome and practical help to parents. There is nothing more frustrating than for parents to watch a child struggling at school, knowing that they cannot help him. They do not know what to do to help the child, especially if he has speech and language difficulties. They do not know what support is available or whether it will arrive. There is nothing more disheartening for a teacher than watching the child grow in frustration and anger, eventually perhaps resorting to destructive and aggressive behaviour.
The Bill strengthens the right of pupils to a place in a mainstream school if their parents want that but it also gives parents access to information, understanding and support when it counts the most. I welcome what has been said about the need to have the voice of the child in these discussions. We neglect that at our peril. We need to listen to children in that respect.
There is no doubt that the experience of many parents over the past 20 years has been of delays and disappointments, followed by a final confrontation with the school or an SEN tribunal. Where the child is rejected by a school or a tribunal, parents are often not in a good position to argue the case. Above all, I hope that the Bill will change the climate of negotiation and reduce the isolation of parents.
I welcome the new duty on all local authorities to provide a parent partnership service, the access to independent parental supporters and the informal arrangement to avoid or resolve disputes. Resources are an undeniable issue which we have to face realistically. As with all other aspects of education, the aim must be to have the very best standards. Recent research suggests that many schools with high levels of statemented pupils are less successful in terms of attainment. That is hardly surprising. However, the same research suggests that schools in the top 30 per cent of attainment are in many cases also in the top 30 per cent of those with children with special needs. Why are those schools successful? The difference cannot be explained wholly by resources but has much to do with professional attitudes, parental involvement, leadership, good teaching and learning and good use of resources.
Comments have been made about insufficiency. Providing £220 million for access is a good start and an indication that the Government are serious about the practicalities. There is a great deal of ground to cover. The noble Lord, Lord Baker, referred to that shocking report. Not only is the supply of basic materials necessary but also new technologies. I have seen children with disabilities using them and profiting 691 enormously. New technologies can make a difference not only in competence but also in imagination and learning.
I am also certain that the Government are right to be ambitious for all children with special needs and disabilities. Inclusion is not a sentimental or simple concept. It has to be properly planned for and funded. Over the past 20 years many children who would have been separated in special schools have taken their place very successfully in mainstream education. The Bill gives a greater chance to more children who will also flourish. But there are many new challenges. For example, 20 years ago we did not have so many competitive pressures on schools. We now have greater delegation to schools and changes in the curriculum. We have many differences now. We also have to secure the right future for special schools to give them the confidence of knowing that their place is to provide an appropriate and inclusive education for all.
The safeguards in the Bill offer the prospect of the right balance between meeting the needs of the individual child with special needs and meeting the needs of all children in the classroom, so that each child will have an equal chance of success. I very much look forward to the next stage of the Bill, when we can pursue some of those issues in more detail.
§ 6.40 p.m.
§ Lord Dixon-Smith
My Lords, I had a nephew who was born a haemophiliac. By the time that that was diagnosed, he was also brain damaged. About 25 years ago, when my brother discussed the issue with the education authority, he was met with consideration and, ultimately, generosity. Subsequently, like the noble Lord, Lord Clement-Jones, I was a governor of an autistic school. As an independent foundation, its problem was security of funding for the pupils that it took care of. Again, my education authority was very generous and considerate in its handling of the pupils and the school once the problem was identified.
I make that point for two reasons. First, I want to show the noble Lord, Lord Rix, that even 25 years ago the environment had moved forward dramatically from the harsh introduction that he received a relatively short time before that. Secondly, the situation has been developing over a long time. The past is not all ill and the future is not all good.
We are dealing with a very difficult area, particularly for parents, who find themselves in a situation that they would not wish to be in and that they often do not understand and that has implications for their lives as individuals and as families that often confuse and upset their motives. We heard about the consequences of that from the noble Lord, Lord Baker of Dorking, and his comments about his postbag.
Essex, which was my LEA, currently has about 5,000 statemented children in its education system. That is a large number. Of those, roughly 2,300 are in special schools. The number of special schools has diminished over the past 10 or 15 years. There used to 692 be 30 but now they are down to 23. The cost of those special schools is about £18.5 million per annum—roughly £8,000 per pupil per year. They are staffed with dedicated teachers who are well resourced with facilities and do an excellent job. The other 2,700 pupils are supported in mainstream schools. That costs £12.5 million annually—roughly £4,600 per pupil per year. That illustrates the point that supporting handicapped children or those with educational problems in mainstream schools is an expensive exercise and we have to face the implications.
However, that is not the end of it. That deals with the 5,000 statemented children, but the education authority also makes available £8.5 million through delegated school budgets to the schools themselves to support children who are not statemented but who none the less need support. We need to recognise that the boundaries are grey. Some children who are not statemented still need support. For schools to work efficiently and make proper use of their resources, additional money has to be provided. Another £8 million is made available to support children with difficulties who go across education authority boundaries or go to independent schools. A total of £47.5 million is currently made available in Essex.
I asked the LEA for an estimate of the cost of fulfilling the expectations in the Bill. It estimates that the Bill will increase its costs by between 6 and 8 per cent. That is plus or minus £3 million per annum for one education authority. The financial statements made about the Bill cover the problems of capital resources perfectly reasonably, but I have considerable doubts on the revenue support that is required. I hear a, "Hear, hear", from somewhere in the Chamber. Several noble Lords have already made that point.
I am not so starry eyed as to ask the Minister for an assurance that the resources that are required to meet that liability will be made available, if only because I know that it would be beyond her competence to give such an assurance. There are others behind her who will ultimately take control of events.
I shall introduce the House to a simple economic formula that applies to local government funding, of which this is a part. Local councillors and anybody who has been involved with local authorities will be familiar with the formula: the sum of the sums is greater than the sum. The sum of the sums is the sum of the individual demands that are made on local authorities, usually through legislative requirements such as the Bill. We can sit down and calculate what the Bill might cost locally and nationally. When considered in isolation, it looks achievable. However, adding up all the requirements service by service across the breadth of local authority services always produces a figure that is greater than the sum that is provided. That is the dilemma for local authorities.
I am not making special pleading; I am just trying to introduce reality. Local authorities will always have conflicting demands for resources. Not least of the dangers that we face in this debate is an unwillingness to recognise that, when we get down to the level at 693 which the service is provided, local authorities across the land—not Whitehall departments—have a very difficult job. On top of all the human problems of individuals with their own ambitions and purposes, their own jobs to do and their own conflicting emotions, authorities have the problem of not always having all the resources that are considered necessary to do the job properly.
That is the background that we shall always face. I am conscious that out there, across the country, are bands of all types of dedicated professionals to whom we all owe a great debt and, indeed, to whom we owe our thanks. I welcome the Bill. It is a stepping stone in the right direction. We should recognise it as that: a very welcome stepping stone.
§ 6.50 p.m.
§ Baroness Ashton of Upholland
My Lords, I strongly support the principle behind the Bill of integrated education on the basis that, if it is done properly, the lives of all our children are enriched. There is no reason for education standards to fall; rather, the education experience of all children should improve. Children learn to work alongside each other, to be tolerant and to recognise that they are good at different things. Through their curiosity, children learn about different lifestyles and life experiences. All that makes them better adults—one of the fundamentals of education—and better able to cope with the world in which they live.
I say that as chairman of a state junior school and also as the step-parent of a young man who had a statement of special educational need. As he finishes his college course without the need for extra support, I pay great tribute to the education authorities of Cambridgeshire and Hertfordshire for the support that they gave him in the 1980s and 1990s. Being educated in the mainstream was of great benefit to him, and it was his choice. It made him ordinary and challenged him to cope with his disabilities in real situations. To his credit, he succeeded. His friends and colleagues gained, too, from this interesting and talented young man.
As a step-parent, I remember being very nervous as we approached a new school, wondering whether it would want to take him. I know that that is how many parents in the same position feel now. Children with special educational needs are not always seen as a great catch by schools which are tied up with getting to the top of the league tables and keeping class sizes large enough to afford new equipment.
When this Bill is passed, I shall be looking for three things in particular. To illustrate them, I want to describe two experiences that I had recently as a governor. The first concerns a young child who had multiple disabilities but who had coped well at nursery school and, now rising five, was ready to go to "big school". Our governors were asked whether, in the light of her disabilities, we would be willing to take her. The unanimous, positive reaction of the staff was echoed by the governing body. Only then did we learn 694 that we were the 19th school to be asked and that this child would have a long journey each day. I can only imagine how her parents felt.
The child was a delight. Bright as a button, she succeeded in everything. We were pleased that, during the term before her SATS, the school nearest to her home found her a place. However, because she did not take her SATS with us, the hard work which teachers at my school had put in was not reflected.
My second experience concerns a child who had many problems which were hard to identify and who had already faced difficulties at a previous school. When my school was approached, we considered very carefully having him there. However, there was little information to go on, and in the class into which the child would have been going were a number—over 40 per cent—of children with some kind of special educational need. Disruptive behaviour would have been a negative for those children in particular. Finally, we had to take him because we had a place, despite the strong views of everyone involved that it would be detrimental, especially to him. Not surprisingly, it did not work and we are all the poorer.
Various points arise from those experiences. First, if we are serious about integration, we need to start with children long before they go to school. Other noble Lords have made that point. The director of education in Hertfordshire said to me one day in my capacity as chairman of a health authority that health visitors were always telling him that they could identify children with needs at an early stage, especially those with conditions such as dyslexia, dispraxia, autism or Asperger's, or those with behavioural problems. They would say that they knew those children quite well, certainly by the time they had reached the age of two—yet they were not involved as health professionals in identifying the children and working with their local schools. That is harder to do without catchment areas but, nevertheless, not impossible.
When a child arrives at school with his little rucksack containing pencil, ruler and lunch box, I want to see the beginnings of the special needs package in the rucksack as well: resources, assessments and understanding.
Secondly, if we are serious about integration, we need to tackle what I call the "one-dimensional" nature of league tables. I have nothing against measurement and the raising of standards—far from it. However, I expect to see sophisticated measurement which measures like with like or which recognises what I have come to call "value added". The reality is that some schools which are striving to stay up in the league tables and which enjoy over-subscription have little incentive to take children who might—I emphasise "might"—not achieve the highest standard or who will require additional resources.
Being involved in a school which works with children of all abilities, I am still astonished when parents come to see us, pointing out that other local schools have suggested that their child might do better with us because he has a special educational need and they do not normally take children who have that need.
695 My point is that integration needs careful management to ensure that all children can learn. Put bluntly, it is often better, particularly for those with behavioural difficulties, to spread children across the education sector. That means giving local education authorities the power to ensure that all, and not only some, schools participate in supporting children with special needs. Of course, it also means that Ofsted needs to recognise that participation and to sing the praises of schools which do it successfully. League tables must reflect that.
Finally, the desire for integration for children requires a recognition that it does not always work. That means finding new solutions as to how children move on into other forms of educational experience, other than the route of exclusion—such a negative experience for everyone, especially the child. Yet, exclusion is still often the only way to obtain the support which children need. Teachers are not necessarily trained to deal with a multiplicity of special needs. Some children are extremely challenging.
The dearth of classroom assistants trained to work with such children represents an additional problem. High employment and poor levels of pay make it extremely difficult to recruit people who are willing to work on a one-to-one basis with those children. Where schools are willing to try to work with a child, education authorities should be prepared to accept that occasionally they will fail. They should not see it as bad teaching, ineffective management or anything else. That, too, would make a difference to the willingness of schools to take on children who have complex needs.
This legislation is about improving the education for all our children and improving the experience of children with special educational needs and their families. It should be warmly welcomed and supported. From my position in health and education, I shall be looking most closely for the incentives and rewards that will allow us to succeed. I congratulate my noble friend the Minister on bringing this legislation before your Lordships' House.
§ 6.58 p.m.
§ Lord Lucas
My Lords, that was a very hard speech to follow. I believe it is the best speech I have heard all day. Given the quality of the debate, that is a considerable compliment, but one that is well earned. I hope that we shall see the noble Baroness on the Front Bench in due course because that kind of talent should not be left to languish so far back on the red Benches.
This is a good Bill. I hope that we can improve it a little in Committee—it will be all the better for that—but it will make a positive impact on the present system. However, it will not get at the root of the problem, which is that local education authorities are charged with promoting the interests of the child, adjudicating what those interests are and being the paymaster at the end of the day. That is an impossible combination to ask of any authority.
696 As a result, over the years all kinds of bad practice have crept into the way that LEAs deal with the problem of special needs. There has been a denial of the need for statements, an avoidance of looking at the problems and providing statements, and, when a problem has been identified, there has been delay in doing anything about it. For parents, getting through the various regulations and tribunals has become an intimidating and endless trial—an exhausting process. When a child most needs immediate help, commonly the delays can last for up to two years at a time when two years is absolutely critical as regards the child doing well.
Surely we all want a system which puts the interests of the child first—a system which allows LEAs to be an active partner in seeking out children who need their help and giving that help. We also want schools which, as the noble Baroness said, seek out children who need their help. By and large, schools that are good at dealing with special educational needs are good at dealing with ordinary kids, too.
All children have individual needs, and all benefit from concentration on and attention to their needs. The very best schools are those which are best fitted to deal with special educational needs. If we can get that into the heads of the schools which throw up their hands at the thought of taking anyone on board with even mild dyslexia, we will have a better educational system for everyone. There is not much we can do about that in the Bill. However, elsewhere, the Government have provided us with a model for which we should aim. The National Institute for Clinical Excellence (NICE) sets out the standard of provision in the health service and bases that on research. If that sort of foundation were available for special educational needs, everybody could judge where a local education authority should be. It would be possible for a body such as Ofsted to monitor what happens.
The difficulty is that we have no research. It astonishes me that a profession whose pinnacle is research at some grand university is so reluctant to admit researchers into its own practices and nostrums. The epitome of that was the former chief inspector of schools who refused ever to allow anyone to assess the effectiveness of the methods of Ofsted. He was therefore extremely reluctant to promote any form of research into educational practice. There were one or two exceptions, but very few. I believe we should look to see whether in the Bill we can produce a duty to research. Indeed, as the noble Lord, Lord Clement-Jones, said, there should be a duty to provide data for research; to collect data so that five years from now, when we are considering this matter again, we shall have a basis upon which we can found a more constructive system.
The noble Baroness lightened many hearts by referring to the end of the proposal to make statements unspecific. However, that is not a great triumph. The practice has become more and more widespread in local authorities under the existing regime. All we are doing is going back to that regime. I hope that we will find a way to sharpen it up so that the sort of 697 statements one commonly sees, which are so vague they can only be interpreted by the LEA, become a thing of the past.
Two references were made to the Human Rights Act, both of which I believe are well founded. It is clear that a child who is nearing the age of 18, and is certainly well aware of what is going on in the world, must be allowed rights before tribunals. The Human Rights Act is specific on that point. The Bill seeks to give those rights only to parents, which I do not think is defensible.
The other aspect, which I find more interesting and which was raised by my noble friend Lady Fookes, is the question of best interests. Other child-centred legislation, such as care legislation, requires authorities to act in the best interests of the child, which is compatible with the Human Rights Act. This legislation does not. If we persist in that, eventually we will he in trouble under the Human Rights Act. It would be better for the legislation and the system as a whole if the child's best interests were central to what authorities do and the decisions they make.
A particular application of that would be the decision concerning mainstream or special schooling. Inclusion is a wonderful thing, but if we dump a vulnerable child into a school in which there is bullying, we will do that child no favours. The noble Baroness, Lady Wilkins, complained about Lambeth. That merely observes the effect of many parents being given the chance to send their children to schools which are not part of the Lambeth mainstream. Under those circumstances, I suspect that many parents would leap at the chance of a special school, many of which are wonderful places.
Many special schools are great centres of excellence. One sees damaged kids in their first year coming in from mainstream schools. They have been bullied, told they are stupid and think little of themselves. They themselves begin to bully and have all sorts of undesirable traits because of what they have been through. At the top end there are inspiring wonderful kids who look one in the eye and are as bright as buttons. That is an example of a special school really doing its job. At the other end, we see special schools which make our hearts sink, and kids we wish could be allowed out to be part of the real world. We need a mixed economy; we need both types of school. The judgment of which type of school a child attends should be made in the best interests of the child. That is a concept which this legislation needs.
Perhaps I may refer to one or two minor points. Progress needs to be made in improving the profession of educational psychology, which is a black art. There are many unsatisfactory practitioners. Many have been bought by their LEAs. They produce reports which are unspecific, extremely unhelpful to parents and allow the LEAs to do almost what they want. I believe they should be strongly regulated and strongly independent. Perhaps we can make a first move in that direction in the Bill.
I should like to see the LEA's duty to advise extended to parents who think that their children might have a special educational need. At present, it 698 kicks in only when an educational need has been established. I should like to see clarity in the definitions of "special educational needs" and "disability". Perhaps it would be a good idea if, for the purposes of education, anyone with a statement was defined as "disabled". That at least would be a simple change to make and would introduce a good deal of clarity, at least on one side of the equation.
I hope that what I read as the scope of new Section 28C(1)(b) means that teaching methods will have to be adjusted to deal with children who have a disability. That will be great progress. Many schools still teach in ways which are profoundly unhelpful to anyone with a mild, let alone a serious, learning impairment. If they are compelled by the Bill to pay attention to modern teaching methods, that will be a good thing, and an unexpected bonus from the Bill.
§ 7.7 p.m.
§ Lord Addington
My Lords, in a debate of this kind, it is always difficult when one is faced with a great degree of unanimity. Most people would agree that this is a good Bill, which is built on a solid foundation. It works on good practice and includes provisions which everybody has thought for a while should be included. The Minister is to be congratulated on the Bill finally reaching this House, as is her department. It is only a pity that we have had to wait so long. However, that could be said of virtually any Bill which goes back over the long history of this subject. They are always slightly reactive and slightly conservative.
The first major argument which occurs in relation to the Bill is that concerning special schools. Well over 12 months ago, when the Bill was first mentioned to me, I predicted that there would be disagreements on this subject. The major problem we face is that people are frightened. I refer to the comments of the noble Lord, Lord Lucas. I believe that he embarrassed the noble Baroness, Lady Ashton of Upholland, by saying that she would soon be on the Front Bench. I am afraid that he displayed exactly why he was on the Front Bench.
Many people who go to special schools regard them as a rescue service. I refer to the world of dyslexia, with which I am familiar. Often, such schools were there primarily to take people who had failed badly within their schools and often had severe emotional scars. Unless someone is placed in a protective environment in those circumstances they cannot even begin to succeed. That is one of the reasons for the fear which surrounds this subject. Special schools to which pupils have access and which provide no threat must be kept within the system. This is a good Bill but, with the best will in the world, it is not a magic wand. We must have that emergency net.
Having said that, ultimately I should like to see the removal of the need for those schools and for them simply to be there to provide a back-up service. But let us work towards that goal with what we have. We cannot do it overnight. If we are to make any real progress, we must consider the areas involved. So when the Bill says we must respect the wishes of the parents, that is a good thing.
699 The reference to the provision of efficient education for other children produces fear in the opposite direction. What is "efficient education"? We heard about the pressure placed on schools as a result of league tables, and Clause 12(4)(a) relates to standards being maintained. That worries people that possibly children will be forced out of mainstream education. To use my own experience of being dyslexic, and on the ground of it being one of the largest groups—often one of the largest undiscovered groups—when pupils are found to be mildly dyslexic a school may panic because it is not properly prepared and thus excludes them. That is the downside.
The Government have a real problem of calming the fears on all sides and providing a way of ensuring that they are met and properly grounded. That is not tackled in the Bill. As my noble friend Lord Clement-Jones said, it requires sufficient knowledge of teaching, and the training of teachers before they enter schools to enable them to identify the problems. We must also provide back-up services.
That brings us nicely back to the functions of special schools. Surely they can be brought in to advantage. It may mean in-service training. Teachers who are not given the time and opportunity to retrain will carry on doing the job to the best of their ability; but if they are not given the tools they will not be able to do the job—to misquote a rather more famous parliamentarian. If we do not resource the Bill properly to enable the legislation to move forward, we will find that there is nothing behind it.
The easiest part of the new provisions is probably the removal of the exemption under the DDA. That is comparatively straightforward. I understand why it was introduced. I did not agree with it then and welcome this provision now. Discrimination is discrimination. Further, we can go forward here comparatively easily, especially when it comes to exclusion on physical grounds. If we provide resources to get people into schools, then with a little good will most of the problems will disappear. Once again, the in-service training would help. But the human resource aspect is difficult and we must not lose sight of that. If people were capable of taking this subject on board easily without making cultural changes, there would have been no need for the statementing process in the first place. Indeed, where the culture has changed in certain cases the need for statements has been dropped; for example, Swansea has dyslexia-friendly schools, which has reduced the number of statements required. But that cultural shift is difficult. It requires considerable input and considerable political will. We must bear that in mind.
Before I go into a diatribe on the general aspects of education, I should like to say that, ultimately, this Bill should have a fair wind behind it. The Government will be able to enjoy its passage. If any major Bill stands a chance of surviving the Moses Room process without giving us a Report stage from hell, it is probably this Bill. I believe the noble Baroness has taken that on board. I hope we will be able to take part in discussions so that the Government do not 700 automatically produce a negative response to amendments that are tabled. Most of us agree that the Bill should go forward and should be passed.
However, there is one area in which I have a fundamental point of disagreement with the Government. It was first raised by the noble Lord, Lord Ashley of Stoke; that is, that in a case of discrimination there should be some recourse to financial compensation. I agree with him that it is important for the discrimination to be recognised, and that is probably as important as the financial compensation itself. Also, the compensation may provide the opportunity for people to receive specialist help, if it is properly targeted, or for a parent to stop working to give support to a child who is in trouble.
On those grounds I believe we can build an almost watertight argument for compensation. To say that it may take resources away from another area is not acceptable; for example, to say that the money could be better spent on health. The whole idea of compensation would just disappear under that argument. We accept compensation in other areas; why should education be different?
I hope that the Bill goes through your Lordships' House improved and even better than when it starts out. But I must say that it starts out as a much better Bill than most.
§ 7.16 p.m.
§ Baroness Miller of Hendon
My Lords, this has been an interesting Second Reading debate on the Special Educational Needs and Disability Bill. As usual, and as is only to be expected in this House, we heard well-informed contributions from noble Lords with wide experience on this subject and it was a delight to hear them all. I am not as brave as my noble friend Lord Lucas and will not attempt to say who came top. In any event, I do not wish to add to the embarrassment of the noble Baroness. Everybody spoke well in the debate and it is difficult to choose any one individual, nor indeed should we.
My noble friend Lady Blatch cogently explained our attitude to the Bill. She spoke with the great authority of a former Minister of State at the Department for Education who, as she reminded us in her speech today, was the Minister in this House responsible for taking through the Education Act 1993, Part III of which dealt with special educational needs. In general terms, my noble friend told the House that our party supports the objectives of the Bill, which is founded on the 1993 Act and the Education Act 1996, to the extent that they are to improve the education and facilities available to children with special educational needs.
Special educational needs are defined in the 1996 Act as,a significantly greater difficulty in learning than a majority of children of his age … or a disability which prevents or hinders from making use of the educational facilities provided for children of his age".The aims of the Bill are to integrate those children into mainstream schools. There too, in general principle, we agree that that is a most laudable object. But there 701 are some aspects of the detail and methodology which give us some concern and which, as the Bill goes through its various stages, we shall wish to explore in more detail.
We believe it is a lack of basic reading skills that can lead to other severe learning difficulties and thence possibly to behavioural problems. That in turn could be one of the reasons that there has been such a large rise in the number of children classified as having special educational needs over the past few years. My noble friend referred to research done by Dr John Marks, and I shall not tire the House with reading the details. But from that one can see that there has been an enormous increase recently. Of course, there may be another reason, to which I shall turn later.
However, what worries us about the Bill is that, despite the Government's good intentions, we may be running the risk of damaging the very children we want to help by the theory of inclusiveness. Of course children with special educational needs, because of some disability—whether it is physical, in learning or even behavioural—should be integrated with the rest of their contemporaries whenever possible. The right reverend Prelate said—and I shall read his contribution with care—that he agreed with mainstream education, but he added the caveat, "whenever possible".
There is no place in the system for a kind of educational apartheid. I heard the noble Lord, Lord Rix, read the horrific letter he received more than 49 years ago. To hear the experience of people who have been there, one realises the horrendous impact which that might have on parents and children.
On the other hand, one should temper that with the experience of my noble friend Lord Baker. He is not in his place but I want to comment on the experience he described of children with certain types of blindness. They were treated badly in ordinary mainstream schools when it would have been better for them to have attended special schools.
The Bill requires that a child must—and I stress the word "must"—be taught in a mainstream school unless it is incompatible with, first, the wishes of the parent, or, secondly, the provision of efficient education of other children. It would help the House if the Minister would clarify the meaning of the second provision and explain how she thinks it would work in practice. Other noble Lords have asked the same question.
We have another serious concern over this keystone clause in the Bill. There is one overriding, undisputed principle in every area where children are concerned. It is that the welfare of the child is paramount. My noble friend Lady Blatch commented on a speech made by the Secretary of State for Education during the debate on the Queen's Speech in 1999. It is sufficient for me to quote one sentence from the Secretary of State's press release of 17th November 1999. He stated:It will strengthen the right to a place in a mainstream school for those with special needs who want it"—and I want to emphasise the following words—in all cases where it is appropriate".702 That principle does not appear in the Bill and we want to explore that during our debates to see whether it can be more specifically spelt out.
The current position is that a child may be the subject of a statement which defines him or her as having special educational needs and which up until now has had to be specific, detailed and quantified. I said "up until now", but like other noble Lords we were pleased to see the press release and hear the Minister say that her right honourable friend the Secretary of State has altered that provision and that the code of practice will be different from what we first believed it would be.
A child who has been statemented is entitled to have those special needs ministered to by the local education authority or by some means or another, such as a special school or a school with special facilities, or specialist teachers and so on. But we are worried that the present Bill should not dilute the rights of parents and that the Bill will impose a compulsory regime of inclusion. Again, I want to quote my noble friend Lord Baker. It was worthy of note that during his 30 years as a Member in the other place he was often asked by parents whether he could help to get their children into a special school, but in all those years he was never asked by parents to get their children into a mainstream school. While the Bill is about mainstream education—we believe that to be admirable and will do our best to work with the Government and Members in all parts of the House we must ensure that the wishes and choices of the parents are not taken away in the theory of inclusiveness, thereby losing something which benefits the children.
We want to ensure that local authorities do not utilise the new system for identifying the children with special needs as a means of forcing them into mainstream schools in order to reduce expenses. I shall read carefully what was said by my noble friend Lord Dixon-Smith, but as to the formula of the sum of the sum being more than the sums I could not make out whether he was suggesting that mainstream schools might be more expensive than special schools or vice versa! Either way, the budgetary constraint should not be the principal consideration; it should be what is best for the child.
Equally, there are undoubtedly cases in which parents, with every good intention for their children, insist on special schools when the children would benefit from mainstream education. The noble Baroness, Lady David, was concerned that in such circumstances the parents should be able to make a case for why they want that. That is an important issue. If the parents ask for something different, they should be subject to the same regime that the needs of the child are paramount. Should there be some reasonable doubt, the wishes of the parents should ensure that they receive the benefit of it and that their children receive what is best for them.
Then there is the case in which the child's special needs arise from some persistent disruptive conduct. In that case, there is another element to be weighed in 703 the balance: the needs of the other children in the class and the school that their education shall not be disturbed. Educating as many children as possible in mainstream schools and restricting special school provision for the tiny number with the most extreme emotional disorders could, as Melanie Phillips pointed out in a recent article in the Sunday Times, leave teachers floundering with pupils whose very disruptive behaviour spells chaos in the classroom. The Minister suggested that only a few children would be so badly emotionally disturbed, but perhaps she could give some criteria as regards what would constitute such behaviour.
I mentioned earlier that lack of reading skills could be a factor in the numbers of children classified as having special educational needs. But there could be another reason. It could possibly be the readiness of some schools to label some children as having special educational needs in order to excuse poor league table performance. I do not suppose that that is beyond the ken of some schools, although I would think not many.
It is also a paradox that the more SEN children the school can claim it has on its register, naturally the more money it receives—and so it should. However, that is not just a theory on my part. That point was made emphatically at a meeting earlier this month at the Centre for British Teaching, which is an independent education provider, by Professor Mel Ainscow who is normally a strong supporter of mainstream education. That is why I said earlier that, although the proposal sounds good, and probably is very good, certain matters must be considered with care.
In summary, the Bill's stated intention is to place a new, or rather reinforced, duty on schools and local authorities to plan strategically and to increase access for physically disabled children. It is intended to ensure that pupils, whatever their disability, shall receive fair treatment. In my view, that also includes protection against bullying and taunting over their disabilities. The noble Lord, Lord Ashley of Stoke, mentioned that and my noble friends Lord Baker and Lady Fookes mentioned two horrific examples of the way in which it could occur. We therefore need to be aware that such incidents can happen.
While all of these are laudable objectives, and while we know that the wishes of the parents and the impact on other children are most important, it should never be forgotten that this Bill is primarily to benefit children who have special educational needs. That is paramount. What is provided for the children must be in their best interests, a point made most strongly by my noble friend Lady Fookes.
What happens to the child, which school he attends and the whole ethos of the Bill must not be secondary to the budgetary needs of local authorities or government. During the debate, Members on all sides of the House have mentioned budgeting and resources. I am sure the Minister is aware that these provisions cannot be made on the cheap. I appreciate that the Explanatory Notes give an idea of what can be spent, but all noble Lords with experience have said that all 704 such things cost more than one thinks. If we are to enable children with SEN to have better facilities, we must ensure that we have the money to do so.
To conclude, on the whole the Bill is deserving of support in principle and we shall be examining it sympathetically and, we believe, constructively.
§ 7.30 p.m.
§ Baroness Blackstone
My Lords, I very much agree with the noble Baroness, Lady Miller, that we have had a useful and wide-ranging debate. I am also extremely pleased that there is so much support for the broad thrust of the Bill. Certainly, our consultation revealed a consensus on the main provisions and basic principles of the Bill. My noble friend Lord Morris of Manchester asked whether the Government would continue to listen. We shall continue to consider the views of experts in this matter: people who run disability organisations, disabled people themselves and all others who are involved in providing education for children and adults who have special educational needs or are disabled.
Until last year the legislative background for those with a disability had two significant gaps: the Disability Rights Commission Act 1999 filled one of them and this Bill fills the other. Providers of education will be required to take reasonable steps to ensure that pupils, students or adult learners are not at a substantial disadvantage in comparison with others.
I shall try to address the main issues raised in this first-class debate, but it will not be possible to answer all the questions that have been put. Where appropriate I shall write to noble Lords. However, some of the details should be left to Committee stage. Many speakers have referred to resources. We have made a number of announcements about resources to underpin the provisions of the Bill, but it may assist if I summarise the significant investment we are making to support children and adults with special educational needs and disabilities. This investment demonstrates our commitment to improving provision in this area. We are spending far beyond the £18 million indicated in the Explanatory Notes, to which one speaker referred.
Earlier this month we announced that the Standards Fund for SEN would be increased to £82 million next year. That represents a 50 per cent increase on the £55 million available this year. It also means that funding will be more than three times higher than in 1996–97 when it stood at £24 million. We have announced that over the next three years schools will receive £220 million to improve access for disabled children. The spending for school access next year will be £50 million, rising to £70 million the following year and £100 million the year after that. Already the schools access initiative has supported work at some 6,000 schools. That increase will have a direct impact on the physical environment of many schools.
I turn to funding for post-16 providers. We recognise that the new duties under the Bill will increase their costs in that they will increase the likely take-up of places by disabled students£I am sure that 705 all noble Lords welcome that—and generate higher demand for support once people get to know their new rights. We intend to make additional money available for this purpose in the period following passage of the Bill to pave the way for its implementation. That will total £172 million in England. The sum will be made available to the FE sector, to LEA adult and community learning provided through the Learning arid Skills Council and to higher education through HEFCE. All of the resources will be ring-fenced and spent entirely on improving access to post-16 education for disabled people. As my noble friend Lady Warwick said, of that £172 million, over the two-year period, £56 million will be made available to the HE sector and £20 million to the FE sector.
Perhaps I may answer one point raised by my noble friend on RIA. That assessment is not made for higher education. It covers primarily the cost of the Bill to the private and voluntary sectors, and HE is in the public sector.
We should remember that not all changes which will be required by the provisions of the Bill will need a large amount of capital investment. There are many simple ways in which we can help disabled people in our LEA, FE and HE institutions, but we believe that, together with the resources that we shall provide, they will dramatically improve access to education for people with disabilities. I accept that we must continue to monitor the need for further funding. It is not true to say that the Government are unaware of the costs of making these changes. However, as the noble Lord, Lord Lucas, observed—perhaps it was the noble Lord, Lord Dixon-Smith—it is worth investing that money in a much improved situation for those with disabilities or special educational needs. As the noble Lord rightly pointed out, special schools are expensive.
I said at the outset of the debate that inclusion was a somewhat emotive issue, and that point has emerged during the course of the debate. The noble Baroness, Lady Blatch, and some of her noble friends accused us of pursuing an over-aggressive inclusion policy. That is not what we intend to do. Some other noble Lords were concerned that the Government had not gone far enough. I have tried to listen carefully to both sides.
In response to the noble Baroness, Lady Miller, there will not be a compulsory regime of inclusion. We have always said that we must take a pragmatic approach to inclusion so that we safeguard the interests of all children. We are not interested in dogma or ideology. We believe that this is an area in which we can be bipartisan to arrive at the best solution for those with special needs and others. We must see what works and in that way try to raise standards for everyone. We want an inclusive education service that offers excellence and high standards, as well as choice, to parents. I am delighted that both the Special Educational Consortium and the LGA have welcomed our proposals.
I turn to the question of whether this Bill means that many special schools, or all of them, will close. Inclusion is not an agenda to close special schools of 706 whatever type. I make clear that such schools have a continuing and vital role to play. There will always be some changes to local provision to reflect local circumstances. While some special schools have closed, others have been enlarged and new ones opened. The noble Baroness, Lady Blatch, suggested that the sector had declined in size. The net result is that the size of the sector has remained broadly static since 1996 and still caters for about 1.2 per cent of all children, or just under 100,000 pupils. We do not envisage that that will change dramatically. It can be misleading to look at the number of special schools that have closed. I give the example of Wigan's reorganisation which was brought into effect earlier this year. It closed five special schools but opened six new ones. I can provide plenty of other examples.
Some noble Lords have implied that the Bill will make it harder for parents to get a special school place for their child, but that is not the intention of this Bill. We recognise that one size does not lit all. Some children will continue to need the support that is provided by special schools. The existing right of a parent whose child has a statement to make a positive choice and express a preference for a special school place will be fully maintained. It is very important that LEAs listen to what parents want. Where parents want a special school place and an LEA refuses it, they can, as in the past, appeal to the SEN tribunal. I hope that the new informal arrangements to prevent and resolve disputes will ensure that an amicable solution that is acceptable to all sides is reached quickly without unnecessary conflict. Therefore, I agree with the noble Baroness, Lady Sharp, who said that the Bill need not mean a threat to special schools.
The noble Lord, Lord Baker, who is not in his place, is right about the fact that we are educating more children with disabilities. I have no doubt that that will continue. He and other noble Lords who talked about the importance of early identification of disabilities are spot on: the more we can do that, the better it will be.
It may be appropriate at this point to mention that I can assure the House that the Bill will not undermine the very important contribution that the non-maintained and independent sectors play in providing opportunities for children to have their special educational needs met.
Noble Lords spoke about bullying. I agree with my noble friend Lord Ashley of Stoke that we cannot tolerate it. Unfortunately, bullying can take place in all kinds of schools—mainstream or special schools. It can apply to children with or without disabilities. We must stamp it out. My partner is profoundly deaf. He was bullied in his mainstream boarding school. He wrote home asking his mother whether she would provide him with speech therapy and judo lessons. He got his judo lessons. They helped and the answer was: do not mess with me. But I hope that children will not be driven into that kind of situation because we must intervene as soon as it happens.
My noble friends Lord. Ashley of Stoke and Lady Wilkins and other noble Lords did not go so far as to call for an absolute right to a mainstream place, but, in 707 particular, my noble friend Lady Wilkins was anxious to move close to that position. We have to take care to ensure that inclusion is always based on sound foundations. I do not believe that a dogmatic approach will work. Such an approach could alienate both parents and teachers. Even worse, it could end up sacrificing the interests of all children.
For inclusion to work—I say this to the noble Baroness, Lady Miller, who asked about it—there must be confidence that pupils' needs can be appropriately provided for in the mainstream school without a detrimental effect on other children. An absolute right would jeopardise that. We do not want a headlong dash for total inclusion, because that would undo so much that has been achieved. Therefore, to set targets for inclusion would probably not make a great deal of sense.
Noble Lords, and in particular the noble Baroness, Lady Blatch, raised the issue of challenging behaviour. I accept that it is an important question. At the same time I have much sympathy with my noble friend Lord Ashley of Stoke who said it was important that allowing schools to decide whether a child would be too challenging is not something that they should be allowed to abuse. To say that a child with autism should not be included, because his or her behaviour is eccentric, is something that we should avoid. The same must go for, say, a deaf child with bad communication skills. We must look at both sides of the argument and reach sensible and pragmatic conclusions.
The noble Lord, Lord Addington, asked about training. Inclusion has important training implications. We do not underestimate the challenges here. We need to make good arrangements to ensure that teachers and others receive the support they need.
I start with initial teacher training. In order to attain qualified teacher status, all student teachers must demonstrate that they can identify pupils with SEN, know where to go in order to give positive and targeted support and are familiar with the requirements of the code of practice. Those requirements are reinforced by induction arrangements that specifically require new teachers to demonstrate that they can plan to meet the need of pupils with SEN. We also have to provide further in-service training to consolidate, reinforce and extend teachers' knowledge and skills. We are providing substantial extra funding to support INSET under the Standards Fund 2000–2001 for that purpose.
As well as helping teachers we are keen to support the work of learning support assistants, LSAs as they are known. These assistants play a key role in supporting individual pupils and their teachers. We have devised a new induction training programme for teaching assistants which is offered this year and includes a component specifically about SEN.
I am grateful to the right reverend Prelate the Bishop of Bath and Wells and my noble friend Lady Wilkins for their support of what we are doing for parents. Our proposals have received widespread support. The Special Educational Consortium and the Local Government Association have welcomed what we are 708 doing. We know from our consultations that parents want and need more information and guidance on the SEN system. They also want it at an earlier stage.
LEAs will have a duty to ensure that parents know about their services. How they do that will be for each LEA to decide, but it might include, for example, publicising the services in the local press, flyers in libraries, health centres and supermarkets.
Several of my noble friends and the noble Lord, Lord Addington, raised the issue of financial compensation in schools. There have been calls for the SEN tribunal to award that where discrimination takes place. That is not something we intend to do. Disabled children, possibly even more than other children, need the start in life that a high-quality education can give. If, through discrimination, they are prevented from taking part in educational activities, it is vital for their learning and development that the effect of that discrimination be remedied in education terms. That is what really matters. Therefore, we propose that in the Bill the SEN tribunal should have the power to order that an educational remedy be provided. I am pleased that a number of disability organisations accept the importance of finding an educational remedy, although I know they have concerns about cases where remedies may be somewhat more difficult to identify.
We intend that the tribunal should be able to offer an appropriate remedy that offers the pupil educational recompense for the effect of discrimination. I am sure we can discuss the matter further in Committee.
Several noble Lords raised the issue of compatibility with the Human Rights Act. Some speakers suggested that the fact that claims are brought in the SEN tribunal by the parent and not by the child is not compatible with the Act. My legal advice is that this system is compatible with the Act. Article 6 of the European Convention on Human Rights is the relevant article, but it only applies to claims where people's civil rights and obligations are at issue. Civil rights for convention purposes do not include educational rights which fall squarely in the domain of public law. I am advised that all the rights which the tribunal will rule on under the Bill, SEN and disability, are predominantly public law rights so that Article 6 does not apply.
The noble Baroness, Lady Sharp, and my noble friend Lady David asked about the concept of "reasonable adjustments". This is quite well understood in the context of the DDA. Let me say a little more about that, but again I shall not go into too much detail today. Clause 12 contains a list of factors to be taken into account when considering whether it is reasonable for a school to take a particular step to comply with the reasonable adjustments duty. A list of that kind is not unprecedented. Section 6 of the Disability Discrimination Act has a not dissimilar list.
The noble Baroness, Lady Sharp, and the noble Lord, Lord Clement-Jones, referred to the duty to plan and asked whether that covers the curriculum. The planning duty covers both physical access to school 709 premises and the curriculum. We are fully committed to addressing the recommendation of the DRTF on that point. The duty will include a duty to provide aids, such as colour schemes, hearing loops and sound systems if they are appropriate, to enable children to have access to the curriculum.
I turn now to the implementation timetable for disability provisions. My noble friend Lord Ashley of Stoke and the noble Lord, Lord Rix, were a little worried about whether we should wait until September 2005 with regard to duties to alter physical features, particularly in post-16 institutions. The key issue is to ask all institutions to get on with making the changes. We need to give them a realistic timescale. Many capital programmes are planned over a five year period. I have no doubt that many of them will finish this work before 2005, but that is when we intend to implement the legislation.
The noble Baroness, Lady Darcy de Knayth, the noble Lord, Lord Rix, and my noble friend Lady Warwick asked whether the Bill will cover work experience for students in FE and HE. The Bill covers it indirectly. If a student is in paid employment, he will be covered by Part II of the DDA. If he is not paid, he will not be covered by the employment provisions in Part II, but the institution is likely still to be providing services which will then be caught by this Bill; for example, by helping the student to organise a placement or because it sets the rules that a placement has to be part of the course. Under those circumstances, education providers will need to comply with their duties in how they carry out these services. For example, a college or university might have to consider helping to find a reasonable alternative placement or altering a course to take out the requirement for a work placement. It may be necessary for colleges and universities to try to take steps to raise employers' awareness about meeting the needs of disabled students. Ultimately, it might be necessary to remove an employer from their lists.
Several noble Lords raised the issue of universal neonatal hearing and the programme already agreed by the Department of Health. In July this year the department announced its intention to pilot the programme. Health authorities have now submitted bids to take part and the successful applicants will be announced in the near future. We are well on the way to introducing this important change.
The noble Lord, Lord Lucas, the noble Baroness, Lady Blatch, and the noble Lord, Lord Clement-Jones, asked about research. A whole range of research is being undertaken, including longitudinal studies of young people with SEN. I am happy to provide details of the research we are currently undertaking.
A large number of individual and particular points were made in the debate which I do not have time to answer. The noble Earl, Lord Mar and Kellie, raised a number of questions about Scotland. I am happy to write to him on those points. However, as he will be aware, part of the Bill does not apply to Scotland—those are matters for the Scottish Parliament—and part of it does.
710 In conclusion, perhaps I may say once again how glad I am to hear so much support for the general thrust of the Bill. I know that in Committee we shall have many interesting and spirited debates about points of detail. But we must never lose sight of our overarching determination, which I know is shared by all those who have spoken in the debate, to work towards a more tolerant and a more inclusive society. The Bill better supports children and their families through the SEN framework and puts right the omission of education from the coverage of the Disability Discrimination Act. It is an essential measure if we are serious about our wish to move towards a more tolerant and a more inclusive society and if we are to show our commitment to children with special educational needs and to pupils, students and adult learners with a disability. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Grand Committee.