Special Educational Needs and Disability Bill [Lords]

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Mr. Hayes: I hope that my hon. Friend will flesh out questions of revenue spending in respect of the acquisition of equipment. Much has, rightly, been made of the valuable role that can be played by communications equipment and information technology as a bridge to learning for people with special educational needs. However, that has a significant impact on on-going expenditure--it should be seen as a long-term investment. Write-off, replacement and upgrades are critical, as is the whole business of on-going revenue expenditure. There must be a notional view in Government about what that expenditure will be nationally.

Mr. Boswell: I hope that the Minister will respond to my hon. Friend's point tonight or, perhaps, in another context. We flagged it up a long time ago by saying that there are always revenue consequences of capital spend, and that even the best and most modern technology needs to be upgraded and altered from time to time.

We do not make those points to cavil at the wish to improve provision for special education; nor would local authorities or the Local Government Association. However, we should be aware that the exercise is not cost-free and cannot be easily swept away alongside other pressing priorities. The Government need to reflect responsibly on that. My second point is on the provision of special schools. In a sense the Minister is right. Nothing in the Bill threatens them, and there is no provision to close them—

The Chairman: Order. I draw the hon. Gentleman's attention to the clause. We are considering mainstream education. I have allowed a wide range of discussion so that the Bill may be put in proper perspective, but I must ask the hon. Gentleman to comment on mainstream education.

Mr. Boswell: And rightly so, Mr. O'Brien. I was merely trying to summarise the debate that you have allowed, particularly as regards the concern of my hon. Friend the Member for Tewkesbury that special schools might be taken away. We shall have occasion to return to this, but perhaps I can reiterate a point that was made on Second Reading. Our concern is not that the provisions remove special schools, but that if local authorities are minded to remove special schools from their portfolio, there is nothing to prevent them from doing so. Our amendment about the paramountcy of the child aims to safeguard that provision. What concerns us is not that it is done through the front door, but that it might be done through the back door.

My third point relates to the caveat. I understand and respect the views of the Special Educational Consortium and of individual organisations that have lobbied us and made representations. There is a wish not to subvert inclusion, where it is properly done, and not to have caveats that create a problem by providing something that, however unexceptionable it is in principle, might have a perverse effect. With the greatest respect to the Minister, although she mentioned some of the cases of dysfunction that might arise in local authority practice, which are now remediated only by the tribunal, she did not explain how that dysfunction will be removed under the new arrangements. That problem does not arise from the caveat. Frankly, the Bill will work with good will and with competent players. It will not work as well if the players are not competent or, in certain cases, if they are not well disposed towards the interests of the individual child or collectively to children with special educational needs.

We are trying to put children first. I know that the Government subscribe to the same principle, whether through the proxy of the parents on behalf of the children or through the expressed wishes of the child. We want that. More than anything else, we want an audit trail. Let us suppose that a local authority has an agenda that is not about putting children first, but is driven by bean counting, as I described it, or accountancy, as my hon. Friend the Member for South Holland and The Deepings more politely put it. An authority may subscribe to an ideology that is concerned not with whether it helps children, but about whether they are put into mainstream education, even if that is not the best way in which to deal with them. It may have another agenda, such as taking money from education and putting it into another area. All such examples fail the needs of sensitive children.

We all agree that we want children to come first. I mean no disrespect to the Minister, but we do not consider that that point has been reached. We are not anxious to subvert or scupper the Bill with which we fundamentally agree, but we consider that one area is not absolutely right. Although we have approached the matter in several ways both here and in another place, we may not, on reflection, have put it into the right context.

I advise my hon. Friends to join me in voting for the amendment to register our continuing concern, but I can discern the germ of a possible solution, which the Minister may like to think about. Whether or not she wants to share her thoughts is up to her. She referred to sections 495 to 497 of the Education Act 1996, which cover the ancillary functions of the Secretary of State. Those provisions may also apply to the National Assembly for Wales, since it is the executive body for Wales, and they concern the ability of the Secretary of State to intervene if something is going wrong, which is along the lines of our amendment.

Section 496 refers to bodies that have acted or propose to act unreasonably with respect to the exercise of any power under the Act. In a sense, that is reflected in our amendment. We do not want a local education authority to act unreasonably in relation to children with special educational needs. The right action is to put the children first. We have no argument with that. We are concerned not with inclusion or exclusion, but with what is best for the children. That may be more difficult to secure in the non-maintained sector but, for whatever reason, a local authority, an organisation or an individual education provider in the maintained sector may act badly and not put forward the interests of the children.

I am not a lawyer, so I must not lecture the Minister on law, but I take an interest in such matters, and I understand that there is a general presumption that an LEA will behave properly. There is also a general presumption in relation to a maintained school. When the hon. Lady has recovered from the shock of, perhaps, resisting our amendment, she might reflect on whether there is a germ of her being able to say that it would be an unreasonable action to deny a special educational needs child his rights. There might be a way of producing a general declaration that is disjoined from the argument about mainstream and non-mainstream or maintained and non-maintained.

That might act as a litmus test, which the tribunal, and, subsequently, if necessary, the Secretary of State, could consider. The tribunal would say, basically, ``Did you do your job? Did you put children first?'' Such a test might allow us to take a trick—based on the consensus that already exists in the Committee—so that special educational needs would be supported and provision improved through the Bill. We might end up not with a disagreement superimposed on agreement but a final agreement, with which we could dispatch the Bill. Otherwise, on this important matter, we have a measure of disagreement, which we shall be anxious to register in a moment.

Jacqui Smith: Would the hon. Gentleman be reassured, given the direction of his remarks, if he knew that the Secretary of State has used the powers under discussion to direct local education authorities in respect of provision for individual children. He has also done so in respect of a local education authority carrying out the wider function of providing enough school places. I certainly regard that as an appropriate use for those sections.

Mr. Boswell: I am grateful to the Minister. I think that we are feeling our way towards our destination, although I am not sure whether we have reached it yet. I am sure that she and her officials will provide the citation later, but I will need to reflect on what she has said. Given that the Committee agrees on so much, I cannot help feeling that we might be able to take the final step and achieve a system that stipulates, whether with reference to other legislation—which I always hate, because it is difficult—or in the Bill, that LEAs and schools must do right by special educational needs children. It must say to them, ``The Secretary of State, the nation and the tribunal are watching you. If you are not doing right, you are for it!'' That is our concern. We do not want to remove the importance of consensus or partnership but to say that a sanction exists that will enforce the process as if it were—to use a phrase that I used in my introductory remarks—a paramount court of appeal or final point of reference on whether a thing was done properly.

We must reflect on those matters. The hon. Lady may be able to help us at a later stage, if briefly, and we may make progress. The debate has been valuable in flagging up remaining concerns, moving some way towards reaching agreement on them and exploring possible remedies in order to reach complete agreement. I am minded to persist with the amendment, but perhaps we should learn the lessons of the debate and consider how to take the matter further.

Dr. Harris: I had not intended to speak again, but I mentioned in an intervention that I wanted some clarification. The Minister's reply, for which we are genuinely grateful, left unanswered significant questions about resources. That is linked to the use of the phrase ``efficient education'', which has resource implications. Earlier, I asked the Minister to explain why ``effective'' was not used. It is a more accurate way of describing provision of education to other children, and providing it safely. Safety is an issue in relation to children who have an educational or behavioural disturbance, whom it might not be possible to maintain in a mainstream school if their behaviour put the safety of other children at risk. Now is the time to seek that explanation, because I fear that little time will be allowed for the clause stand part debate.

6.15 pm

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