Special Educational Needs and Disability Bill [Lords]

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Mr. Boswell: Before the Minister responds, I want to raise a related issue regarding redress. The explanatory note helpfully says that the expanded tribunal will be able to set rigorous deadlines when directing action by schools and LEAs. If those deadlines are not met, the parent can ask the Secretary of State to make a direction to require compliance. I understand that, and it is helpful. However, the issue is not about deadlines, but about the substance of the response made by the school or the LEA. The argument is not about whether something has been done by the deadline, but whether it is consistent with the order made by the tribunal. Perhaps the action taken made a monkey of the tribunal, or was not in the spirit of its findings, which led to a complaint. I am not sure how often that has happened, or how many cases have been taken as far as the Secretary of State, but it would be useful to have the Minister's perspective on that more general issue.

Mr. Andrew George (St. Ives): There has been an important debate in the other place on compensation. I am pleased that no amendments have attempted to delete lines 30 and 31 of page 17, which make up proposed new section 281(4)(b) of the Disability Discrimination Act 1995. It has become clear from the debate that, although financial compensation could be attractive, removal of the proposed new section might have the negative effect of creating a quasi-legal process and altering the motivation behind claims for discrimination. The other place considered including financial compensation, but on reflection it is right that it should not be included.

It is not appropriate for compensation to be related to retribution. The outcome of the process should be a learning experience for all. I hope that the Minister will clarify and amplify the Government's thinking on educational remedy. I am concerned, as are others, that an aspect of educational remedy may be additional teaching, which may be seen in the school as a punishment for failures in the pupil's past. These matters should be treated with sensitivity, especially when discrimination can be proven to have occurred over a long period. In such cases, a long period of educational remedy will be needed.

I want the Minister to elaborate on the explanatory notes, so that we are fully aware of what will and will not be included in the educational remedy. To what extent will the school and LEA be responsible for fulfilling the obligations?

Ms Hodge: I was grateful for that debate, as it gave us the chance to air some issues that had already been heard in the other place, but deserved another brief airing. The argument made by the hon. Member for South Holland and The Deepings was constructive and persuasive, but I hope that he agrees that provision for what he desires is already in the legislation, so the amendment is not necessary.

All three Opposition Members who spoke mentioned financial compensation. The Under-Secretary of State for Education and Employment, my hon. Friend the Member for Redditch (Jacqui Smith), and I have thought about the issue long and hard. However we played it, we were bound to end up with the possibility of disability discrimination issues being dealt with differently from issues of special educational need or gender and sex discrimination. In either case, that would have created a conflict. There was no way to square that circle. One of the ambitions had to be met, and that would inevitably lead to a contradiction with other legislation.

In the end, we decided to ensure that there must be an educational remedy. Therefore, we had to take a coherent approach to education legislation, and to provide for the rights of children under special educational needs provision when framing the disability discrimination provision and dealing with the compensation issue. I agree with the remarks of the hon. Member for St. Ives (Mr. George). The important consideration, which underpinned our approach, was making the child's learning and development central to our action. The educational remedy is therefore the most appropriate.

We engaged in extensive discussions, not only with the all-party group on disablement, but with a range of interest groups. I was persuaded—as was the Under-Secretary, my hon. Friend the Member for Redditch—by my dealings with those closest to the issue, such as the Council for Disabled Children and other members of the national advisory group on special educational needs. I think that, on balance, they agreed with us at the end of the process. None of us found the decision easy, but I think that we made the right one.

The arguments that affected our decision included the fact that if financial compensation were provided for in the Bill, the entire focus of the tribunal system would shift towards that and away from educational remedies. That would disbenefit the child in relation to educational opportunity and experience. The informal and friendly atmosphere that is the strength of the special educational needs tribunal would be lost if we switched to financial compensation. We would end up with a culture that was more strongly litigious, more formal and perhaps more adversarial and acrimonious. Changing the nature of the tribunal might put off from pursuing their case parents who felt that their child had suffered discrimination on grounds of disability or special educational need. The greater the informality, the greater the likelihood of less confident parents feeling able to participate in the tribunal.

Mr. Boswell: I do not disagree with the Minister. I think that she is essentially warning off any suggestion that the tribunal should provide the opportunity of an outing for gold-diggers. That would be wrong.

Ms Hodge: Gold-diggers include lawyers, and although I am married to one I am as anxious as others to keep them out of this arena in the interests of children and their education.

If the focus were on the financial contribution, the root cause of the discrimination may not be tackled. There may be a tendency to think that if a payment of £100, £200 or £2,000 is made, there is no need to bother to tackle the institutional issue that has led to one instance of discrimination and could lead to others. That was another strong argument that informed our consideration of the matter, and led to our decision. That does not mean that there will not be financial costs to schools and LEAs from involvement in tribunals and funding educational remedies. Remedies cost money. We would prefer money to be spent on educational remedies, rather than on financial compensation for individuals.

Mr. Hayes: I understand that argument, which is a good one. However, it was anticipated to some degree by Lord Ashley, in the other place. He talked about the tribunal being more like a small claims court than a gold-diggers' affair—perhaps we are talking about bronze-diggers. His said that we could ensure that by limiting the amount of money involved by regulation. I do not necessarily agree with that, but I think that it needs re-airing or re-amplifying, as the Minister described it.

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Ms Hodge: I read that argument, too. However, my view is that when financial compensation is involved, a more litigious atmosphere is likely. Lawyers can currently participate in SEN tribunals; I believe that that happens in one in 20 such tribunals. In our judgment, there would be a tendency for that to increase. In a few cases, an educational remedy will be difficult. However, even in those cases some such remedy will be possible.

I should like to give the Committee some examples by way of illustration. It has been argued that once a child has been prevented from going on a school trip, nothing can be done. However, the child could be included in the trip of another year group by way of educational remedy. If a child were prevented from undertaking a public examination because insufficient adjustments had been made to enable that child to do so in an appropriate manner, that could be remedied. Although some time would be lost, the child could be given the opportunity to sit the examination once the appropriate adjustments had been made. If an act of discrimination occurs, it is difficult to rectify it 100 per cent. However, in most cases it is not impossible to find some educational remedy.

Mr. Boswell: Is not the difficulty with cases in which damage has been caused before the tribunal has considered the case? There might have been two or three years of inappropriate provision arising from the dereliction of either a school or an LEA. No money can put that right, and no educational provision can rescue that situation, although it might ameliorate it. What is required is an apology and a determination—a real determination, not just lip service—to do better by children when the circumstance occurs again.

Ms Hodge: That allows me neatly to move on to my next point on the two amendments. Anything that we do in this area deals with the future, not the past, so there will always be a sense of it not being the most perfect outcome for the child. We are trying to identify ever earlier both special needs and disability, and I hope that we are improving our ability to respond to a child's future needs more quickly than we have done in the past.

I agree entirely that what relatives often want is for people to say that they are sorry. Perhaps it is a good lesson for us as Members of Parliament—

Mr. Boswell: Some more than others.

Ms Hodge: I dare not pursue that argument, as I think I would find more instances among Conservative Members--particularly from their time in government--than I would among my hon. Friends. However, we all need to learn the lesson that the arrogance of power and position should not prevent us from recognising when things have gone wrong and from saying that we are sorry. I hope that I can convince Opposition Members that the Bill provides for that. We have enshrined in clause 18 —proposed new section 28I(3)(b) of the 1995 Act—the provision that on a successful claim for disability discrimination, the tribunal can make any order that it considers reasonable. The Bill also provides that, in deciding on the type of order that it will make, the tribunal may grant a remedy that will negate or reduce the adverse effect of discrimination. I hope that I have reassured Opposition Members that the Bill gives the tribunal wide powers to order an appropriate education remedy.

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