HL Deb 17 February 2000 vol 609 cc1411-9

(" . The governors of an institution incorporated under section 15 of the Further and Higher Education Act 1992 or under section 112 of this Act shall not incur any personal liability in respect of anything done reasonably and in good faith in the exercise or purported exercise of their powers under section 18 of the Further and Higher Education Act 1992 as amended by this Act.").

The noble Lord said: I rise to move Amendment No. 236A, which stands in my name and that of my noble friend Lady Sharp. I am pleased to see that the noble Baroness, Lady Blatch, has also added her name. This amendment seeks to address an issue of great concern to college governors: that of their personal liability. Since colleges were incorporated in 1993, there has been great concern that in certain circumstances governors might face claims that they were personally liable for problems resulting from some action or default on the part of the governing body which led to a college entering serious contractual or other difficulties. As the law stands at present, governors of further education colleges have significantly less legal protection than school governors, company directors and charitable trustees in such situations.

This question has been raised by the representative bodies in the further education sector on a number of occasions, both under this Government and their predecessor. It has been the consistent view of the DfEE that provided individual governors act honestly and without ulterior motive, showing reasonable care and common sense within the scope of their functions and procedures, they will in practice be protected by existing law against any risk to their own assets as a result of the governing body's decision.

However, the department has acknowledged that there could be exceptional circumstances under which a question of personal liability might arise. More significantly, legal advice from outside the department casts considerable doubt on this interpretation of the law.

I move to another aspect. The Committee on Standards in Public Life was sufficiently concerned about the potential problems in this area that it drew attention to the issue in its second report and subsequently commissioned a legal study on the comparative position across a number of public bodies. That study—entitled Personal Liability in Public Service Organisations, published in summer 1998—confirmed the anomalous position in relation to college governors in particular. The conclusions to that study made clear the need for legislation to ensure equal legal protection for all appointees to responsible bodies of public service organisations in the form of a statutory discretion to grant relief equivalent to Section 61 of the Trustee Act 1925 and Section 727 of the Companies Act 1985.

In conveying the recommendations of the committee to the Prime Minister, the noble Lord, Lord Neill, made it clear that the committee regarded the need for legislation as pressing—that was in the summer of 1998—in order to ensure that all appointees had a right to seek relief from the courts if potential liability arose. To date, the Government have not seen fit to act on those recommendations. I hope that the Minister will either accept this amendment in his reply tonight—in which case I shall be very pleased, as will many college governors—or, at the very least, tell the Committee how and when the Government will act to implement those particular recommendations of the Neill committee.

It is becoming increasingly evident that the question of personal liability being raised in the courts is rather less remote than the DfEE has imagined. This is an issue of considerable importance to college governors up and down the country. Those of us who meet college governors, as many of us do, will have heard it raised by them on many occasions. I beg to move.

Baroness Blatch

The noble Lord, Lord Tope, has covered the ground extremely well. The normal defence in such situations has been that one was acting reasonably; the defence of reasonableness has been so long as governors, or those who sit on the boards of charities, act in good faith, but the world has changed. Personal liability, particularly in the area of governors, as has been well recorded by the noble Lord, Lord Tope, is giving cause for concern. There are very firm recommendations that legislation is needed in this area. It will not be enough for the Minister simply to say that, provided people act reasonably and in good faith, they will receive full protection. Therefore, it will be interesting to hear what the Minister has to say. In the mean time, I support this amendment.

Lord Bach

We have much sympathy with this amendment. We do not resist it. We ask the noble Lord to withdraw his amendment so that we can consider what he and the noble Baroness have said. I do not think that he can expect very much more than that.

We agree with the previous government that if individual governors act in a way that the noble Lord described, honestly and without ulterior motive, showing reasonable care and common sense within the scope of their functions and procedures, as they invariably do, they will be protected against any risks to their own assets as a result of a decision of a governing body. We do not believe that the real risk is anything more than minimal. We do not know of a case where a further education governor has been affected.

We believe that the one group of governors at slightly greater risk is that comprising those in designated institutions because they act as individuals rather than through a corporation. We are taking steps to reduce that risk in Clause 112 by allowing for the incorporation of such institutions.

I point out, in passing, that college corporations may be, and have been, incorporated under both Sections 15 and 16 of the Further and Higher Education Act 1992. The powers are provided under both Sections 18 and 19 of that Act.

This amendment is so drafted—which is why we cannot accept it—as to exclude many governors from the protection it seeks to give. However, we are aware that the issue of liability is, as has been said by representatives of all parties here, of concern to many governors in the FE sector. We should not wish such a perception to affect the valuable work of the governors or to serve as a disincentive to new governors entering the sector.

We are certainly prepared to reconsider this issue, how best we can give some reassurance to FE governors, and to come forward with our own proposals at a later stage. With that assurance, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Tope

I am grateful to the Minister for his reply. I accept the assurance that the Government acknowledge that there is just a viable concern. We all hope that if college governors act reasonably and so on, they will not suffer for it; but the strong possibility exists. They are, in law, in a different position. They do not have the protection of, for instance, school governors. There is an issue here that was addressed by the Neill committee. It is not just my opinion or that of college governors.

I am pleased to hear—perhaps a little belatedly, but better late than never—that the Government will address the issue. I hope that they will be able to return with their amendment so that we know not only that they will address it, but how they will do so. I look forward to that, as will all college governors. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 110 [Assessments relating to learning difficulties]:

Baroness Darcy de Knayth moved Amendment No. 237: Page 49, line 41, after ("1996,") insert— ("( ) a person is identified by the school as someone who will qualify as a student with a learning difficulty or disability (or both) within the meaning of section 13(2), (3) and (4);").

The noble Baroness said: In moving Amendment No. 237, I should like to speak also to Amendment No. 241. I say immediately that these are probing amendments. As they stand, they are alternative ways of achieving the same end. I think that one of them is defective, in any case.

Their aim is to ensure that in their last year of school, students with learning difficulties are assessed so as to identify their individual support needs and arrangements irrespective of whether those students have a statement of special educational need. The disability consortium welcomes the fact that under this Bill all young persons with statements must be assessed. It is concerned that those without statements simply may be assessed. Thorough assessment has often been identified as a major factor in the subsequent successful performance of students and trainees with learning difficulties and/or disabilities. The Tomlinson report recognised that.

My noble friend Lord Rix, who apologises for his non-attendance today, spoke at Second Reading on 17th January, at cols. 921 to 922, about a London study into the transition experiences of people with severe learning difficulties, which demonstrated not only the problem young people had in obtaining a proper assessment but also the quality of those assessments when they were carried out.

A young person may well have a learning difficulty but no statement; he may be one of the 18 per cent as opposed to one of the 2 per cent mentioned by the noble Baroness, Lady Blatch. As the Committee knows, the number of statemented pupils varies enormously between LEAs. Many statements are resource-led but, on the other hand, an LEA may cope so well with pupils with learning difficulties that there is no need to issue a statement of special educational need.

The problem is that those young people without statements are not required under the code of practice to have a transition plan so it is those young people who experience most difficulty during transition. Some may have quite significant impairments and some may have less obvious ones such as a mild learning difficulty or dyslexia which is not sufficiently severe to have triggered a statement. They will often have attended a mainstream school but when they move on to an FE college or training programme, they find that, because their needs have never been properly assessed, they cannot cope with their learning programme. They become disenchanted and may drop out.

The FEFC additional support funding mechanism has often been praised for the way it can respond flexibly across the whole spectrum of disabled learners. I am sure that we should regret it if the Bill created a divided entitlement between those who have statements and those who do not.

As I said at the beginning, these are probing amendments and I understand that it would not be practical to accept them, thereby imposing a duty to assess all school-leavers with a learning difficulty as defined in Clause 13. In fact, it would not even be necessary in some cases. But we are looking for a clear recognition that many of those school-leavers without statements but with learning difficulties will benefit hugely from proper assessment and may well go under if their needs are not assessed. I look forward to hearing the Minister's response but I hope that she will say something about guidance and that she will recognise how crucial it is for many school-leavers without statements to have an assessment before they leave. I beg to move.

7.30 p.m.

Baroness David

I want to add my support to these amendments. I think it is a difficult stage for a lot of children—moving from one stage of education, school, to further education. An assessment may be of great help to them. They need some help at this stage if they have been missed out before and their disability has not been recognised. I hope that we can have some reassurance.

Lord Addington

I merely want to reinforce what has been said. We are talking here about bringing more people into the structures which give them help. The statement system misses people and certain people are not designed for it. As the noble Baroness pointed out, it depends on who you are; who was doing the assessment; and which criteria were being used, which I am afraid vary locally. The current assessment system is much better than what went before it but it is not perfect. I suggest that we should be seeking something along the lines of this amendment, or at least the intention behind it.

Lord Hylton

These amendments touch on a very important matter. I say that as a parent of a son who was diagnosed with a rather particular kind of dyslexia when he had already reached the age of 17. That was some years ago. I hope that matters have improved greatly since those clays. But I believe that there is need for constant vigilance.

Baroness Blackstone

My Lords, I am grateful to the noble Baroness, Lady Darcy de Knayth, for bringing forward her probing amendments because they give me the opportunity to say a little about the purpose of Clause 110.

Clause 110 requires the Secretary of State to arrange an assessment of the education and training needs of pupils with SEN statements who move into other forms of education and training. Under government Amendment No. 243, the assessment will also set out the nature of provision needed to meet those needs.

We set out in our Connexions document how we would expect the arrangement to operate. Those new arrangements will ensure that transition planning into post-16 provision for those with statements of special educational needs starts at 14 and involves all local partners, including the young people themselves, their parents or carers, the local LSC and potential or identified providers of suitable learning opportunities. The young people concerned will have the support of a personal adviser throughout the transition and assessment process. Further details will be the subject of continuing work with our partners, including those representing the interests of students with learning difficulties.

Clause 110 corrects an anomaly. At present, if a statemented pupil stays at school beyond the age of 16, the statement and everything which it guarantees remain in place until his 19th birthday. If that pupil moves into another form of education or training, the statement lapses. Where the transition process is handled effectively, the statement will in practice survive in another form. But, sadly, in some circumstances that has not been the case, and the noble Baroness will be aware of that. For that reason, some young people have been deterred from choosing the type of post-16 education and training which is best for them. The purpose of Clause 110 is to ensure that when a young person with a statement leaves school, his education and training needs are properly set out in all cases. It will give pupils and their parents greater comfort in opting for education or training that is in their best interests, wherever it takes place.

The discretionary power under Clause 110(3) is designed to give the Secretary of State a power to make similar kinds of assessment of the needs of young people where appropriate. That might be appropriate, for example, where a student with a statement of special educational needs remains at school after the compulsory school-leaving age but subsequently leaves to engage in other forms of post-16 learning before he reaches the age of 19. Similarly, where a student develops learning difficulties after leaving school, an assessment may help him to overcome or tackle such difficulties.

I do not believe that we should impose a duty to make an assessment of all students with learning difficulties, as the noble Baroness conceded in her opening remarks. The range of learning difficulties of young people leaving school will be very wide indeed. In some cases, they may be relatively mild. Only a small proportion of students with special educational needs go on to have a statement of those needs under the Education Act 1996. We shall of course expect the Connexions service to spend more time dealing with the young people whose needs are the most complex, whatever their background, in order to secure a truly effective transition.

I hope that that gives the noble Baroness the reassurance that the needs of pupils with learning difficulties will be fully addressed. Clause 110 is in the Bill to remove the anomaly I have described. That anomaly does not arise in the same way for pupils with special educational needs who do not have statements. In view of the reassurance that I have been able to give, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Darcy de Knayth

First, I thank the noble Lord, Lord Addington, the noble Baroness, Lady David, and the noble Lord, Lord Hylton, for their extremely relevant contributions. I thank the Minister for what she said and for her full and careful reply. I am grateful for what she said about students with statements. I shall read carefully in Hansard what she said.

I am not absolutely sure that she met my point about students without statements. I am not sure that there is a sufficiently clear recognition of how badly some of the 18 per cent will need an assessment. I do not know whether she would like to make a clearer statement about that now and whether it will be possible to include in guidance how important it is for many of them to be assessed. I believe that Clause 110 uses the words "if appropriate". I shall read what she said and perhaps have further discussions with the noble Baroness and the department. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blackstone moved Amendment No. 238: Page 50, line 2, leave out from ("to") to end of line 4 and insert ("receive post-16 education or training (within the meaning of Part I of this Act) or higher education (within the meaning of the Education Reform Act 1988).").

The noble Baroness said: In moving Amendment No. 238, I shall speak also to Amendments Nos. 239, 240, 242 and 243. These amendments clarify the arrangements for assessments to be undertaken under Clause 110. Amendment No. 238 ensures that the Bill more accurately reflects the type of provision which young people leaving school, and for whom assessments may be appropriate, might enter. The effect of Amendment No. 238 will be that young people leaving school with a statement will be entitled to an assessment whatever course of post-16 education or training or higher education they wish to undertake. For post-16 education and training, this amendment aligns the entitlement to an assessment with the principal functions of the LSC for people under the age of 19 and the range of provision which it can secure for young people.

Amendments Nos. 239, 240, 242 and 243 define more clearly the nature and purpose of an assessment. Their effect is to make clear that an assessment must result in a written report which sets out not only the education and training needs of a young person but also what kind of provision is required to meet those needs.

These are important provisions. Noble Lords will remember that Clause 13(2) places the LSC under a duty to have regard to an assessment conducted under the clause we are discussing. The combined effect of these two clauses will be to ensure that at last we can make sure that the transition from school to post-16 education outside school goes well for people with special educational needs. I beg to move.

Baroness Blatch

As I understand it, the amendments refer to the formal assessments that apply to somewhere between 2 per cent and 4 per cent of young people, or have done hitherto. My understanding of the previous amendments was that the noble Baroness, Lady Darcy de Knayth, referred to both formal and informal assessments of all young people. Therefore, their needs would be assessed, whether or not they fall short of the formal statement requirements. I understood that there would be an assurance, which I do not think is contained in Clause 110, that appropriate provision would be provided on the back of an assessment. I understood that that would apply whether the assessment was formal, as set out in Clause 110, or whether it falls short of that for the many young people who will still need assessing for appropriate provision.

Baroness Blackstone

The amendments relate to young people leaving school with a statement. Therefore, the noble Baroness is right in pursuing her question. However, I give the same assurance to her that I gave to the noble Baroness, Lady Darcy de Knayth. It is our intention to ensure absolutely that all young people with learning disabilities are given the special help they need.

Lord Addington

I thank the Minister for the amendments which give a greater degree of coherence to the provisions for those with special needs. I thank both noble Baronesses for the debate. The more often we see repeated in Hansard that we shall do more for the future, the easier it will be when the time comes.

Baroness Darcy de Knayth

I echo the thanks of the noble Lord, Lord Addington. However, I shall pursue the point I raised regarding the 18 per cent of young people to whom I referred.

On Question, amendment agreed to.

Baroness Blackstone moved Amendments Nos. 239 and 240: Page 50, line 5. after ("arrange") insert ("for"). Page 50, line 5, leave out ("person's educational and training needs") and insert ("person").

On Question, amendments agreed to.

[Amendment No. 241 not moved.]

Baroness Blackstone moved Amendments Nos. 242 and 243: Page 50, line 9, leave out ("of the educational and training needs"). Page 50, line 13, at end insert— ("( ) For the purposes of this section an assessment of a person is an assessment resulting in a written report of

  1. (a) his educational and training needs, and
  2. (b) the provision required to meet them.").

On Question, amendments agreed to.

Clause 110, as amended, agreed to.

Clause 111 agreed to.

Clause 112 [Further education sector: designated institutions.]:

Baroness Sharp of Guildford moved Amendment No. 244: Page 51. line 8, at beginning insert ("Subject to the preservation of the essential nature of the institutions designated therein").

The noble Baroness said: Amendment No. 244 is a minor, probing amendment. Clause 112 relates to designated institutions in the further education sector, of which there are a number, such as the Working Men's College, of which the noble Lord, Lord McIntosh, is a governor. I refer also to a number of the residential colleges, the WEA, and so forth, who are a little uncertain as to their future under the new arrangements of the learning and skills council. They seek an assurance that the essential character of the institutions will be preserved under the new arrangements. I hope that the Minister will be able to give such an assurance. I beg to move.

7.45 p.m.

Baroness Blackstone

Section 28 of the Further and Higher Education Act 1992 designated, as eligible to receive support from the FEFC, voluntary aided sixth-form colleges, institutions (other than schools) assisted by the LEA, and grant aided institutions. It did not permit the incorporation of the governing bodies of these institutions. We have received representations from a number of those concerned with this special group of sixth-form colleges. In these provisions we address their main concerns and are pleased to respond to their requests.

The Secretary of State will be able to incorporate the governing bodies of existing designated sixth-form colleges or those that may be designated in the future. It will also allow the Secretary of State, when incorporating a governing body, to specify the corporation's powers and to confer exempt charitable status upon the corporation and the institution.

The Committee may be concerned that in replacing Section 30 we threatened the protection afforded to voluntary aided schools on entering the sector. That is not the case. Indeed, we have taken care to ensure that all voluntary aided schools which enter the sector through the designation route will still be covered by the requirement on the trustees of voluntary aided sixth-form colleges to appoint a majority of governors with a view to ensuring that the established character of the institution at the time of its designation is preserved and that it is conducted in line with any trust deed relating to it. We have extended the protection to apply to institutions either specified or in a class specified by the Secretary of State that in future enter the sector through the designation route. In view of that.. I hope that the noble Baroness will understand that the amendment is unnecessary and will withdraw it.

Baroness Sharp of Guildford

I thank the Minister for her full reply. I believe that gives us the assurance we have been seeking. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 112 agreed to.

Clause 113 agreed to.

Baroness Blackstone moved Amendment No. 245: After Clause 113, insert the following new clause—