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Standing Committee Debates
Special Educational Needs and Disability Bill [Lords]

Special Educational Needs and Disability Bill [Lords]

Standing Committee B

Tuesday 3 April 2001


[Mr. Bill O'Brien in the Chair]

Special Educational Needs and Disability Bill [Lords]

Clause 17

Special educational needs and disability tribunal

10.30 am

Question proposed, That the clause stand part of the Bill.

Mr. Tim Boswell (Daventry): As there is not a large number of amendments for the Committee to consider—[Interruption.] The Government Whip is in some difficulty; if he cannot see the Opposition, goodness knows what he will do to his own side. I wonder if the blinds could be lowered.

As I said, there are not many amendments; I think that we may have caught the spirit of the Government's commitment not to table more amendments, about which more anon, but some interesting points need to be made. The best way to raise them is probably in short and pithy clause stand part debates.

On rereading the relevant clauses last night, it seemed to me that lessons from settled practice over the Disability Discrimination Act 1995 have been well learned. Saying this is probably a terrible hostage to fortune—certainly Ministers should not ever say it—but the provisions seem technically well-conceived. I hope that they are, because we have no ill will towards them. Indeed, we want them to work properly.

In that spirit, I wish to speak about the tribunal. About 20 years ago, I had some experience of a tribunal's operation, and also about how this place works. When I first became a Minister, I was told that as I had already sat on a tribunal and knew about such things, I could handle the clauses of the Education Act 1993 that established the tribunal, so I readily undertook to do that. However, reflecting on my experience leads me to make one or two points.

The tribunal will convert itself from a special educational needs tribunal into a tribunal that can also hear complaints made under the Disability Discrimination Act on the conduct of education in schools. That will result in more traffic. The explanatory notes helpfully touch on the fact that that is likely to lead to a requirement for further resources. It is suggested that the extra number of cases will lead to an additional cost in the first year of about £400,000, rising to £1.25 million as awareness grows. We have no objection in principle to people having rights of redress. We back the Bill, and will not complain when people go to the tribunal or to court to claim their rights. However, I should be grateful if the Minister would say a little more about the costs and about the element of conversion.

Within the framework of special educational needs, it is reasonable to ask whether the tribunal has worked, and whether the system has been more or less litigious than expected in determining the appropriate provision for the children in question. Does a child need a particular provision? Does a school need to be specified? Do a certain number of hours need to be specified?

Our most important discussion on part I was on whether the Bill needed to put the interests of children first, and whether the absence of that priority would help or promote their interests. We remain sceptical about that, but at least the debate was about education. I was a member of the agricultural land tribunal, which had a legal chairperson and two expert assessors, one from either side. When I had done the job for a while, I regularly used to say that I could not remember who had encouraged me to go on the panel, and I did not regard myself as anything other than a practitioner. One considers such matters with an experienced eye, but in a legal framework.

The tribunal will no longer cover only special educational needs cases, as it will also be a disability tribunal. The Under-Secretary of State for Education and Employment, the hon. Member for Barking (Ms Hodge), is nodding. We will come to the exercise of jurisdiction in joint claims later. I do not want to chop words or use them too loosely, but the tribunal is, in a sense, a court enforcing human rights legislation. That creates a new dynamic, as different shoulders are needed to consider such matters.

In consideration of school provision, the focus will be on the child. However, the chairman must be aware of other human rights issues, such as those involved in employment law and gender or racial prejudice. The context therefore ceases to be purely educational. That is not a difficult change, and I do not suggest that it is wrong to make it. However, it is important that the legal chairperson and the lay members of the tribunal, the appointment of whom the disability organisations will not be consulted on, have broad training.

The tribunal's volume of work is now relatively established and broadly predictable, but it may grow and become unpredictable. That work will have a different nature, as it will bring in wider considerations. I am not arguing that the tribunal is the wrong body to handle such issues, because it is not, certainly in relation to schools--we will debate further and higher education later. However, the tribunal and the Ministers who plan the system must be sensitive to the wider issues. Ministers' guidance to the tribunal and the regulations under which it operates must also have regard to those issues.

The argument on whether entitlement to speech therapy should be specified in a statement is critical to the relevant pupils and parents. It may be of interest, as a precedent, to the LEA. Such matters have been the substance of the first seven or eight years of the tribunal's work. Now there will be a wider context, and there may be major human rights questions about what is or is not functional discrimination as it affects a school. For example, although the provision is not strictly for schools, I have recently explored with the awarding bodies the offence that might be caused when questions with religious overtones are set in a public examination. They might refer to the keeping of pigs, for example, about which Muslim pupils may feel uncomfortable writing answers.

I do not want to debate those issues now—it would be out of order for me to do so. However, there are some wider implications. There is, and I do not say this derogatorily, a growing legal interest in human rights. I can even imagine persons close to the Prime Minister engaging with the special educational needs and disability tribunal in its new role in order to carry forward some great flagship case. Ministers and the tribunal must be aware of these issues, plan for them and aim to contain them. That is not impossible. Cases do not always have to go through the tribunal—parent partnerships and conciliation can be used instead. We need to go into this with our eyes open.

Mr. John Hayes (South Holland and The Deepings): I want to make a couple of points by way of amplifying or specifying some of the issues raised by my hon. Friend. I will phrase them, in as friendly a way as possible, as questions to the Minister. Although my hon. Friend is right that these are not principally matters of cost, we need some indication of the Government's estimates of the volume of cases and the resultant cost. It is hard to come to a conclusion about that, but we need a rough approximation of the Government's estimates.

The second issue concerns representation. We are all anxious to maintain the informality of the tribunals. That issue was touched on in the other place, when these matters were debated there. As my hon. Friend has already said, the informal nature of the tribunal is important if we are to avoid disadvantaging parents and children. It is important to strike a balance between informality and proper representation. Those on one side in a hearing could be disadvantaged if they are not familiar with such proceedings and feel bamboozled or intimidated.

Mr. Boswell: My hon. Friend is amplifying my gist very well. Does he agree that whereas tribunals have generally been seen over the years as informal forums for the resolution of disputes, once lawyers get involved in the process, a kind of arms race emerges? Cases can involve a learned counsel, leading counsel and considerations can become protracted, at huge expense. I know from my own experience that that is a matter of some concern.

Mr. Hayes: Indeed, and that is what I am moving on to. The atmosphere created in these bodies, which will have legal force, is critical if we are to give the parents and children who come before them the best possible opportunity to make their case. The necessary balance between informality and proper representation was debated at some length in the other place, and I am sure that the Minister will want to comment on it.

The third issue is the role of the child in such circumstances. That could be a difficult matter. Lord Ashley of Stoke referred to it in the debate in the other place. He made it clear that the tribunal represented an opportunity for children to put their own perspective. However, the child would need to be assisted in that, and the environment of the tribunal should allow a child to put his or her case, which may be different from that of the parents. The child's view on a given issue might differ from that of the parents. We must ensure that the tribunal is not alien to the expression of such views.

I am mindful of the words of Baroness Blackstone in the other place. She said:

    ``Even in the informal environment of the tribunal an unassisted child is likely to be at a disadvantage which may lead to increased use of representation generally, affecting in turn the informality of those proceedings.''—[Official Report, House of Lords, 6 February 2001; Vol. 621, c. 240.]

Given the tribunal's multifaceted brief—it will be involved in issues of disability discrimination and of a narrowly educational nature—those different levels of representation may exacerbate the problem of representation, parental involvement and children's involvement in what we hope will be a positive outcome. This is not an issue of principle; we want to give the tribunals and the Bill a fair wind. However, these details require clarification, and I look to the Minister to provide it.

10.45 am


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