Fourteenth Standing Committee on Delegated Legislation

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Fourteenth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Mr. Roger Gale

Allan, Mr. Richard (Sheffield, Hallam) (LD)
†Atkinson, Mr. David (Bournemouth, East) (Con)
Baldry, Tony (Banbury) (Con)
†Beggs, Mr. Roy (East Antrim) (UUP)
†Best, Mr. Harold (Leeds, North-West) (Lab)
†Cousins, Mr. Jim (Newcastle upon Tyne, Central) (Lab)
†Donaldson, Mr. Jeffrey M. (Lagan Valley) (DUP)
†Farrelly, Paul (Newcastle-under-Lyme) (Lab)
†Gardiner, Mr. Barry (Parliamentary Under-Secretary of State for Northern Ireland)
†Harris, Mr. Tom (Glasgow, Cathcart) (Lab)
†Hoban, Mr. Mark (Fareham) (Con)
†Jones, Mr. Kevan (North Durham) (Lab)
†Luff, Mr. Peter (Mid-Worcestershire) (Con)
†Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)
Mallon, Mr. Seamus (Newry and Armagh) (SDLP)
Osborne, Sandra (Ayr) (Lab)
Simon, Mr. Siôn (Birmingham, Erdington) (Lab)
†Tami, Mark (Alyn and Deeside) (Lab)
†Watson, Mr. Tom (West Bromwich, East) (Lab)
†Wright, Iain (Hartlepool) (Lab)
Alan Sandall, Committee Clerk

† attended the Committee

Thursday 17 March 2005

[Mr. Roger Gale in the Chair]

Draft Special Educational Needs and Disability (Northern Ireland) Order 2005

2.30 pm

The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Barry Gardiner): I beg to move,

That the Committee has considered the draft Special Educational Needs and Disability (Northern Ireland) Order 2005.

It is a great pleasure, Mr. Gale, to serve under your chairmanship. I am sure that you will join me in wishing all members of the Committee a happy St. Patrick’s day. I am equally sure that the Committee will wish to express its gratitude to those members of the Northern Ireland civil service who otherwise might be having a holiday today. I hope that the triple time that they will undoubtedly receive will make it all worth while.

A draft of the order was laid before the House on 9 February 2005. I have great satisfaction in bringing before the Committee this much-needed piece of legislation, which represents an encouraging step forward in fulfilling the Government’s policy on inclusion. It gives children, young people and adults with disabilities in Northern Ireland the same rights as their counterparts in England, Scotland and Wales.

The order will do two things: strengthen the rights of children with special educational needs to be educated in mainstream schools; and introduce enforceable disability discrimination legislation to the education sector in Northern Ireland. It has four elements. It builds on and strengthens our existing special educational needs framework; it introduces enforceable disability discrimination legislation in schools in Northern Ireland; it does the same for further and higher education providers; and it makes it unlawful for general qualification bodies to discriminate on grounds of disability.

The first element will build on and strengthen our existing special educational needs framework. The most significant provision is that it will strengthen the rights of children with special educational needs to be educated in mainstream schools. It recognises parental choice while protecting the education of others. In order to assist parents in making that choice, the order will place a duty on education and library boards to provide parents with the information that they need.

Should parents and schools or boards disagree, the order places a duty on the boards to offer an independent dispute avoidance and resolution service, so that parents might avoid the need to go to a tribunal. The new SEN provisions will be supplemented by guidance, which boards, schools and others must take into account when making decisions.

The second element of the order will remove the exemption from the provisions of the Disability Discrimination Act 1995 that the education sector in Northern Ireland has now. School children in Northern Ireland will for the first time benefit from the rights that, until now, have been available only to staff and visitors to the school.

Schools will be prohibited, in their admission, expulsion and suspension arrangements, from discriminating against children who have disabilities. Schools will have to make reasonable adjustments to ensure that children who have a disability are not placed at a substantial disadvantage in comparison with those who do not have a disability.

Schools, and education and library boards will have a duty to plan over time to improve the accessibility of buildings, the curriculum, and the provision of information to pupils with a disability. All new schools are to be designed and built to take account of the requirements of the new legislation. In addition, every education and library board will have to produce an accessibility strategy; and each school will have to produce its own accessibility plan.

The third element of the order deals with potential disability discrimination in institutions of further and higher education. The Department for Employment and Learning is seeking to promote the inclusion of students with disabilities in further and higher education. The order will build on existing financial and other initiatives by ensuring that students with disabilities are not subject to discrimination on account of their disabilities.

As with schools, the order will require all higher and further education providers to treat students with disabilities no less favourably than students who are not disabled, and to make reasonable adjustments so that students with disabilities are not put at a substantial disadvantage.

Discriminating against students with disabilities will be permissible only when it is necessary to maintain academic standards and in certain prescribed circumstances. Under the order, schools will be required to improve accessibility over time for pupils with disabilities, and colleges and universities will have a duty to ensure that premises and courses are fully accessible from the date on which the legislation becomes fully operational.

As with schools, the further and higher education provisions will be supplemented by a code of practice that the Equality Commission will produce and that will provide practical guidance on the interpretation of the legislation. The failure of universities and colleges to comply with the legislation could result in students or prospective students seeking redress through the county courts.

It should be noted that the legislation will apply not only to teaching but to any associated service that is provided mainly or specifically for students, such as careers welfare advice, and sporting and leisure activities.

Overall, the legislation will require colleges and universities to be much more proactive in meeting the needs of students with disabilities. Disability rights will become a core issue for all those involved in developing and implementing policies and practices in the higher and further education sectors.

The fourth element of the order makes it unlawful for general qualifications bodies to discriminate against people with disabilities in relation to the award of prescribed qualifications. General qualifications bodies will have to take reasonable steps to ensure that people with disabilities do not suffer substantial disadvantage in comparison with others.

The draft order was the subject of an all-embracing 12-week consultation in spring 2004. It produced a considerable amount of interest—more than 250 responses were received from a wide range of concerned individuals, groups and health and education professionals. There was also separate and direct consultation with 84 children and 31 parents.

Last May, the Northern Ireland Grand Committee debated the draft order. That important debate, the consultation responses, the direct consultation with children and parents, and meetings with the Equality Commission and the Northern Ireland Human Rights Commission have helped to shape the order. The consultation showed that the order is generally welcomed by all sectors. It is viewed as having a beneficial effect on the educational lives of children with special educational needs and on adults with disabilities.

Many of the issues raised are not directly relevant to the order. They are, however, appropriate to the codes of practice that will support the order and that will in turn be consulted on. Some complex issues were raised, perhaps the most significant of which was how to balance the best interests of the child with parental choice and the efficient education of others. The challenge is how to ensure that parents and professionals work together to give a child with special educational needs the educational provision that is in his or her best interests.

The temptation simply to add a third test to article 3 in the best interests of the child was almost overwhelming, but the question was whether doing so would be in the best interests of children with special educational needs. I studied the possibilities for some time, sought advice from many quarters, and listened to the proposals of the Equality Commission and the Northern Ireland Human Rights Commission. After considerable reflection, I concluded that adding a third test would not be in the best interests of children with special educational needs, because, as we know, those best interests will always be determined by someone’s considered judgment. In every aspect of a child’s life, we accept that it is the parents’ right and responsibility to exercise that judgment, so the order already has the best interests of the child at heart. It already offers that protection in many places, and to alter that protection simplistically could have a very negative effect.

By not changing article 3, we will ensure that parity with the Special Educational Needs and Disability Act 2001 is maintained, thus enabling the special educational needs and disability tribunal boards, schools and others to benefit from Great Britain’s jurisprudence and guidance on this matter. It is therefore more appropriate that we consider the best interests of the child in a wider review of the SEN code of practice to which all parties and the special educational needs and disability tribunal are required to have regard.

All sectors were concerned that children’s voices should be heard when any decisions are taken that concern them. I agree. It is important that children’s voices are heard. That is no less the case for a child with special educational needs. It is particularly so when a case is brought before the special educational needs and disability tribunal. The regulations controlling that body will therefore be revised. In addition, the wider review of the SEN code of practice will also place greater emphasis on the views of the child.

Some respondents were concerned about the terminology used in the order, in particular the term “substantial disadvantage”. That phrase is used in the Disability Discrimination Act 1995, and has therefore been well defined by the courts and in guidance. The term is widely used to mean “more than minor or trivial”. It is not an additional hurdle for people with disabilities. It would not be appropriate for different terminology to be used within the order, as that would lead to confusion between this and the remainder of the Disability Discrimination Act. Therefore, I intend the codes of practice to mirror the definition and to give examples to aid understanding.

I am pleased to announce that funding of £57.8 million for the implementation of the new law has been made available by the Department of Education and the Department of Employment and Learning. That is in addition to funds already spent in anticipation of the legislation and to the £19.5 million already in place to support the inclusion of people with special educational needs and disabilities in education in Northern Ireland.

2.42 pm

Mr. Mark Hoban (Fareham) (Con): I start by saying how much I am looking forward to serving under your chairmanship, Mr. Gale, and by adding to the remarks of the Minister on St. Patrick’s day. I hope that, on behalf of his civil servants, he has spoken to the business managers for Committees about such a debate taking place today and depriving the civil servants of their day’s holiday.

We support much of what is before us, and I do not intend to speak for long, as I do not think it appropriate for hon. Members who do not come from Northern Ireland to speak on the issue. However, I want to comment on the experience that we have had in England in respect of some of the provisions of the order, and how it relates to the implementation of the legislation in Northern Ireland.

We support the policy of inclusion in schools. It is important to remove the barriers that have historically existed between special and mainstream schools, and to ensure that, where inclusion takes place, it is successful. Regrettably, the Ofsted report on inclusion in mainstream schools, published towards the end of last year, indicated that that is not always the case, and that one of the aspects that needs to be tackled in connection with successful inclusion is the adequacy of resources. The Minister announced the amount of money that would be set aside to enable implementation to take place, but to what extent has he assessed the cost of proper inclusion in mainstream schools—particularly given the amount of support needed by young people with conditions such as autism or physical disabilities such as blindness and hearing impairment? It can be expensive to include them.

We need to consider not just physical access to schools but pupils’ access to the curriculum. Many organisations that do an excellent job in trying to promote access to the curriculum, but that is often overlooked in the context of inclusion, and of ensuring that materials are available to young people who suffer from particular conditions.

The Minister touched on the important issue of article 3, and of trying to strike a balance in terms of young people’s needs. The presumption in favour of mainstream education or, as it is termed in the order, “ordinary schools”, has led in England to pressure to offer parents mainstream as the only option for their children. That has led to information about special schools being put to one side, and, in a sense, the direction being given to parents that mainstream is the only option. What guidance will the Northern Ireland office give to the education and library boards to ensure that parents are given a fair choice between special and ordinary schools, and are not channelled towards mainstream schools, as happens in England?

My second point relates to article 4, which concerns advice and guidance to parents. It mirrors the code in England; in its response to the consultation paper, the National Autistic Society expressed concern about the independence of the advice to be given to parents of children with special educational needs.

In England, the independent advice is often prepared and provided by employees of local education authorities. There is, among some parents, a concern that that compromises independence—that those concerned are not necessarily giving the best advice possible because, as local government employees, they are caught in the bind that so many find themselves in when they act as both assessor and funder of provision for children with special educational needs.

What encouragement can the Northern Ireland Office give to education and library boards to ensure that what are, in England, I think, called parent partnership services, will be provided, or at least put out to tender to voluntary organisations to ensure that some independent advice is given?

The Minister referred to article 7, which concerns the appeals process. That, again, is a difficult issue, and I think that the South Eastern education and library board made a valid point in its submission to the Northern Ireland Office, when it stated:

“The South Eastern Education and Library Board notes that additional time spent by Officers and Principals”

at special educational needs tribunals

“reduces the amount of time available for pupils with SEN.”

The same point arises in the case in which several English LEAs used barristers and specialist expert advice, at very expensive rates, to contest parents’ views at tribunals. The resources used to pay for that special advice could better have been used to improve provision in schools for children with special educational needs.

What guidance will the Northern Ireland Office give to ensure that education and library boards considering appeals will properly bear in mind the balance between defending their case and ensuring that resources that are best spent on meeting the needs of children are spent in that way and not on barristers and expert witnesses?

2.48 pm

Mr. Jeffrey M. Donaldson (Lagan Valley) (DUP): As the first hon. Member from Northern Ireland to speak this afternoon I want to echo the Minister’s sentiments and wish everyone a happy St. Patrick’s day. I had the joy of enjoying a bowl of champ at a reception downstairs to mark the occasion, and we are delighted to have the support of so many hon. Members in the House in giving recognition to our saint’s day.

I welcome the order and the opportunity to debate it this afternoon. The subject of special educational needs is dear to my heart. I have a younger brother who suffers from cerebral palsy and I know of my family’s difficulties over the years in obtaining access even to special education for my brother. As a consequence of my family experience I have worked closely with parents in my constituency on the matter of special educational needs and disability. I commend the work of many groups in Northern Ireland, such as Mencap and Disability Action, which have been pressing for such legislation for many years. Therefore, at the outset I give a broad welcome to the Department’s initiative in bringing the order forward.

However, I have some queries and I hope that the Minister can provide some clarification. My party fully appreciates the desire of many parents in Northern Ireland to have their children educated at mainstream schools. However, we are concerned about how the legislation will be implemented and, in particular, about the associated costs and the impact on other pupils in mainstream schools. The order has significant resource implications and comes at a time when, as the Minister will know, education and library boards are being forced to make cuts in vital services to avoid multi-million pound shortfalls. We include library services in that category. Will the Minister indicate when he replies what discussions he has had with education and library boards, and schools about the implications of the order for them and their responses about its implementation?

I am also keen to know what proportion of parents the Minister expects will want their children to be transferred to mainstream schools. In the past he has suggested that it is not possible to make such an estimate, but surely it would be wrong to implement the legislation without at least some indication of the likely resource implications. Is there information from Great Britain about the number of pupil transfers to mainstream schools that would allow us to draw parallels with Northern Ireland?

We have been informed that £19.5 million will be provided over three years to support children with special educational needs statements in mainstream schools. Presumably, that is not all new money. Can the Minister tell us how much was spent on children with special needs in mainstream schools in the past three years, so that we can compare the current situation with the new resource provision that will be required on implementation of the order? If the exercise of the right to mainstream education is more widely availed of than the Department anticipates, will the Minister consider adding to the £19.5 million rather than allowing the burden to fall on schools and education boards? That is an important issue. Although I welcome the Department’s commitment to this legislation, many people will be anxious to know if the Department will follow through with the necessary resources and funding, should the take-up rate be higher than anticipated.

In relation to article 3 about access, I would like to know how and by whom the term “reasonable steps” in new article 7A(4), to be inserted into the Education (Northern Ireland) 1996 Order, will be adjudged. Adapting every school to cater for every child is a mammoth undertaking, which will require extra staff, specialist medical equipment, nurses, therapists, specialist IT and transport provision. Access to a mainstream school should not have to mean access to any specific school. I appreciate that parental choice operates in Northern Ireland, and my party fully supports parental choice in principle, but not every school in Northern Ireland provides every subject on the curriculum, so parental choice is circumscribed to an extent by what schools offer. Therefore, we contend that not every school should have to provide the same access to the curriculum for every child with special needs. One or two schools in each town or village in Northern Ireland can accommodate those with special needs; it is not making the best use of resources to force every school in the same neighbourhood to plough valuable resources into identical restructuring. Will the Minister tell us what scope there is for variation between schools in terms of providing access? Will all schools be expected to meet the same standard or will there be variations between schools in a local community? The Minister will know that there is significant variation in mainstream education for children who do not have special educational needs.

Special needs children can exhibit a number of different, and often rare, medical conditions. Children with severe epilepsy may require urgent medication after the onset of an attack, which teachers and assistants are discouraged from administering by trade unions. Individual full-time nursing training costs £25,000 a year and an individual classroom assistant for a child with an autistic spectrum disorder who exhibits complex behavioural symptoms costs £18,000 a year. Another £1,000 is required for specialist training, as well as £2,000 annually for support services. Escorted taxi transport may cost up to £40 daily. The school census projection is that more than 1,600 school pupils will fall within the autistic spectrum by 2008. That is only one category of children with special needs. I am all for the Government spending more to support children with special educational needs and learning disabilities—indeed, I have argued for that—but we need to ensure that resources are properly targeted and not spread so thinly that schools cannot meet the targets, requirements and obligations placed on them as a result of the order. Will the Minister say to what extent additional support will be provided to schools to train staff to deal with that scenario?

The costs for a severely visually impaired child in a mainstream school would be similar. Braille equipment and other specialist devices are also required, and recruiting Braille-trained assistants can prove very difficult.

Inclusion in mainstream schools is not necessarily appropriate for all with special needs, which the Minister accepts, but it is wrong to confuse social inclusion, which is desirable for all young people, with educational inclusion. For some children with severe needs, mainstream schooling would certainly not prove to be in their best interests. We oppose inclusion for inclusion’s sake. We must not allow the desire of some parents for mainstream education for their children to cause us to overlook the phenomenal contribution of our special schools in the Province. There are some excellent special schools in my constituency. Parkhill special school in Lisburn and Beechlawn special school in Hillsborough have offered excellent education and support to children with special needs for several years, and Brookvale special school in my constituency offers excellent educational support for children with minor learning difficulties. The Minister has been supportive of those schools. Brookvale special school is getting a new building, which we much appreciate.

Can the Minister say what impact the order will have on those special schools and on their funding? In Great Britain, approximately 80 special schools, which between them catered for 100,000 young people, have closed in the past seven years. Can we expect similar closures of special schools in Northern Ireland?

Article 3 substitutes article 7 of the Education (Northern Ireland) 1996 order with a new article 7, paragraph (3) of which states that children with special educational needs

“shall be educated in an ordinary school unless that is incompatible with . . . the provision of efficient education for other children.”

Will the Minister say how the Department will seek to quantify that definition of the efficient education of other children?

I agree that the right to the best education for children with special needs must not be overlooked, but we must also ensure that the rights and requirements of children in mainstream education are not unduly affected as a result of the resource implications of implementing the order. Will the Minister say how the per capita spending on these children will be affected by the implementation of the order? If children with special needs requiring specific intervention join a mainstream school class, will not that mean that the spending on each of the other pupils in the class will have to be reduced to some extent as a result?

In recent weeks I have been talking to specialists in special education and disabilities who raised a number of queries. Will the Minister clarify articles 28 and 29 of the order? Further education colleges should anticipate the needs of disabled students and create an atmosphere in which students feel secure to disclose hidden disabilities. How will the order facilitate matters for students in further education?

Similarly, although academic courses are exempt from some of the order’s provisions in cases of less favourable treatment in order to maintain academic standards, disabled people are twice as likely to have no qualifications as non-disabled people. Colleges should, therefore, consider making reasonable adjustments to academic requirements so that they do not compromise standards. Again, I would be interested to hear the Minister’s view.

I turn to the Equality Commission’s proposed conciliation service. The proposals would introduce a face-to-face conciliation service, with mediation between the employer and the individual. That is obviously to do with employment, but it has implications in connection with the order. The service is intended to be a user-friendly alternative to going to a tribunal and it covers employment, goods, facilities and services. With the arrival of the order it could also cover schools, but the Equality Commission does not propose including them in its plans for the scheme.

Does the Minister envisage the commission having a role in the aspects of conciliation covered by the order? Does he recognise the importance of conciliation in matters relating to special education? Will he ensure that the commission expedites an appropriate conciliation scheme for the parents of children with special educational needs in Northern Ireland?

Before I close, I briefly mention the report on speech and language provision published last week by the Northern Ireland Commissioner for Children and Young People. That overview report highlights wide variations across the Province in the services offered to children and in the investment in speech and language by the various boards. In the North Eastern board area—I know that the hon. Member for East Antrim (Mr. Beggs) has a special interest in that area—one in every 319 children is awaiting speech therapy assessment, but it is only one in 116 in the Southern board area. The Southern and Western boards both employ only 30 speech therapists. In the Sperrin Lakeland Trust area, children can wait in excess of 20 months before treatment commences.

There are problems. I know that the special schools in my constituency struggle to provide speech and language therapy and physiotherapy support to statemented children attending their schools. Some pupils at special schools are not receiving anywhere near the level of support and intervention that their statements require. If special schools cannot provide adequate support at the moment for children with special educational needs, the question is simple: where will the additional speech and language therapists and the additional occupational therapists come from when children are taken out of special schools and placed in mainstream education? Speech and language therapists will have to visit a multiplicity of locations rather than work only at the special school and see pupils one after the other.

What studies has the Department carried out into the recruitment of additional speech and language therapists, occupational therapists and so on who will be needed under the order? It has significant resource implications. I do not ask that question from a negative perspective; I want to see more therapists available to support not only children moving into mainstream education, but those who are already in special schools and are not getting the assistance and therapy support that they require. I know that in Parkview special school in my constituency, the staff struggle; and parents are at times extremely frustrated that their children are not provided with the level of support—particularly therapy support—that has been recommended under a statement. As the Minister knows, when a parent gets a statement that recommends a certain level of therapy support, it creates an expectation that, if not fulfilled by the support provided in the special school, leads to intense frustration.

When debating the proposal for this draft order in the Northern Ireland Grand Committee, to which the Minister referred in his opening remarks, I referred to a term used by Dunfane special school in Ballymena in its consultation response to the Department. It said

“Inclusion where possible, special when necessary”.

That encapsulates my party’s position. It is important to help parents who wish to move their children into mainstream education, but that should not be done at the expense of continued support for special schools or of children who are already in mainstream schools and who should not be unduly affected by the implementation of the order.

As the Minister knows, there are already huge demands on education budgets. I fully respect the rights of parents to have their children educated where they wish. However, it is essential for the Government to be aware of the concerns that exist about the impact that the order will have on education spending.

3.7 pm

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Prepared 18 March 2005