Special Educational Needs and Disability Bill [Lords]

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Mr. Hayes: I do not want to cause the Minister further difficulties, or even the Government Whip more chagrin, but the amendment states ``For each such child''. If she reads the amendment in relation to the Bill, she will see that there is no suggestion of a conflict such as she describes in respect of other children, because ``each such child''—we are talking about children with special educational needs—surely means that the paramount nature of the need will relate to that child's education, rather than to the broader matters that she is introducing.

Jacqui Smith: It is far from clear that that is the case. In fact, we see clear difficulties such as those that I have outlined.

Mr. Boswell: Is the Minister arguing that there is a tension surrounding the importance that should be attached to the interests of the individual child which is resolved by considering it alongside the provision of efficient education for other children? Is she arguing that if that caveat were not retained, it would be impossible to see where the boundary should be drawn and, to go back to my reference to section 9 of the Education Act 1996, to see where any unreasonable cost or other use of resources was involved? Is that her argument?

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Jacqui Smith: That suggestion is flawed in many ways. It raises the question of what happens if the needs of two separate children are paramount and whether the needs of an individual child should be paramount over the needs of other children. The amendment is deeply flawed. The hon. Gentleman has made it clear that the amendment refers to the Secretary of State, but how could any Secretary of State oversee each individual child's education to ensure that his or her needs were paramount? That is simply unworkable.

Several hon. Members have raised the issue of local authorities who, they believe, are not fulfilling their functions. The hon. Member for Guildford mentioned Ofsted reports of local education authorities. Of course, we are able to analyse the competence of LEAs in respect of special educational needs because this Government introduced Ofsted inspection of LEAs. That has enabled us to see the differences in provision. With 150 LEAs, variations in performance are inevitable. Local flexibility is important, but a greater consistency of approach is needed. Our regional partnerships will promote greater consistency, as will the proposed code of practice.

We also intend to strengthen the requirements on LEAs to make clear their strategies for special educational needs through changes to the SEN information regulations. That will require them to publish their SEN policies and detailed arrangements for what schools might provide from their budgets under school-based provision. We will also bring together and emphasise the strategic roles and responsibilities of LEAs and schools for special educational needs to aid better monitoring and accountability.

Before the hon. Member for Guildford jumps up, I will reply to his question about the amount spent on disputes. It would be difficult to define a dispute and to collect data on that, but I agree that appeals to the special educational needs tribunal can be costly and waste important educational time. That is why we are placing a duty on LEAs to set up informal arrangements to prevent and resolve the disputes that we will be discussing under clause 3, but I can give the hon. Gentleman some reassurance by saying that the special educational needs tribunal's annual report for 1999-2000 revealed that, after years of growth, the number of appeals now shows signs of stabilising. The tribunal's president was able to report that, for the first time, the number of appeals registered showed no material increase over the previous year.

Mr. St. Aubyn: The Minister's predecessor, now the Minister for School Standards, held out great promise in the first Session of this Parliament that the number and cost of appeals would go down, which would enable more money to be spent on provision for special educational needs. The Minister seems to be saying that the current system is finally bedding down, but she is now about to move the goalposts. Will that not create more grounds for disputes and appeals in future?

Jacqui Smith: We are straying slightly into areas covered by later clauses, but the proposals that will become statutory under this legislation, which are already operating in many LEAs to resolve disputes, have led to the increase in appeals stabilising. I reassure hon. Members with concerns about local authorities that the Secretary of State already has powers under sections 496, 497 and 497A of the Education Act 1996 to intervene where LEAs or maintained schools are acting unreasonably or failing to fulfil a statutory duty, or in the case of LEAs failing to perform their functions to an adequate standard.

I must point out another problem with the amendment: it appears to seek to extend the powers of the Secretary of State to the non-maintained sector. That is the effect of its wording. Is that really what the Opposition are seeking? What additional practical and workable arrangements could be put in place that would not unduly limit local autonomy or undermine the special status that non-maintained and independent schools cherish?

One technical flaw of amendment No. 1, which makes it impossible to accept, is that it fails to take into account the fact that although the Secretary of State has overall responsibility for education in England, the National Assembly for Wales is now responsible for education in the Principality. Presumably, the amendment is intended to provide for the same duty in Wales as in England. However, with no mention being made of the National Assembly for Wales, the amendment is unacceptable. I hope that on that basis the hon. Member for Daventry feels able to withdraw it and that he will not press new clause 1.

Amendment No. 2 seeks to delete proposed new section 316(3)(b). That paragraph provides protection from the small minority of children whose inclusion would be incompatible with the efficient education of others. The amendment, as I think I pointed out in my intervention on the hon. Member for South Holland and The Deepings, somewhat contradicts the Opposition's arguments in support of amendment No. 1—that the needs of children must be safeguarded. The effect of the amendment would be to secure an absolute right to a mainstream place, fettered only by parental choice. That would mean that no consideration whatever could be given to the impact that a child's inclusion would have on the learning and safety of others. Is that really what the Opposition seek to achieve? We believe that the impact on others must be considered.

Mr. Boswell: The Minister is reading strenuously from a brief. She will recall that, at an early stage in the Committee's proceedings, I said that this was a probing amendment, designed to find out what the Government thought about the matter. She is telling us what the Government think, obliquely. However she need not hang such concerns round the neck of the Opposition.

Jacqui Smith: It is my responsibility to point out the practical realities of accepting the amendment. What parents want is important, but the amendment would make parents the sole arbiters. Where parents want a mainstream place for their child, the education service should do everything possible to provide one. Equally, where parents want more specialist provision, their wishes should be considered.

However, the needs of individual children must be balanced with the need to safeguard the interests of all children. If we accepted the amendment, it could mean that if the parents of a child who had abused another child wanted a mainstream place for their child, it would have to be provided. If the parents of a child who had demonstrated severely challenging behaviour, and had regularly attacked teachers and children, wanted a mainstream place, it would have to be provided. I do not think that that would be in anyone's interests, least of all those of the child with special educational needs.

I have already dealt with whether the efficient education caveat could be used by local authorities indiscriminately to exclude children from a mainstream place. Local education authorities have a responsibility to show that they were unable to take any reasonable steps to overcome the incompatibility between a child with special needs and a mainstream place. Given the assurance that HMCI will monitor the effect of clause 1, I hope that the hon. Member for Daventry will withdraw the amendment.

Mr. Boswell: We have had a long and constructive debate. I spoke at length this morning, and my hon. Friends spoke at lesser length but with considerable passion. I assure the Committee that I am sensitive to the need to make progress.

Dr. Harris: I do not want to impede the hon. Gentleman's wish to make progress, but the Minister caught me by surprise with that quick end to her speech. I thought that she might have dealt with what I said about amendment No. 2, and wonder whether the hon. Gentleman might invite her to say why subsection (3)(b), which amendment No. 2 seeks to remove, uses the word ``efficient'', not ``effective''?

Mr. Boswell: The hon. Gentleman is helpful. The Minister may like to respond, but if she does not feel happy about doing so tonight, she may wish to do so in correspondence. Given the exigencies of time, she will have to be quick about it, but we would be happy either way.

The hon. Gentleman's intervention leads me to respond to his gentle chiding of me some hours ago. He pointed out a degree of waver in the various terms that I had used. I realise that the needs of the child, the wishes of the child and the wishes of the parents as proxy for the child are slippery concepts. Important distinctions must be made, and I acknowledge that in the hands of lawyers, they are often crucial.

I shall pick out specific comments made in the debate. I enjoyed the contribution of the hon. Member for High Peak, and was pleased to hear a voice from the Government Benches speaking up for special education when it was appropriate. He said that some excellent special schools are keyed into the overall system, which was worth saying. He spoke about our attitude to local education authorities. We have consistently made it clear in our proposals on free schools that local authorities would have a continuing role in order to secure provision, but not necessarily to provide it. However, we are well aware of the importance of statementing and other provisions in that extremely sensitive area.

It would be fair to say that the Minister made a good fist of responding to some of the complex and serious issues that were raised, about which we feel strongly. She was good, but not quite good enough to tempt me to withdraw the amendment.

I shall mention the positive aspects of the debate. We welcome the emphasis on partnership and dispute resolution, which we shall discuss under later clauses, albeit not at such length. We also welcome Ofsted's involvement as referee. The Minister said that we do not yet have the final SEN code and guidance, but we understand that further substantial documents, which we have seen in draft, will form part of the custom and practice of the tribunal. We also understand—I shall return to this point—that clause 1, and any amendment thereto, does not stand on its own; it is part of the provision's general context.

We can give the Minister a reasonably good report. She indulged in a little electioneering, but it was nothing out of the way. It is not for me to speculate whether it was appropriate. She showed a slight touch of what I might call the schoolmarm on amendment No. 2 in wondering whether we were seeking to subvert the cause of efficient education—or, as the hon. Member for Oxford, West and Abingdon would have it, effective education. I did that to provoke the hon. Lady, and she then gave us her understanding of what was involved. I am sensitive to those issues; they are keyed in on provisions about unreasonable expense. Authorities do the best that they can, some more effectively than others.

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We are still concerned about a number of points. My hon. Friend the Member for Guildford and others mentioned resources. This will not be a cheap enterprise. We know something about the likely additional capital spend on the schools access initiative, which we welcome. Although the Minister is right to say that there will be a revenue saving in certain cases, it is likely that there will be a substantial current increase across the piece. We have had no estimate from Government as to the overall effect. We have heard some talk about the standards fund—remember that anything that goes down that route is denied to local education authorities as part of their spending under the revenue support grant and their overall education budgets. That does not look good, even on the electioneering side, when we consider total spend per pupil, but I do not want to go on about that.

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