Special Educational Needs and Disability Bill [Lords]

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Jacqui Smith: I assure the hon. Gentleman that I shall discuss resources in a moment.

I was rudely interrupted—

Mr. Hayes: Not rudely.

Jacqui Smith: I was interrupted when pointing out to the hon. Member for Tewkesbury that section 14 of the 1996 Act gives him some reassurance about the need for local education authorities to secure special educational provision in the authority.

Mr. Laurence Robertson (Tewkesbury): May I ask an innocent question? How can the Minister ensure that the council will not close all special schools in its area? She has said several times that she does not have the power to prevent the closure of special schools. I dispute the contention that she has no hand in that unless she appoints an adjudicator. Will she explain how that will work in Gloucestershire, where the council seems determined to close such schools?

Jacqui Smith: I was going to discuss that later. The local organisation of schools is an issue for local decision. Local reorganisation of schools will always happen. In my constituency, 10 schools are being closed as part of a reorganisation. I understand the pain that that causes, but I do not believe that our system is stuck in concrete and incapable of change.

I can tell the hon. Member for Tewkesbury that Gloucestershire has a responsibility continually to keep in mind its provision for children with special educational needs. It has chosen to review the provision, and I understand that the review will continue for some time as the authority carries out extensive consultation with local schools and parents. Any proposals will have to be put to the school organisation committee, on which there is a representative of a special school in Gloucestershire. I believe that that representative is a parent governor at the Alderman Knight school, about which the hon. Gentleman has been especially vocal. If the school organisation committee fails to come to a unanimous decision, the decision will go to an adjudicator.

The hon. Gentleman continues to suggest that Ministers have some influence over the independent adjudicator. I can only reiterate that that is not the case. As my hon. Friend the Member for Colne Valley said, local Members of Parliament must undertake their constituency responsibilities and make the arguments at a local level. [Interruption.] The hon. Gentleman says from a sedentary position that I did not answer his question. He said that I could influence the independent adjudicator, and I have made my position clear on that point.

5.15 pm

Mr. Robertson: The Minister gave a detailed explanation of how local decision-making works. However, I want to know how the Bill provides that there will be special schools in Gloucestershire?

Jacqui Smith: The Bill neither provides that nor makes it less likely. The local education authority must ensure adequate provision for special educational needs in Gloucestershire by acting in line with the law.

Mr. Nick St. Aubyn (Guildford): The Minister mentioned safeguards elsewhere, but I hope that she will be more specific about those safeguards in respect of children's needs. This point ties in directly with my hon. Friend's point. If the legislation moves away from that focus on children's needs, he fears—and I share his fear—that the dynamic behind providing separate special schools will be undermined. That is why the matter is important.

I refer back to section 316 of the 1996 Act, which refers to the child

``receiving the special educational provision which his learning difficulty calls for''.

The lack of that one line is worrying, as it seems to mark a change in emphasis in the legislation.

Jacqui Smith: I was in the process of outlining where the safeguards lie for the child's best interests when I was tempted down various different alleys by Opposition Members. Wanting to oblige them, I disappeared down those alleys, but I will now return to the safeguards that exist not only in the legislation but in other places.

Section 317 of the 1996 Act requires governors of all maintained schools to use their best endeavours to ensure that any pupil who has special educational needs receives the provision that his or her learning difficulty calls for. Section 324 provides for statements of special educational needs to be maintained and made by local education authorities. Schedule 27 ensures that the child's individual needs are taken into account in deciding whether to name a parent's choice of a maintained school in a statement.

Furthermore, the special educational needs code of practice and the statementing process ensure that children's needs are identified and that appropriate action is taken to enable them to achieve their potential. Statements specify the provision that should be made, and local education authorities are under a duty to arrange it.

On the point raised by my hon. Friend the Member for Bridgend (Mr. Griffiths) and the hon. Member for Oxford, West and Abingdon about the voice of the child, I can assure the Committee that we consider that very important. We have made it clear in the revised code of practice that we will expect local education authorities to take account of the ascertainable views and wishes of an individual child, not only in terms of assessment and provision—including the school or type of school—but in several ways throughout their education, from the early years.

Mr. Boswell: I am grateful to the Minister for giving way, though she has perhaps done so too promptly. Will she comment on a situation in which two natural parents, who may no longer be in a relationship, have differing views about the welfare of the child, so that the parental advice is split? I realise that such an issue would be sensitive, but we should have some steer as to what a tribunal or local education authority should do if such representations are made.

Jacqui Smith: Clearly, that would be a difficult situation. I should have thought that the parent partnership services that are proposed later in the Bill would have an important role to play in such a situation by facilitating agreement between parents. The local education authority would have to consider the views of both parents.

Issues have been raised about a conflict between the wishes of the child and the role of parents. LEAs will take account of the views of a child, and the revised code of practice will make that need more explicit. We shall provide guidance to enable that. However, in the event of an impasse, parents' views will take precedence over the views of the child, for some of the reasons outlined by the hon. Member for Oxford, West and Abingdon. Parents have a legal duty to ensure that their child receives education, and they may express a preference for a maintained school.

Mr. Hayes: The Minister is being typically generous in giving way. I do not want to tempt her in the way that she was tempted earlier.

The Minister has, very honestly, made it clear that in the case of a parental dispute, the desires and wishes of both parents will be taken into account. If our amendment were accepted and the specific educational needs of the child were paramount, would that provide those who are taking the views into account with a touchstone for their final decision? I am referring to tribunals and, if the matter went further, to the courts. Would it not be helpful, for such deliberations, to include the amendment in the Bill?

Jacqui Smith: I have pointed out that the best interests of a child are at the centre of the process in a range of ways. Our argument is not that the best interests of the child are not important, but that we believe that they are safeguarded in the range of ways that have been outlined.

We have agreed that Her Majesty's chief inspector of schools will monitor the new inclusion framework, which will help to prevent abuses and ensure that the needs of the child are safeguarded. Additionally, we will issue statutory guidance, about which we will consult widely, on the practical operation of the new framework. The guidance will set out clearly the safeguards that I have highlighted.

Mr. Win Griffiths (Bridgend): My hon. Friend has mentioned the guidance, and she has stated that an amended version of the code of practice will be published at some time in the future. Will she be more specific about the timing? Although the Bill deals satisfactorily with the concerns that it addresses, the guidance and the code of practice will be vital to how it works?

Jacqui Smith: I agree that both documents are important, as they will enable us to put flesh on the bones of what the legislation is intended to achieve.However, the guidance and the code of practice are influenced by the passage of the Bill. We have carried out consultation on the revised code of practice, and we propose to introduce it for approval by Parliament soon after the Bill receives Royal Assent. We have also begun to work on the inclusion guidance, and we are discussing its contents with organisations that are concerned about the matter.

Dr. Harris: I have listened carefully to the hon. Lady's detailed and thoughtful response. With regard to the code of practice, she mentioned that the views of the child would be sought, and I thought she was about to explain that point, when she was interrupted. I would be grateful if she would clarify that for the record, so that her reference cannot be considered merely as a token reference. What will be the status of the views of the child in the process?

Jacqui Smith: I thought that I had made that clear. The revised code of practice is, of course, statutory, and the local education authority should emphasise the need to ascertain the wishes of the child, not only in the statementing process, but with reference to the range of provisions to which he or she might be subject. That is how to safeguard the best interests of the child.

We are concerned about new clause 1 because it seeks to reinstate, through the back door, provisions that are similar in their general effect to the first caveat of section 316 of the 1996 Act. Committee members are aware that the Government decided to drop the caveat because we believed that it had been abused. It has often been used to block inclusion, rather than to protect the needs of the child. That view is held by the people who responded to our consultation and by many of the lobby groups that have contacted us.

The hon. Member for Daventry referred to the example that I mentioned on Second Reading, and I shall now recount another. In this case, a child with Down's syndrome had been successfully placed in mainstream classes since reception. In year eight, the child's family relocated to a different area where the local education authority stated that a mainstream school could not cater for the child's needs, and a place was offered only after the parents had lodged an appeal. That was a grave misuse of the caveat, and the story further supports our argument that it has often been used against a child's interests.

The hon. Gentleman suggested that my previous example implied that the system was working well, because the tribunal had sorted out the problem: when the parents appealed, a mainstream place was offered. However, parents should not have to fight for their child's inclusion. It is not good enough merely to say that the tribunal will sort matters out. When parents have to fight for what they believe to be right for their children, it often results, at least, in prolonged worry for the entire family, and the child sometimes does not receive the education provision that he or she needs for a period.

 

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Prepared 27 March 2001