Special Educational Needs and Disability Bill [Lords]

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Mr. Boswell: If the local authority or the school were to regard a tribunal order as unreasonable or impracticable, what redress would that authority or body have? Could it challenge the order? Would it have to go to the High Court?

Ms Hodge: The tribunal order must be specific. The school will have to take action. If not, the Secretary of State will direct it to do so, as he has done in the past. Of course, the school or the LEA would be able to appeal to the High Court if it were felt that the order was inappropriate or wrong.

In considering specific cases, the tribunal has the power to order a school or an authority to change its policy—for example, on bullying. If a school has been found to discriminate against a child over bullying, the tribunal can instruct the school to change not only its behaviour towards that child but its wider policy on bullying. The tribunal can also order the discriminator to apologise to the child. Amendment No. 19, which inserts an express power to that effect, is therefore unnecessary.

Amendment No. 20 raises the question of whether the tribunal should have the power to invite LEAs and schools to reconsider their procedures for dealing with matters of wider application that may emerge during the hearing of a case. We resist the amendment on a number of grounds. First, it does not place a duty on a school or LEA to comply. Secondly, we do not want the tribunal to be diverted from focusing on the needs and circumstances of the child. Thirdly, nothing in the Bill prevents the tribunal from recording the wider issues in its written decision, but it is not appropriate to give the tribunal that specific power. However, several other mechanisms are in place to ensure that the wider implications of a case are taken on board.

First, schools and LEAs have an anticipatory duty to ensure that their policies and practices do not discriminate against children. It would be a rather short-sighted school or LEA that did not have proper regard to that when considering the wider implications of a case that was being considered by a tribunal. If they failed to do so, the LEA or school would be open to further successful claims of discrimination.

Secondly, if the school or LEA refuse to have regard to the wider implications of a specific case, the DRC has the power to investigate the LEA or school and to seek an injunction—or, in Scotland, an interdict. The DRC can seek an injunction against an education provider that persistently discriminates, if it believes that without it the provider would continue to commit further unlawful acts. That would apply also to a provider against whom a non-discrimination notice had become final in the previous five years. The Secretary of State has the power to intervene, as alluded to by the hon. Member for Daventry; he has done so in the past, although not frequently.

The Bill imposes an express duty on the school and the LEA to implement their plans and strategies on disability and discrimination against children in their schools. There are other ways of monitoring whether schools are complying with the legislation. For example, the schools access initiative will be vetted, and if it is found that schools are not complying with their duties, the Secretary of State will be able to deal with it.

Mr. Boswell: One of the by-products of the recent study on the schools access initiative was the discovery that it was only partially taken up, according to whether schools or LEAs were aware of it. Will the Minister ensure that, to borrow a phrase, it is rolled out across the country and that it benefits all local authorities that need it?

Ms Hodge: In our funding plans, we have for the first time given local authorities three years' certainty. That has been widely welcomed, as has the increase in resources that we have made available to LEAs. Under the Bill, LEAs will have to submit their school access initiative plans, and officials will be able to use those reports to trigger a call-in if they are concerned that the strategy is not being implemented. The hon. Gentleman may like to know that all LEAs have taken advantage of the school access initiative resources made available for 2001-02.

We have other mechanisms to ensure that schools comply with the legislation. Asset management plans will be inspected by departmental officials. Amendments made in the other place will allow issues of disability to be inspected by Ofsted. Parents and others with an interest will be able to inspect the LEA's or the school's strategy, which will form another check. If parents are unhappy with how a school or an LEA is carrying out its duties, they will be able to complain to the Secretary of State or to the National Assembly of Wales, and such complaints will be investigated.

We have put in place a multi-layer, multi-agency set of mechanisms to ensure that lessons from individual tribunal cases will be applied in the wider context. They will put additional pressure on LEAs and schools to comply with the legislation. I hope that I have reassured Opposition Members, and that they will feel able to withdraw the amendment.

Mr. Boswell: I thank the Minister. In summary, her answer was good but not good enough. The Opposition attach great importance to the two elements embodied in the amendments. The hon. Lady has probably given sufficient answer to amendment No. 19, and I am minded to withdraw it in due course, but she gave a long, opaque answer to amendment No. 20, in which she deployed a complex set of remedies. I am not as happy with that answer, partly because, if the remedies are real, I do not see why they should not be included in the Bill.

As we have shown, we are concerned not only about redress for individual children, but about the more difficult cases in which individual LEAs set their faces against making systematic improvements in the sensitivity of their provision, and are happy to take the occasional reverse by the tribunal on the chin and go on to the next act of discrimination or unsatisfactory provision.

For that reason, we think that the Bill should include a provision to address that problem. It would provide an invitation that could ultimately be cashed in through the intervention of the Secretary of State, if no one else, on the ground of unreasonable behaviour. It would not only apply to individual LEAs that the tribunal had found delinquent in individual cases, but would require other LEAs to pick up on acceptable practice. That would follow the line taken when concerns about institutional failures in the police and other public services have been transmitted through the system.

11.45 am

It is important to make the tribunal mean something by intervening to change provision over the years. We are also concerned that the remedies are opaque, buried and not easily available to the average lay person encountering the tribunal for the first time. Therefore, I shall withdraw amendment No. 19, but am minded to test the Committee's opinion on amendment No. 20.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 20, in page 17, line 29, after `relates;', insert—

    `(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.—[Mr. Boswell.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Division No. 3]

Boswell, Mr. Tim
George, Mr. Andrew
Hayes, Mr. John
Randall, Mr. John
Robertson, Mr. Laurence
St. Aubyn, Mr. Nick

Barnes, Mr. Harry
Betts, Mr. Clive
Ennis, Mr. Jeff
Griffiths, Mr. Win
Hodge, Ms Margaret
Moffat, Laura
Mountford, Kali
Smith, Jacqui
Squire, Rachel
Whitehead, Dr. Alan

Question accordingly negatived.

Clause 18 ordered to stand part of the Bill.

Clause 19


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

Mr. Boswell: I always think that a Division in Committee is rather like a good brisk run. It turns everything up a little, but we do not have to continue at the same sprinting pace all the time. Clause 19 is long, complex and mainly procedural, and I reassure hon. Members that I do not want to generate heat or to divide the Committee. However, I want the Minister to respond to some points.

The co-hearing of claims under the special educational needs provisions and the disability discrimination provisions was touched on in another place and in the explanatory notes. There should be a single forum wherever possible, if only to spare individual families from hassle, distress, difficulty and even expense. That is a good and sensible aspiration. On occasion, a family may have good reason to think that two matters are discrete, even if others—an LEA, for example—think that they are the same. In other cases, the tribunal may feel that the issues are separate, although closely related.

I should be grateful for the Minister's guidance on whether separate hearings would be possible, with the same base data. How would that work, and would it satisfactorily cover the field? My day-to-day preference would be one hearing for all concerned, where a determination could be reached on both matters at once. However, it is possible that that would not be appropriate in certain circumstances.

My other points touch on my tribunal experience of some years ago. There is provision for hearings to be conducted in the absence of any member other than the chairman. That seems sensible in cases of indisposition, in which it would be a pity to have to wait for the person concerned to be available again. I was once empanelled on a tribunal in an incredibly unusual case, which had gone, in a manner of speaking, to the full arms race. Leading counsel had been briefed, at great expense. I shall mention, to cheer the Minister up, that the counsel concerned was an extremely distinguished planning silk, who is a leading light of the Society of Labour Lawyers and head of an Oxford college. The Minister may be able to guess who it was.

We listened with amazement to counsel's eloquence for several days, but I was then appointed as a special adviser at the Ministry of Agriculture, Fisheries and Food and immediately disqualified myself from the tribunal. That is about the next worst thing to a judge dying, and the huge expense of the proceedings raised concern. By way of a solution, the parties agreed that I could continue to sit for what was, at that stage, effectively a formal procedure.

Bearing in mind that members of the tribunal, as distinct from the chairman, have experience in special educational needs and disability issues, it may sometimes be sensible for them to carry out an investigation when the chairman is not available. I appreciate that the chairman's presence may be necessary when it comes to judgment. However, I remember a case in which two members with farming experience were sent to study how some agricultural procedure was conducted, or a drainage problem—I cannot remember exactly what. The chairman said, ``You know about those things. Give us a report, I will consider it and it can be included in the judgment.'' I do not think that that is inherently unreasonable, and it would be useful to make provision for it.

Proposed new section 28J(2)(m) provides for

    ``taxing or otherwise settling costs or expenses''.

The Minister has helpfully explained that the arrangements are supposed not to encourage litigiousness and that they should not, wherever possible, involve the use of lawyers to break the informality of the tribunal. There is a danger that some families may be denied justice if they fear that, in accordance with the British legal principle that costs follow the event, they might suddenly receive a bill for local authority costs in relation to a discrimination case, as opposed to a special educational needs case.

I recall from my tribunal work that, although we were empowered to make an order for costs, and were tempted once or twice to do so, that could be done only when someone had brought a frivolous, vexatious or otherwise inappropriate case. It had to be very extreme for us to proceed in that way. However, people who feel strongly about the way in which their child is taught or provided for should not be deterred from attending a tribunal because the full weight of the law and costs might fall on them if they were unsuccessful. That would add insult to injury.

Proposed new section 28J(5) deals with allowances. It has always been a cause of modest rancour with me that the tribunal on which I served did not pay its members a fee, although it paid expenses. I think that the usual practice that has developed, for example in employment tribunals, is to pay a reasonable rate for the day. If the Minister wants to find good people for the tribunal, she should expect that to be necessary. My recollection is that the special educational needs tribunal operates in that way. However, it might be helpful if the Minister could say something about that when she rises to respond to my points.

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