Clause
133
Power
of governing body: educational provision for improving
behaviour
Question
proposed, That the clause stand part of the
Bill.
3.30
pm
Mr.
Marsden:
I am grateful for your guidance, Mr.
Bayley, and apologise if I caused any unintended confusion. I very much
wanted to speak on this clause and associate myself with concerns that
have been expressed by the Special Educational Consortium and the
National Autistic Society about the clause as currently drafted
.
We should at least
consider whether the famous parliamentary law of unintended
consequences might at some stage come into practice with this
provision. The clause will formalise the practice whereby school
governing bodies direct students, including students with special
educational needs, to attend alternative forms of provision to improve
behaviour. Who, one might say, could be against that process? But the
Special Educational Consortium has real concerns that formalising that
practice will lead to students being removed from schools without
proper consideration of the impact of their special educational needs
on the behaviour
concerned.
Obviously,
the SEC, like myself, welcomed the proposal to extend the requirement
to stay in education or training to the age of 18—not least
because of the potential benefits this will bring to young people with
learning difficulties and special educational needs. But the plain fact
is that statistics show that many disabled students and those with
special educational needs are already out of school by the age of 16 as
a result of exclusion, both formal and informal. Many more pupils in
that area have poor experiences of education.
The Liberal Democrat
spokesman on this matter and I were colleagues on the former Education
and Skills Select Committee, and we know from its inquiries on SEN and
bullying how this can be a particular issue. The statistics are
frightening. There are eight times as many exclusions of pupils with
special educational needs as of pupils without them, so one has to ask
to what extent do official exclusions create a
problem?
There is very
clear guidance set by the Department that such exclusions are illegal.
The guidance also recommends that, where all else fails, the school
should seek a statutory assessment or, for a pupil with a statement, an
early annual review. Again, the fact is that the high level of
exclusions of pupils with SEN suggests that those recommendations are
not being followed, so the SEC wants more effort and more measures to
keep disabled pupils and those with SEN in school, with a better
experience of school.
An important factor to take on
board here, I am sorry to say, is the very mixed reputation of some of
the pupil referral units to which children with SEN go. I make no
comment on any particular ones, or any particular areas, but,
nevertheless, the mere fact that children with SEN can be referred to
pupil referral units in company with young people who are there for
very different reasons, in very troubled circumstances, can also cause
a problem.
Those
concerns are shared by the National Autistic Society, which has also
written to me. I declare an interest, because the issue of autism,
particularly Asperger’s syndrome, is one that I had to deal with
several times in this respect in my own constituency. It says that the
number of children with autism who have been excluded, and excluded
repeatedly, is
worrying.
It is worth
saying again that the school environment throws up a range of
challenges for pupils with autism, including those with
Asperger’s syndrome, particularly at secondary level. The NAS
rightly reminds us that environmental triggers and disruption to
routine can lead to high anxiety in terms of peer relationship,
bullying and low self-esteem. The classic pattern for children with
autism who exhibit such challenging behaviour is that stress built up
from low-level bullying can often trigger a sudden disproportionate
response. That is the so-called row in the dinner queue syndrome, to
which Lord Adonis and others have referred.
The NAS asks for appropriate
safeguards to ensure that any underlying factors that contribute to the
behaviour are considered before a child is removed from the school
premises. The NAS and the SEC are concerned that one of the unintended
consequences of the clause is that the Bill does not make it clear
whether removing the pupil from the school premises would be regarded
as an exclusion or disciplinary penalty, as defined by the Education
and Inspections Act 2006, in which case safeguards would
apply.
Mr.
Heald:
When the hon. Gentleman was making his points about
pupil referral units, I was not entirely clear
whether he was making a distinction between different kinds of special
needs. I was once a governor of a special school where the youngsters
were EBD—
emotionally and behaviourally disturbed—and of course, their
behaviour was difficult. I have also been a governor of a school where
the pupils had MLD—mild learning difficulties—and they
were quite different cohorts. Is he distinguishing between the two when
he talks about special needs?
Mr.
Marsden:
The hon. Gentleman is right to point out that
there are a range of differences, and I observe those distinctions. The
point that I was endeavouring to make is that it can be catastrophic if
someone with a severe autistic disability such as Asperger’s is
referred to a unit that other young people attend for totally different
reasons. That is one of the factors that should be taken into
account.
I understand
that there is a suggestion that in some circumstances there would be a
review mechanism, through regulations made under the Bill, after a
period of time. The problem with that is that, especially for the sort
of young people whom I am talking about, if they are referred
inappropriately to such establishments, the effects on that young
person could be catastrophic, particularly if they have to remain there
for some three or four weeks before it is established that that is an
inappropriate place for them to be. Therefore, if the Government intend
to continue with clause 133 in its current form, the NAS and SEC would
at least like consideration to be given to a proactive statement in
that respect, rather than a reactive one some 20 or 30 days
later. It is not a question of challenging the motives and the
intentions, but of considering the possibility of the law of unintended
consequences. I urge Ministers and their officials to reflect on the
real concerns that have been expressed by the organisations concerned,
which I am articulating today.
Mr.
Hayes:
It is a reasonable test of a civilised society that
we should judge how it deals with its most vulnerable citizens.
Children with special educational needs are among the most vulnerable.
The proposals and briefings of the NAS and the SEC have done the
Committee a great service. I pay tribute to them and their work. I am
grateful for the chance to follow the hon. Member for Blackpool, South
who has also highlighted their
comments.
It seems to
me that the issues are these. The clause makes some sensible provisions
about exclusion, but the NAS and SEC wish for the particular
circumstances that affect so many children with special educational
needs, particularly children with learning difficulties, should be
taken into account in the application of those provisions.
Understandably, they suggest that we strike out the clause. I am not
sure that that is the right solution because it would get rid of what
are sensible provisions for most purposes and in most circumstances. In
responding, the Minister needs to have a convincing answer as to how
children with special educational needs are to be dealt with,
particularly those children whose cases the NAS and SEC have
highlighted.
Angela
Watkinson:
Does my hon. Friend agree that subsection (1)
of proposed new section 29A of the Education Act 2002 requires any
registered pupil to attend any place outside the school premises for
educational provisions to improve their behaviour? Is
not the ideal situation to have a separate place
within the school in the pastoral care department? There a child with
special needs is not in a position to disrupt the education of their
peers, but has a place within familiar surrounds, within the school
building where they can have correctional improvements and
treatment.
Mr.
Hayes:
My hon. Friend may have seen that kind of provision
working in her constituency, as I have in mine. She is right that there
are circumstances where it is much better to isolate the child but not
outside the school premises, with all that that means. That may be
particularly true with the kind of children that the hon. Member for
Blackpool, South spoke of and that the organisations that I mentioned
champion.
Mr.
Heald:
Does my hon. Friend think that another problem is
that there has been a cutback in special schools and that for some
pupils with EBD a special school is a good option? It would be wrong
for a child of that sort to end up in a pupil referral unit, when they
actually need specialist support.
Mr.
Hayes:
I intend to speak about EBD at some length. My hon.
Friend is right. The biggest growth in statements is in EBD. The number
of children with emotional and behavioural difficulties seems to grow
inexorably. Almost by definition, there are discipline issues
associated with those children; they are challenging in the classroom
and difficult to teach. It is essential that we get the regime right
within mainstream schools, where we have children with those
challenges, and that we are clear about when it is better for those
children to be educated
elsewhere.
There are
other groups of children as well as those with emotional and
behavioural difficulties that fall into that category. I am mindful of
children and young people with acquired brain injury, who display some
of the characteristics typical of children and adults with autism, like
the inability to concentrate, inappropriate behaviour and difficulty
forming relationships. Those are features of people with acquired brain
injury, which sometimes make it difficult for them to interact with
people supervising them and with their peers.
The hon. Member for Blackpool,
South mentioned this point, but it is worth amplifying. The National
Autistic Society emphasises that autistic children are frequently
bullied. That bullying can lead to a disproportionate reaction on their
part. That is what leads to the exclusion or disciplinary action.
Another feature of autistic children is that they are often encouraged
to behave in ways—sometimes seeking peer group
approval—that get them into trouble and identify them in a way
that is unhelpful and often unfair. The provision affects all kinds of
groups of children who might find themselves in circumstances that we
would not, as a Committee, judge to be reasonable. This part of the
Bill must at least be applied with sensitivity in that
regard.
3.45
pm
There are five
other things that I would like to say about this issue. First, the
issue is largely about the training and preparation of teachers. We
said earlier that many teachers find themselves ill equipped to deal
with the challenges presented by special needs children in mainstream
schools. A reason to strike the clause out, were it not for its other
virtues, is that sometimes exclusion, removal or discipline is the
easiest reaction for a teacher who is not equipped to deal with the
challenges presented by an autistic child, a child with an acquired
brain injury or a child with another kind of learning difficulty, who
is displaying inappropriate behaviour, failing to interact with their
peers or reacting to authority in an unacceptable way simply out of
frustration. It is critical that we focus on the preparation of our
schools, head teachers and teachers and ensure that those who are
responsible for special needs policy in schools understand the policy
behind this part of the
Bill. Secondly, there
is an issue about resources. By that, I mean not money, but the
physical resources alluded to by my hon. Friend the Member for
Upminster when she talked about a separate area within a school where
people can be taken to be educated separately for a while. Much of this
issue is about not going down an avenue that leads to a cul-de-sac from
which we cannot escape. Once one has taken action that leads to a child
being taken out of school and possibly formally excluded, it is hard to
draw back. A process begins that has a degree of self-fulfilment about
it. It could end up at a destination that was not intended initially.
The capacity to take a decision that is not so definitive, but which
allows a child to be dealt with separately from the remainder of the
school for a short period will often be sufficient to satisfy that
child’s needs, to protect the interests of their peers and to
allow the teachers to adopt the right
strategies.
The
Chairman:
Order. The hon. Gentleman is speaking in order,
but I remind him that we have just over 10 minutes to go and that other
hon. Members wish to speak in this debate. Whether we will get to
further debates is another matter, but he might like to abbreviate his
remarks if he
can.
Mr.
Hayes:
I shall finish my three remaining points, leaving
plenty of time for other hon. Members to contribute to the
debate.
My third point
is that it is very important that local authorities and others have a
clearly defined strategy on this matter. My experience of local
government as shadow Schools Minister, before I was elevated to higher
and further education, was that local authority practice in these terms
is variable. Some local authorities have very good, well-established
policies, while others are—I am trying to choose my words kindly
and carefully—considerably less thought through about these
matters.
My
fourth point is that it is very important that agencies such as the
National Autistic Society the charities that have expertise in this
field are properly involved in policy formation.
Finally, I would simply say that
some of this debate arises from the wholesale integration into
mainstream education of children who should not be there. Although the
Government have taken, albeit faltering and grudging, steps down the
road that we have wanted them to take from the outset, I urge the
Government once again to share the Opposition’s faith, passion
and
belief in special schools, which are very often the
best place to educate the sort of children of whom we are speaking.
They are secure environments, with high levels of expertise, where
those children most frequently find the opportunity to fulfil their
potential. I strongly
endorse the sentiments expressed by the hon. Member for Blackpool,
South and the briefings we have been given by some excellent agencies.
I hope the Minister, who must have this clause, will at least mitigate
its effects in the ways that we have
described.
Mr.
David Laws (Yeovil) (LD): I shall try to gain the peer
group approval that the hon. Gentleman spoke about by being fairly
brief and not eating into the last 10 minutes that we have for the mere
40 amendments and new clauses ahead of us.
I add our support for the
comments made by the hon. Member for Blackpool, South; we share his
concerns about the clause. We hope that the Minister will respond
positively. Could he also let us know, if the clause is not to be
deleted or amended, what responsibilities the schools will have to
notify local authorities of any action they take under the
clause?
Mr.
Heald:
I have two points to make. Woolgrove school in my
constituency is a special school that has an autism unit. The special
care and help that its staff are able to give young people with such
problems is fantastic. I hope that, rather than go down the route of
pupil referral units and similar temporary expedients, the Minister
will give due prominence in his policy making to having more units of
that sort. One of the problems is that there is not enough specialist
provision for autism and the wide spectrum it covers.
My other point is that I used to
be the governor of a very good special school for EBD youngsters. It
strikes me as very sad that that school is closed. It was an Inner
London education authority school, and one of the good things about
ILEA was that it had some extremely good special schools provision. I
hope that the Minister and the Government have learnt that it is a
mistake to close special schools, which have such fantastic staff and
the ability to help some of our most vulnerable
children.
Jim
Knight:
A school governing body already has the power
under section 29(3) of the Education Act 2002 to direct a pupil
off-site for education or training. That was intended to enable schools
to send pupils to other schools or further education colleges to take
academic or vocational subjects that their own school could not
provide, but the power is also applied for a number of other purposes
that may go beyond that stated in the 2002 Act, and we should tidy that
up.
We
know that some schools use the power for the purpose
of sending challenging pupils to various forms of alternative provision
without resorting to the more punitive exclusion legislation. I have
listened very carefully and will reflect on what my hon. Friend the
Member for Blackpool, South has said. Reliance on section 29(3) of the
2002 Act, where the underlying reason for transfer is
behaviour related rather than instruction or training related, is
unsatisfactory. We cannot go further in guidance on the existing
legislation. We want
legal clarity for school partnerships, such as the excellent Chesil
Educational Partnership in my own constituency, to improve
behaviour and tackle persistent absence. Partnerships must be able to
transfer a challenging pupil between schools or from schools or
partnership-managed alternative provision without the parent’s
consent, particularly when the parent is a major part of the problem.
The clause would allow governing bodies to do that and remain clearly
within the
law.
Mr.
Heald:
Will the Minister give
way?
Jim
Knight:
Let me make some progress. If I have time to give
way in the next five minutes, I shall certainly do
so.
On the arguments
that were made, quite properly, about pupils with special educational
needs and disabilities, the new power does not in any way relieve the
governing body of its duty to use its best endeavours to ensure that
the special educational provision is made for pupils with special
educational needs; neither does it relieve the local authority of its
duties to arrange special educational provision specified in
children’s statements of SEN, if they have a statement. Guidance
on the new power will send strong messages about the extra
consideration needed for pupils with special educational
needs.
I am happy to
release the indicative regulations to the Committee before the report.
If my hon. Friend the Member for Blackpool, South, subsequent to my
publishing those indicative regulations, would like to meet me to
discuss them and bring with him representatives of the NAS and the SEC,
I would be happy to have such a meeting to make sure that we get the
regulations right. I could then respond to all the other points that
have been made. I could respond to them in detail now but, given the
time, it would be better if I did not do
so.
Mr.
Heald:
To pick up on the point made by the hon. Member for
Blackpool, South, if the child to be taken out of a mainstream school
and put somewhere else is autistic, does the Minister acknowledge that
it is unacceptable for that pupil to be put into a special referral
unit that has no specialist knowledge of how to look after such a
child? The child should always be put into a specialist
place.
Jim
Knight:
As I have said, the governing body and the local
education authority have a duty to arrange educational provision that
is appropriate for the child’s
needs.
Question put
and agreed
to.
Clause 133
ordered to stand part of the
Bill.
Clauses
134 to 142 ordered to stand part of the
Bill.
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