Special Educational Needs Code of Practice

HL Deb 29 October 2001 vol 627 cc1242-62

7.33 p.m.

Baroness Ashton of Upholland rose to move, That the draft code of practice laid before the House on 23rd October be approved.

The noble Baroness said: My Lords, regulations made under the 1996 Act, which were also laid before this House on 23rd October and are referred to in the draft code of practice, provide the detail of the statutory requirements for assessments, statements and reviews of statements of special educational needs in England. These consolidate the Education (Special Educational Needs) (England) Regulations 2001, the Education (Special Educational Needs) (England) (Amendment) Regulations 2001 and the Education (Special Educational Needs) (England) (Amendment No. 2) Regulations 2001, which themselves replaced the 1994 regulations.

Noble Lords will know that we withdrew a previous draft of the revised code of practice from Parliament in July in the light of concerns expressed by Members of both Houses, many on behalf of parents, about the guidance concerning statements of special educational needs. We have reflected carefully on those concerns and addressed them in the present draft. The current code of practice has done much to improve the identification and assessment of special educational needs. Ofsted reports on the implementation of the code of practice have shown that it has helped schools considerably in identifying children with special educational needs and matching appropriate provision to their needs. That is due in very large measure to the careful and thoughtful way in which the noble Baroness, Lady Blatch, developed the code of practice and steered it through this House and into practice.

It is not surprising, however, that the operation of the code has shown us ways in which it may be improved. In particular, teachers and local education authorities have told us to look at reducing the bureaucracy in the code and to focus more on teaching and learning and reflect within it important developments in education.

We consulted extensively on a draft revised code of practice. Over 30,000 copies of a consultation draft were sent out between July and October 2000, and we received over 1,000 responses from a wide range of organisations and individuals. Officials attended many conferences and meetings to listen to people's views. Most people favoured the main changes we proposed but some issues were raised. We listened carefully to people's views on these issues and made a number of changes to the draft. In chapter 1 we brought together the strategic planning functions of school governing bodies and LEAs for SEN to make it easier for parents and others to know who is responsible for what. In chapter 2 we have provided fuller guidance for LEAs on the services that they are expected to provide to parents through parent partnership services and their arrangements for resolving disagreements with schools and parents, including minimum standards.

In chapter 3 we have strengthened considerably the guidance on seeking and taking account of the views of children with SEN. Chapters 4, 5 and 6 now give stronger support for the role of the SEN co-ordinal or in helping school governing bodies and head teachers to raise standards of achievement for children with SEN and recognition of their need for support within the school. The guidance on assessments in chapter 7 has been strengthened by clarifying the terms on which LEAs should seek advice and making clear that they should seek the views of the child. We have enhanced the guidance on specifying provision for individual pupils in their statements and highlighted the accountability which schools and LEAs share for children with statements when funds are delegated in chapter 8.

The draft code of practice that we are considering today is all about removing barriers to participation and learning and raising the attainment of all children. Its key principle—that children with special educational needs should have their needs met—reflects the Government's belief that providing effective support for children with SEN is an essential feature of an effective school. We are supporting the greater emphasis in the draft code of practice on the early identification of children's special educational needs with £25 million over the next three years to help LEAs and their early years development and childcare partnerships to improve local provision for young children with SEN. There is also a multi-agency working party to consider the needs of children under two with SEN and disabilities and their families, working with the Department of Health to consider the educational implications of the introduction of new-born hearing screening.

Noble Lords will be very aware that children can have special educational needs at different stages of their school career, not just in the early years. That is why we have developed the guidance in the draft code of practice on school-based intervention to focus less on procedures and more on improving teaching and learning at all times.

We have given proper recognition to the role of class and subject teachers in identifying children's SEN and tailoring their approaches to meet those needs. We have reduced the number of school-based elements from three to two and cut the paperwork on individual education plans and annual reviews to free up time for teachers to concentrate on helping children to learn.

Teachers and other professionals play a crucial role in making effective provision for children with SEN. But children themselves have a unique perspective. They know what it feels like to have the learning difficulties that they have and can tell us their wishes and aspirations. The draft code places the voice of the child at the heart of provision for special educational needs. It expects schools and LEAs to seek and take account of the views and wishes of children with SEN throughout their school lives. This includes during statutory assessments, the management of individual education plans, attending annual reviews and drawing up transition plans.

Partnership with parents is given fresh impetus and greater emphasis in the draft code. The code makes clear that the parent partnership services and disagreement resolution services that LEAs are expected to provide, following the Special Educational Needs and Disability Act 2001, should be of high quality, and they will in no way affect the right of parents to appeal to the SEN Tribunal.

Essential guidance on the key features of the new statutory framework for inclusion, also introduced in the SEN and Disability Act, is set out in the draft code of practice. But we have also been consulting teachers, governors, local education authorities, teacher associations, voluntary groups, parents and others on separate statutory guidance on the new arrangements for inclusion. Copies of the guidance have been placed in the Library. We aim to publish it formally alongside the revised SEN code of practice.

The guidance provides practical advice on how the inclusion framework interacts with other provisions within the Education Act 1996; the kinds of reasonable steps that maintained schools and LEAs should consider taking to prevent inclusion being incompatible with the efficient education of other children; instances when it may not be possible to include specific children; and the safeguards which protect the interests of individual children with special educational needs.

Inclusion can improve the educational experience of all children, but one size does not fit all. There is a continuing and vital role for special schools in an inclusive education system. They form part of the continuum of education, offering high quality education to children best educated in them, as well as supporting children being educated in mainstream schools. They are key partners in our strategy on inclusion.

In the debate held last July in another place on the previous draft of the revised code of practice, it was clear that a number of honourable Members were anxious that guidance on quantifying the special educational provision in children's statements of SEN could be interpreted as encouraging vague statements. Noble Lords expressed similar concerns ahead of the debate scheduled for 12th July in this House.

At the time we took the decision to withdraw the draft code of practice and to reflect very carefully on the guidance on quantifying provision in statements. I want to make it absolutely clear that it was never the Government's intention to weaken the position of children with statements. The guidance in the previous draft of the code of practice laid before the House in June made it clear that a statement should describe all of the child's special educational needs clearly and in full; set out the main objectives that the special educational provision aims to meet; specify clearly and in detail appropriate provision to meet each of the child's needs; describe the arrangements for setting shorter-term objectives for the child; and any special arrangements for the annual review of the statement. It stressed the importance of school monitoring and evaluation of the child's progress during the year and placed a new emphasis on the importance of the child's progress towards identified outcomes being monitored by the LEA with the school.

The current code of practice, introduced in 1994, advises that provision in a child's statement should, normally be specific, detailed and quantified".

The draft code we placed before the House in June advised that appropriate provision for each identified need should always be specified in terms that are clear, specific and detailed. It made absolutely clear that LEAs must not have blanket policies of never quantifying provision in statements. And, following helpful interventions during the debates on the Special Educational Needs and Disability Act from the noble Baroness, Lady Darcy de Knayth, and the noble Lord, Lord Lucas, the section in the draft code on assessments was strengthened to make it clear that professionals giving advice can comment on the amount of provision they consider appropriate for a child, and that LEAs must not have blanket policies preventing that.

The draft code we are now considering retains all of that advice, but it also makes clear that provision in statements should normally be quantified in terms, for example, of hours and staffing arrangements. The change should remove any doubt about encouraging vague statements. The draft also recognises—as does the current code of practice—that cases will arise where some flexibility is required to meet the changing needs of the child concerned. That is very important. No code of practice can dictate the precise details of the provision to be made for each and every individual child.

It also includes some other changes. First, the advice relating to children with medical needs contained in chapter 7 of the draft code clarifies that, where a child has medical needs which impact on their access to education, local education authorities should consider whether there is a need for statutory assessment by reference to the detailed guidance set out earlier in the same chapter under four broad areas of need.

Secondly, the advice in chapter 8 on school placements now makes it clear that school governing bodies cannot refuse their school being named in a child's statement; they can only argue against it. The changes we have made to Schedule 27 to the Education Act 1996 ensure that schools are always sent copies of proposed statements before decisions are made about placements. This will put LEAs, schools and parents in a better position to consider and discuss placements at an earlier stage.

Thirdly, the draft code of practice and the associated regulations clarify that those giving advice can comment on the type of provision they consider appropriate if they wish, but, as now, cannot give the name of a particular school. The draft code makes it clear that this should not, of course, pre-empt the parent's statement of a preference for a particular school or the LEA's eventual decision about the school, type of school or education other than school-based that it considers appropriate.

Issues were also raised concerning the advice contained in the previous draft code of practice as regards LEAs' duties to identify children with special educational needs who may need statements. The noble Baroness, Lady Darcy de Knayth, had been concerned about the position of children with SEN who are excluded from school.

I believe that the draft code now laid before the House is clear on the duties of LEAs. Indeed, it sets out the new requirements for LEAs to publish their arrangements for identifying children with SEN from July 2002. In practice, LEAs are able to fulfil this duty without the need for additional bureaucratic burdens to be placed on schools. Parents of children without statements have always been able to request assessments. Following the SEN and Disability Act, schools will be able to request assessments and have their requests considered within the same six-week timescale as requests from parents.

I appreciate the concerns expressed by the noble Baroness, Lady Darcy de Knayth, about children who are excluded from school. She will be pleased to learn that from January 2002 we shall be collecting additional data, by LEA, on children with statements who are excluded from school. Furthermore, from September 2002 we shall ensure that any child who is excluded from school for 15 weeks receives suitable full-time education. We expect LEAs to ensure that children with special educational needs who are excluded from school receive provision that is appropriate to their special educational needs.

Some noble Lords have raised issues concerning the parents of children with statements who choose to educate their children at home. Advice on this is included in the draft code. It makes clear that where such education takes place, local education authorities will retain their duty to ensure that the child's needs are met. The statement must remain in force and the authority must make sure that parents can make suitable arrangements. The term "suitable arrangements" does not mean having to specify exact arrangements in the child's statement. However, the authority must satisfy itself that the arrangements put in place by the parents are suitable to meet the needs of the child. Where that is the case, the authority is relieved of its duty to arrange for provision as specified. If, however, the arrangements fall short, then the authority is not absolved of its responsibility. However, the authority could, for example, itself make some provision to help the parents to put in place suitable arrangements. Furthermore, even where authorities are satisfied that arrangements are suitable, they will still have a duty to maintain the child's statement and to review it annually.

I hope that noble Lords will see that we have taken extremely seriously all the views that have been put to us. I am enormously grateful for the comments and advice that we received. I hope that noble Lords will now approve the draft code. I commend the draft code of practice to the House.

Moved, That the draft Code of Practice laid before the House on 23rd October be approved.—(Baroness Ashton of Upholland.)

7.45 p.m.

Baroness Blatch

My Lords, I am grateful to the noble Baroness for her comprehensive introduction of the draft code of practice. No doubt many of the points to be raised in our debate will already have been touched on by the noble Baroness in the course of her detailed comments.

Like many other noble Lords, I welcomed the withdrawal of the former draft special educational needs code of practice which was laid before the House earlier this year. It was clear at the time that the drafting was unsatisfactory. Indeed, most of the points of concern had been raised during the course of the debates on the Special Educational Needs and Disability Bill as it made its way through this House. Ever since the then Secretary of State, the right honourable David Blunkett, downgraded the need for specificity in the drafting of statements for children with special educational needs, I and many others, in particular those organisations representing children with special educational needs, have fought to have statements written in such a way that the detail of educational needs in terms of hours of provision, staffing arrangements and any additional equipment requirements should be specified. We also argued strongly for flexibility only—I stress this—in exceptional circumstances.

The changes made to the draft laid before the House tonight are welcome, but they are by no means perfect. For example, the Royal National Institute for the Blind is concerned about omissions from the draft code as regards provision for mobility education for children with sight impairment and the need for guidance on detecting visual impairment. We know that work has been carried out to establish more widespread screening of babies for sight impairment. It would be helpful to know today what progress has been made by the department. I understand that 30th October is Eye Test Action Day and that literature will be provided by the Royal National Institute for the Blind to emphasise the importance to parents of having sight tests for their children.

As to the question of mobility, it is important to make the point that mobility education for children with sight impairment is as important as language or speech therapy for children with other difficulties. It is a pity that this has not been properly addressed in the code.

But, having said that, like many other organisations, the Royal National Institute for the Blind wishes to see the code approved to allow schools and LEAs to get on with its implementation.

As the Minister said, the earlier 1994 code contained a requirement for clear and precise wording of statements. We are pleased to see that the wording has been reinstated. We welcome the changes in paragraph 7 to improve intervention measures for children who, through other medical needs, are prevented from gaining free access to education, and we also welcome the clarification of the respective roles of schools and LEAs concerning the allocation of funding and provision of information.

Although there has been a widespread welcome for the code and the fact that the contents of statements are now to be more specific, the wording is still not right. For example, paragraph 8.37 of the code leaves something to be desired. The Independent Panel for Special Educational Advice has expressed a concern—with which I entirely agree—about the words, some flexibility should be retained in order to meet the changing special educational needs of the child concerned". IPSEA speaks for many of us. It believes that guidance should be issued to make it clear to LEAs that the Government envisage only a very small number of children—the genuinely exceptional cases—require statements in which provision is not quantified.

IPSEA states its reasons for taking this view as: A statement which fails to quantify provision (no matter how positive and benign an LEA's intentions) leaves the child without the protection which the whole assessment process, and finalised Statement, was meant to put in place. An unquantified Statement is inevitably, by definition, a risk. For this reason, extreme caution needs to be exercised by LEAs when considering whether a child's statement should be quantified or flexible. Indeed, they should bear in mind Counsel's Opinion on this issue, provided by David Wolfe (which the Government has seen and which was copied to Lords for the last debate). Wolfe points out that 'if a child's needs are known to fluctuate, that…can be accommodated without losing the protection which comes from quantification. For example, if a child needs speech therapy but the amount they need varies from week to week, then that can be reflected by quantifying provision over, say, a term…provision for a child whose ability to benefit from speech therapy varies according to his medical condition could be quantified as follows: weekly sessions with a speech therapist of an average length of one hour each leading to a termly total of at least 13 hours. In my opinion, such a formulation allows for appropriate flexibility while also ensuring that the child is protected and (importantly) the school and the LEA know what they need to do in order to meet the child's identified needs'. In short, it is extremely difficult to imagine a situation in which the need to provide flexibility has to be at the expense of quantification. Further, it is difficult to imagine very many cases in which flexibility is appropriate. The overwhelming majority of children with statements of special educational needs have learning difficulties which arise from life-long conditions: their needs are stable. Changes will of course be needed, over time, to the provision they receive, but the review and amendment processes have always allowed for this. If a child's needs require it, a statement can be amended at the stroke of a pen by an LEA, following the statutory period of 15 days for parents to comment on the proposal to amend. The example provided by David Wolfe indicates how exceptional the need for flexibility is. A statement from the Minister to the effect that flexibility is appropriate not just in the minority of cases, but in an exceedingly small and clearly exceptional minority, would be helpful as reinforcement to the guidance in the Code. It is also essential that Government guidance keeps up with changes in case law. The judgment of Justice Laws in L v. Clarke and Somerset County Council (1998) post-dated the original Code of Practice and refined the interpretation which LEAs must make of their duty under s324 to specify special educational provision in a statement. Included in the judgment was this passage: 'It would seem that in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum, unless hours per week are set out. The real question, therefore, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case'. It would be useful if the Minister would confirm that LEAs must act in accordance with case law as well as the Code of Practice. It is a waste of public resources, apart from anything else, for parents to have to appeal to the SENT [Special Educational Needs Tribunal] in order that Part 3 of their child's statement should leave no room for doubt as to what has been decided is necessary for their child". I am therefore asking the Minister to place on record that statements will normally be specific and quantified in terms of hours of provision and staffing arrangements, and that only in very exceptional circumstances will LEAs be able to depart from the normal procedure. One test of exceptionality would be when it is not possible to quantify in terms of hours of provision or staffing arrangements. For the life of me, I find it hard to think of a single exceptional case.

I gave the noble Baroness notice of a related concern to do with Section 324(4)(a) of the Education Act 1996 as amended by the Special Educational Needs and Disability Act. The noble Baroness touched on the point, but I wish to emphasise it because I am not sure that the whole point was addressed. I understand a letter has been sent to the Minister, Estelle Morris, asking her to look again at what appears to be an error in the Act. The noble Baroness did not refer to it as being a mistake.

For children who are electively home educated and for whom a statement is maintained, it would appear that the parents have a duty to arrange the provisions specified in the statement. Yet there is no such duty on parents in the Education Act 1996. Does the Minister have any further news as to whether there is a disconnection between what the Act states and what the amended Act is intended to mean? I know that Mrs McLean, of Spearhead, which is the organisation most concerned about education at home, would be interested in any reply.

I should now like to say a word about paragraph 7.80 of the draft. In my view, paragraph 7.80 is badly drafted. Perhaps I may read from part-way through the paragraph: "Discussions between advisers and parents about the child's needs may include consideration of various options, including the scope for mainstream education for the child and the type of school in which the child's needs might best be met, for example, mainstream, special or residential". Part of that paragraph is otiose. The point is made twice. I think I know where the department is coming from and why it makes the point twice, but, frankly, it should not be there. The words, including the scope for mainstream education for the child", are otiose because the paragraph states that, Discussions between advisers and parents about the child's needs may include consideration of various options". The various options relate to the type of school in which the child's needs might best be met—for example, mainstream, special or residential. The words do not have be there twice. Although I shall not oppose the Motion, I point out to the noble Baroness that that may be confusing. There may be a deliberate hidden message.

We are grateful to the noble Baroness. Following earlier debates in another place and the debate on my amendment in July, she was probably influential in persuading her colleagues to withdraw the draft code of practice for revision. For that we thank her most warmly. If I may be so bold as to say so, how I wish the noble Baroness had taken the Bill through the House. Many of the points made during our proceedings would have resonated more strongly with her. However, we shall not oppose the code of practice. We wish it well, especially if we can have some of the assurances that have been sought.

There is one vexed point. We are placing on local authorities an onerous duty to deliver effectively what the Government want them to deliver. If they do not have the resources, they will be unable to do so. That point needs to be made strongly.

Finally, the test of the code of practice will be the degree to which early special educational needs are identified; the degree to which they are specified; the degree to which the specification is appropriate; and, the degree to which, where possible—if it is consistent with the special educational needs of the child—it honours the parents' wishes.

8 p.m.

Baroness Sharp of Guildford

My Lords, we on these Benches very much welcome the new code of practice. There has been lengthy consultation on the code, over some 18 months. It carries forward the Government's inclusion agenda that we debated at some length earlier in relation to the Special Educational Needs and Disabilities Bill. We welcome in particular the strategic approach that is now incorporated in the code of practice, and its emphasis on links between agencies.

We are pleased to see the shift from the five-stage special educational needs approach to the three-stage approach, and the fact that the code clarifies the respective role of schools and local education authorities, including the information on what schools are expected to provide from their delegated budgets. We are pleased to see arrangements for the training and support of staff with SEN responsibilities. We are pleased to see the arrangements for monitoring admissions of children with SEN to maintained schools. We are delighted that there is now guidance for provision in the early years settings. We are also delighted that there are arrangements for reviewing and updating the policy itself.

In particular, we welcome the emphasis on participation by parents and pupils. Perhaps I may draw the attention of the House to paragraph 7.85, which makes it clear that LEAs, should also seek to ascertain the views of children and young people as part of the assessment". That issue was raised at some length when we debated the Bill. I am pleased to see that it is now incorporated in the code of practice.

Like the noble Baroness, Lady Blatch, in the debates in July we had considerable difficulties in regard to paragraphs 8.36 and 8.37 on the issue of quantification. We were alarmed at the watering down of the promise that we had been given, as we thought, by the Minister that he would strengthen the pressure on LEAs for quantification. We felt that the weasel words "as necessary" in the original draft made it much too easy for LEAs to wriggle away from their obligations.

This has been a long-term and difficult problem for those dealing with SEN issues. I have been approached by many parents, concerned about the fact that they thought that they had got it clear as to what provision would be available—say, in speech therapy for their children—only to find that, when it came to it, it was not provided and the LEAs were able to argue that provision of speech therapy could imply one hour a week or it could imply eight hours a week. We were extremely concerned about the issue.

The new wording is considerably better than the old wording. The code now makes it clear that provision shall normally be quantified, although—a point made by the noble Baroness, Lady Blatch—there will be cases where some flexibility should be maintained.

Our preference on these Benches—like that of the Conservatives—would have been for rather more emphasis on the exceptional nature of non-quantification. We should have preferred wording such as, "although in a few cases", or "occasionally, it may be necessary to retain some flexibility". Like the noble Baroness, Lady Blatch, I hope that the Minister can give us assurances that the intention is that it will be exceptional for quantification not to take place.

Generally speaking, we welcome the new code of practice. We welcome also the fact that attempts have been made between the two codes to clarify the assessment of children with medical needs and the guidance on requests for advice from professionals working with LEAs and the position on the naming of schools.

I echo the points made by the noble Baroness, Lady Blatch, about the evidence from the RNIB and its worries about those with visual impairment. This emphasises the need for early screening. We dealt with the point at length during our debates on the Bill. The earlier a disability is known about, the better it will be for the person concerned. The RNIB's comments have considerable merit. The same is true in regard to mobility education.

Finally, I again echo the words of the noble Baroness, Lady Blatch. We are delighted to see the publication of the code of practice and we welcome it. However, we emphasise once again the question of resources. We have willed the ends, but we must make sure that there are sufficient means to meet those ends.

Lord Rix

My Lords, I begin by declaring a personal interest. Having a new grandson with Down's syndrome—with whom I have just spent a very happy day, noting his excellent progress—I am conscious of being close to someone who might well be directly affected by the code of practice, perhaps in the special "under two" category, and certainly a little later on. Perhaps I should also declare an interest as one of those who, during your Lordships' debates on the Special Educational Needs and Disability Bill, pressed for assurance to be made doubly sure in areas of doubt—if not in the Bill itself, then in the guidance issued with it. The government response during debates on the Bill was frequently in terms of what should be incorporated in two codes of practice, the regulations, one or more circulars, and what I must now learn to call the "toolkit". Those who have tried to navigate and drive while referring to several different maps will share my concern that there might be more confusion than direction.

Given the often heated debate about educational theories and the politics of education, I ask one thing above all others of the code and the rest of the guidelines—in addition to coherence. The absolutely basic issue is a relevant and appropriate education for each and every child. I have concerns about what I shall term the "cop-out" clause—the one modifying the rights of disabled children by reference to the efficient education of other children. Safeguards are needed, but I need assurance that the use of this clause will be closely monitored to stop it being used to excuse poor management of inadequate resources.

With these caveats, I welcome the code, and hope that it will be read and acted upon, and not merely added to the groaning staff-room shelf of volumes telling schools how to teach. In particular, I welcome the acceptance that the way in which educational provision is described should always be specific, and that it should normally be quantified. I am glad that the Government have been able to respond favourably to the concerns expressed by your Lordships and others. I still have three or four questions that I want to raise, in the hope of a reassuring reply.

The first concerns the thorny issue of flexibility—which has already been touched on by the noble Baroness, Lady Blatch—and, most importantly, who benefits from it. What worries parents is the flexibility that some schools have shown in using funding intended for pupils with special educational needs for quite other purposes. It would be very reassuring to hear that schools are to be accountable for the significant moneys that are given to them to meet the special educational needs of their pupils.

I note that we have some small changes to consider in the way that the code deals with children with health needs. That has already been referred to. I have spoken before about Mencap's report Don't Count Me Out, which tells the sad tales of youngsters excluded from aspects of school life because of their additional health needs. As ever more severely disabled children survive their early months and years and have a future, we need to make sure that our schools are geared up for them.

I am not sure that we have got things quite right in the code. If, for example, a child needs medication during the school day, parents need to feel confident that school staff will be able and willing to give it. I should like to be assured that schools know and accept their responsibility for getting that right. Some schools have clearly been struggling with those issues. With medical needs, as with sensory support, lack of awareness of needs and lack of an appropriate response can mean exclusion from appropriate education.

Finally, whether we like it or not, we live in a doctrinaire age, with a number of the interested parties determined on change for change's sake. I should welcome a reassurance that the code is thought likely to stand up to, for example, the strain of local or national policies of increasing numbers of specialist schools. I know that we seem to have an education Bill a year, but I cannot believe that legislation is necessarily the right way. A continuing dialogue between the Government and the Special Educational Consortium might deliver what is required by way of a regular review.

I notice the hint of a further code revision, which may well be necessary. However, if there is one thing even more likely than too much guidance to persuade people to ignore it, it is the likelihood of frequent changes in guidance. On the other hand, if we have good guidance that is accessible to those affected by it, there is a better chance of it being implemented.

I hope that the Minister will be able to give me at least some of the assurances that I am seeking. We have in our hands the futures of many children with special educational needs—children we value for who they are and for what they could be.

Lord Renton

My Lords, I apologise to the Minister and to your Lordships for being late to this debate. Like the noble Lord, Lord Hylton, I have been to the funeral of a dear friend and former Member of this House.

I have a severely handicapped daughter. Like the noble Lord, Lord Rix, I have been closely involved with Mencap for many years. We have each been its national chairman.

I draw your Lordships' attention to a short but vital quotation on page 65 of the report. Chapter 7, paragraph 9, under the heading "Request by the child's school or setting", states: In some cases, schools or settings will conclude, after they have taken action to meet the learning difficulties of a child, that the child's needs remain so substantial that they cannot be met effectively within the resources normally available to the school or setting". I ask the Minister to bear that in mind. Many children have such serious learning difficulties that they need special education at a school that can help them better than those that provide normal education. I know that Mencap and many others consider it unfortunate to have to send children away from normal schools and to special schools, but it has to be done. I press the Government on the issue.

There are three important factors to bear in mind. The first is that most young people with special educational needs learn more at special schools than they can be taught at normal schools. Secondly, such unfortunate children are often teased and occasionally bullied at normal schools. Thirdly, the burden on teachers at normal schools has often been increased by their having to teach pupils with learning difficulties. I ask the Government to bear those important factors in mind.

8.15 p.m.

Baroness Darcy de Knayth

My Lords, it is a pleasure to welcome the draft code of practice. It is a much bonnier baby than when it first lay on the Table in July. That previous draft contained many welcome changes, as the Minister has said, including the simplification of the school-based stages, clearer guidance on speech therapy provision, duties to meet transport costs of children in distant residential schools, and a greater emphasis on the importance of seeking the views of children and young people.

I am particularly grateful to the Minister and the Secretary of State for having the guts and good sense to withdraw the code in order to get it absolutely right. I thank the Minister for being so willing to meet, discuss and listen, and I also thank her officials for all their help.

The revised draft is improved. As the Minister said, it makes clear an LEA's duty to consider the formal assessment of children whose medical needs constitute a barrier to accessing educational provision. Many of the organisations had been concerned about that, including IPSEA—of which I am a member—Mencap and the RNIB. The noble Baroness, Lady Blatch, has already flagged up that tomorrow, 30th October, is Eye Test Action Day. I also support what she and the noble Baroness, Lady Sharp, have said. I was horrified to see recent research that shows that one in five schoolchildren may have undetected poor sight.

I also welcome the clarification in the new code that school governors cannot lawfully refuse a place to a child when their school is named in a child's statement, but can only argue against it.

The most important change is the inclusion in the code of guidance on the need, in the majority of statements, for special educational provision to be quantified. If not, there is no guarantee that a child will receive the help to which he or she is legally entitled. That is reinforced by the additional guidance that LEAs must not operate blanket policies of refusing to quantify provision and must not try to prevent professionals recording an opinion on the amount of help that a child needs in their assessment reports. The reinstatement of guidance on quantification and the additions that strengthen it are most welcome.

However, for the guidance to result in improvements for children, two things must happen. First, the LEAs must refrain from using the argument that a child's need for flexible provision justifies a vague statement. Like the noble Baroness, Lady Blatch, and David Wolfe, whom she quotes, I see no reason why flexible arrangements cannot be conveyed in a quantified way that retains the protective functions of the statement. I hope that the Minister will be able to reassure the noble Baronesses, Lady Blatch and Lady Sharp, and the rest of us that the overwhelming majority of cases will be quantified and that the absence of quantification will be appropriate only in exceptional cases. That is what all the disability organisations wanted. Furthermore, it would be helpful if the Minister could stress the Government's expectation that in these exceptional cases, LEAs will base their decision on professional evidence with regard to the individual child's need for flexibility.

Secondly, while the advice against blanket policies to produce vague statements is welcome, such policies are, of course, illegal. Unfortunately, in the past the Secretary of State has been slow to respond to formal complaints made against LEAs which are operating blanket policies. I know of one instance in which the department took a whole year to react to the complaint, even though officials were provided 'with clear written evidence that the policy was in operation. Now that the code has added government guidance on that issue, which is hugely welcome, it would be encouraging to have an assurance that in future, where there is clear written evidence of an LEA operating a blanket policy, the Secretary of State will act swiftly to quash it.

Before moving to my final point about excluded children, I should like to support the point made by the noble Baroness, Lady Blatch, about Spearhead's worries about the implication that parents have a duty to arrange the provision specified. I hope that the Minister can set at rest Spearhead's anxieties on that point.

Finally, I should like to say something about excluded children. IPSEA and the RNIB are particularly worried about excluded children. About 20 per cent of IPSEA's children are not necessarily excluded from school but are out of school or excluded at any one time. Around half of the children who are excluded from school at any one time have special educational needs. I sought to persuade the Minister to include in the code of practice guidance that LE As should identify among those children and young people who are excluded those with special educational needs as the likelihood is that their exclusion in most cases will have resulted from those needs not being met. I was not sufficiently persuaded at the time. Therefore, I am absolutely delighted to hear what the Minister said in her opening speech and I am very grateful for that. I reiterate my very warm welcome to a significantly improved code which will greatly benefit parents, teachers and, of course, children with special educational needs with or without statements.

Baroness David

My Lords, having been involved for a long time in the whole special educational sphere I am delighted to follow the noble Baroness, Lady Darcy de Knayth, as I think that I agreed with everything she said. I congratulate the Government on having paid such attention to the matter even though it has taken quite a long time to get the draft code revised. From all that has been said around the House it appears that it has had a warm welcome. There may be a few criticisms and warnings but I think that they will be attended to. I have great faith that the Minister will follow up everything that has been said tonight.

I also pay tribute to the noble Baroness, Lady Blatch, who during the passage of the 1996 Act went to an enormous amount of trouble to consult on the code. We have moved on a further stage. I say to the noble Lord, Lord Renton, that I believe the Government have accepted that special schools are necessary. I am sure also that the comments of the noble Lord, Lord Rix, with all his experience will be paid attention to.

I congratulate the Minister and the Government on the great success of the draft code. I say to the noble Baroness, Lady Sharp, that I too support paragraph 7:85 on the views of the child. I believe that that has now been generally recognised and accepted everywhere although that was not the case some years ago.

Lord Baker of Dorking

My Lords, I welcome the revised code. I apologise for not being present to hear all of the Minister's opening remarks. I was late as I was attending a charity fundraising event for the special school of which I am president. I declare that as an interest. The school in question is Dorton House, a school for blind children. It is a centre of international excellence and takes in children from the age of two to two-and-a-half and takes them through to a further education college at the age of 25.

The Minister will know from the briefings she will have had on debates that took place earlier this year that long hours were devoted to the relationship of special schools to the Government's policy. The Government's policy is to put many children with disabilities through mainstream schools. That policy was initiated a long time ago under a Conservative government. When I had responsibility for that policy I soft pedalled it as I was never enthusiastic about it. However, the foot has now been put on the accelerator and the Government are keen on the policy. I continue to have misgivings about it. I think particularly of children with severe physical disabilities and children with profound behavioural problems which make them ungovernable and children who have what are called low incident disabilities such as blindness or deafness. I am fairly certain that those children's needs are best met in special schools whether in the non-maintained sector—Dorton House is in that sector—or in the maintained sector. I find it rather depressing that some special schools in the maintained sector are being closed. I believe that is a mistake.

I understand the advantages of inclusion. Many children benefit from inclusion but there are many children who will not benefit from it and will benefit much more from receiving the degree of support and services that are available in special schools. I realise that the Government have not set their mind completely against special schools although some of the replies we were given earlier in the year were fairly cool and distant and rather frosty. Therefore, the revised code is welcome, particularly paragraphs 8:36 and 8:37 which have already been mentioned.

We were concerned that the statement, which is the critical element in determining what should happen to a child, should be much more specific. The noble Lord on the Front Bench opposite will recall some earlier briefs on the matter which were unspecific and which told us, as it were, not to worry as the needs would be met. I am glad to see that other counsels have prevailed. I do not know whether this is the first instance of the Government moving even a few inches in the direction of parliamentary comment. That was not a common event in the previous Parliament; I hope that it will be more common in this one.

The Government have moved in that direction and have included in those two paragraphs the measures which we sought; namely, that, A statement should specify clearly the provision necessary to meet the needs of the child. It should detail appropriate provision to meet each identified need". That is a tremendous step forward. The document also states: This can only be done by a careful assessment of the pupils' difficulties and consideration of the educational setting in which they may be educated. Provision should normally be quantified (e.g. in terms of hours of provision, staffing arrangements)". The brackets were not necessary; that is a slight conditioning but I forgive that. Therefore, a statement will be provided stating, for example, that a child will need so many hours of speech therapy or so many hours of Braille instruction and the staffing arrangements—that is, presumably, how well qualified the staff are to cope with that provision. I know of no provision in the maintained sector that can provide the degree of expertise for blind children that a school such as Dorton House can.

I should also like to see in the document a reference to equipment. It is not just a question of hours of provision and staffing arrangements. Equipment for dealing with the specific needs of the blind and the deaf is costly and it changes almost yearly. For example, one can now obtain software packages that verbalise e-mails. I should think that Ministers should have that equipment, quite apart from blind people. It is a good way to access one's e-mails but it is expensive. That is just one small example. I refer to all the devices that are available on an ordinary computer "qwerty" keyboard to help blind people. Those are continually being improved.

I am not against maintained schools providing services for blind children, but the costs of that will be enormous. I do not believe that the Government appreciate the consequential costs of the policy on which they are embarked. They will now give parents a greater degree of information on school and LEA provision. That can be easily compared with the degree of expertise provided by special schools. For example, in our nursery for blind children the pupil/teacher ration is 1:2 and 1:3. For those children who suffer in addition from serious behavioural problems, the ratio is almost 1:1. Local authorities will be hard pressed to afford that kind of provision.

The noble Lord, Lord Rix, said that money is being diverted from special to general education. When a local education authority is faced with the degree of provision that is needed to deal with a small minority of pupils there will be enormous pressure not to provide that. But if an LEA is transparent, parents and children will be able to see what is being provided.

I believe that the consequential costs of this policy are enormous. Therefore, I very much support what my noble friend Lord Renton has just said. There is a continuing need for special schools in our society. I hope that the Government will do everything they possibly can to encourage them.

I received a very helpful letter from the Minister today. Our school wondered whether it could become a special school under the initiative by which I started city technology colleges. The first reply that I received was rather distant and cool. I do not know whether the Minister has made changes since she has been in office. The first reply that I had was fairly stifling, but the reply received today was rather optimistic because it stated that state-maintained special schools will be included in that programme. I believe that that is a tremendous step forward and I welcome it. I hope that the programme might also be extended to the non-maintained sector.

I am sure that the Minister will appreciate that the schools about which I am talking are not schools run for profit. They are all run by charities. They must raise an enormous amount of money. A great deal of state money goes into them through the provision of per capita grants for the children. Therefore, these are rather special cases. I hope that in a year or so the Minister will be able to say that she has extended the scheme to special schools, too. With that proviso, I certainly welcome the code tonight.

8.30 p.m.

Baroness Ashton of Upholland

My Lords, for me and, I hope, for other noble Lords, this has been a fascinating and very useful debate. I shall attempt to answer as many of the questions as I can. I apologise if I fail to answer any. If I do, I shall certainly write to noble Lords and shall continue to do so.

Perhaps I may begin by saying to the noble Lord, Lord Baker of Dorking, that I am very pleased that Dorton House has been working with the south-east SEN regional partnership to share its excellent expertise with mainstream schools. That is a very important role for our special schools. The noble Lord may know that I met the head teachers of all the schools for children with visual impairment. I had an interesting and very enjoyable day. We talked about the continuing value that the Government place on special schools.

The number of young people at special schools has remained constant. I shall look carefully at their future role to ensure that there is nothing cool and frosty about the way in which we view them. We shall also ensure that that role is open to them both for children who should be educated by them and for those within the mainstream sector.

I believe that the noble Lord, Lord Renton, made a similar point about specialist schools. As I said, we are very clear about their role. We are also concerned that children within the state sector who have special educational needs should not suffer from bullying. It is a requirement that head teachers deal with bullying and draw up measures to prevent all forms of bullying against pupils. That, of course, includes children with special educational needs.

We are concerned to ensure that teachers of children with special educational needs have appropriate qualifications. We also intend that the experience of teachers who have worked successfully with children with different special educational needs is shared to ensure that that expertise is used to the full.

I return to the subject of children with visual impairment. We hope that, alongside its other roles, the under-twos working party will be able to consider the early identification of children who have visual impairment.

I turn to the question of the number of children with special educational needs being excluded from school. The noble Baroness, Lady Darcy de Knayth, referred to my earlier comments, and I shall not repeat them. However, we are looking very carefully at investing in tackling disaffection. We want to ensure that we are able to keep children within schools. We recognise that children who are not able to stay in schools because of particular behavioural issues need to have full-time education. That is a key priority for us.

The noble Baroness also talked about the blanket statements policy and the need to consider the time that it takes us to examine complaints. I assure her that we are constantly working to sharpen up our practice so that cases are dealt with as quickly as possible. We continue to work in partnership with LEAs with a view to improving their practice. That, in particular, is the case in relation to our SEN regional partnerships and the work of the partnership unit. However, we want to be sure that we have all the evidence that we need in order to establish the facts of the matter. Sometimes that takes a little time.

The noble Lord, Lord Rix, was concerned about funds for special educational needs being directed to other purposes. As the noble Lord will know, school governing bodies must report to parents on the use of those funds and must, under Section 317, use their best endeavours to meet the needs of children. Of course, we want to ensure that funds are used specifically for those children. However, it is also true to say that people who work with such children often play a valuable role within the classroom above and beyond that. I do not believe that we want to take anything away from those people while we recognise that their function is to support the children in their care.

The noble Lord, Lord Rix, also talked about the possibility of the reference to the efficient education of other children being abused as a way of denying mainstream places to children. Concerns have been raised about that. Questions have been raised as to how the efficient education caveat within new Section 316 of the Education Act would work in practice. We believe that it would be possible only to demonstrate that the inclusion of a child with a statement was incompatible with the efficient education of others in a small number of cases. We envisage that that would occur where it could be clearly demonstrated that a child's behaviour was so challenging that the safety of other children could not be guaranteed or that other children's learning would be persistently and systematically disrupted. In such cases, in our view a mainstream place should not be provided.

The noble Lord, Lord Rix, should also be aware that the monitoring of efficient education will be carried out by HMCI—in particular, Section 316(3)(b)—both at school and LEA levels. I hope that that will provide him with some reassurance. In responding to the noble Lord, I should add that we are aware of the concerns expressed in a recent Mencap report, Don't Count Me Out. Officials have discussed these issues with Mencap and have promised to consider its views further. I look forward to hearing what has happened in relation to those discussions.

The noble Baroness, Lady Blatch, talked about the identification of children with hearing impairments. We are supporting a bank of training materials, innovative activity in the next tranche of the LEA excellence centres and support through the SEN standards fund in order to promote early intervention in relation to such children.

The noble Baroness also referred to the fact that mobility education is not included in the draft code. LEAs can make arrangements for mobility training if they wish, but we do not consider that we should make it obligatory. There needs to be good liaison with health services locally and, indeed, with voluntary and social services to look at those issues. We shall, of course, try to ensure that that happens.

Clearly I need to say a little more about parents who educate their children at home. I hope to clarify their position. The provision in Section 324(4A) of the Education Act does not place new duties on parents. The duties on parents who home educate their children are contained in Section 7 of the Act. This requires parents to ensure that their children receive efficient full-time education, suitable to age, ability, aptitude and special educational needs.

Section 324(4A) relates to LEAs' powers, allowing them not to name a particular school in a child's statement where they are satisfied that the parents have made suitable arrangements for the child's needs to be met. We need to make clear that an LEA must arrange for the provision specified in the children's statement unless the child's parents have made suitable arrangements. The LEA could assist the parents to make their arrangements by providing help in some circumstances. However, we do not suggest that parents must carry out exactly what is written within the statement. It is for the LEAs and the parents to work together to ensure that the child receives suitable provision, recognising that provision within a school is different to that provided at home. We are not keen to take away the responsibility of LEAs to ensure that children's statements are reviewed annually, that they are monitored and that we ensure that the child receives the best possible provision. It is not meant to place additional burdens on parents.

A number of noble Lords have talked about the issue of specification and quantification. We have said that we would always wish to see specification take place. I underline the word "always". Noble Lords have talked about the difficulty of interpretation. I am very conscious that we need to be clear about what we are describing. To me, the word "normally" means that in the majority of circumstances one would expect to see a statement as to quantification.

I give an example. If an LEA refers to the provision of speech therapy "as necessary", that is not properly specifying provision for speech therapy. The provision must be specific as to what is provided and it must be quantified in most circumstances.

However, I am clear that in some circumstances we need to be flexible. I do not want to suggest that, by having flexibility, we have provided a get-out clause for any LEA. The vast majority of cases are well catered for. Where there are exceptions we have ensured that there are methods for parents and LEAs to sort out, through the parent partnership services and eventually through the tribunals, the issues under dispute. We do not wish to have blanket policies. We believe that there is a need to have a little flexibility. But I put it on record that that does not mean that LEAs should do anything other than normally quantify.

If it is an unusual set of circumstances, LEAs would not quantify. Such circumstances should be agreed with all those involved.

A number of noble Lords spoke about resources. I recognise that I need to wind up this debate in order to allow other business to take place. But I am conscious that today I have announced an additional £9 million in the SEN standard funds for this coming year, making the total available for SEN £91 million, to help support training on the revised code of practice and to give direct practical support to inclusion. We have been talking through eight regional conferences with a variety of schools, LEAs, the National Children's Bureau, and the National Association for Special Educational Needs to make sure that the code, if approved by your Lordships' House, is able to be implemented, which is the most fundamental part of the matter.

I hope that I have dealt with many of the questions which noble Lords have raised. I am indebted to the noble Lords who have contributed to this debate, the organisations which have made representations, and the parents and the children who have given me their views. I firmly believe that the implementation of the revised code will improve the experience of children and young people with special educational needs and their families. I commend the draft code of practice to your Lordships.

On Question, Motion agreed to.