Memorandum submitted by RNID Cymru
RNID Cymru is pleased to have the opportunity
to respond to this consultation exercise on the Legislative Competence
Order on Additional Educational Needs.
RNID Cymru is the charity working to change
the world for the 480,000 deaf and hard of hearing people in Wales.
We do this by giving advice, information and providing services
to improve the lives of deaf and hard of hearing people. We also
conduct research and run campaigns to understand and change people's
attitudes to deafness. And we work in partnership with others
for the benefit of people who are deaf and hard of hearing.
SOME USEFUL
BACKGROUND FACTS
— An estimated one in 1,000 children
are born deaf (ie with a level of permanent deafness severe enough
to make a difference to the process of spoken language development
normally observed in hearing children).
— An additional 50-90% of the population
of deaf children develop hearing loss by the age of nine (which
raises incidence to 1.65 per 1,000 live births) (Fortum et al,
BMJ September 2001).
— Roughly 17,000 children aged 0-16
across the UK have a permanent hearing loss greater than 40dBHL
(IHR MRC Study 2001) (UK birth cohorts 1980-95).
— About 35% of deaf children have an
additional, compounding learning difficulty or sensory impairment,
the incidence of severe, profound and complex difficulties is
rising, in part because of the increased survival of premature
babies.
Our response to the consultation exercise follows
the structure set out in the document. But before moving on to
consider the individual questions posed, we would like to state
two things:
— RNID Cymru is fully supportive of
devolution and believes the prospect of devolving Additional Educational
Needs to Wales will be beneficial as decisions taken at a more
decentralised level in general are more responsive and appropriate
to need.
— RNID Cymru is happy to present oral
evidence to the Committee on any aspect of the evidence in this
response.
We would like to move now to answering your
questions regarding the LCO as set out in the consultation document:
1. To what extent might the transfer of functions
proposed have wider implications for the UK budget?
At this stage, RNID Cymru cannot foresee any
significant implication on the UK budget.
2. To what extent might the transfer of functions
impact on reserved functions; for example, would the transfer
of functions increase regulatory burdens on business?
We do not believe that the transfer of functions
will have an impact on reserved functions. This has been reflected
in the initial consideration given to the LCO in the National
Assembly.
3. Are there any cross-border issues relating
to the LCO? (Would legislation subsequently be required in England?)
Our anticipation is that the LCO would not necessarily
lead to the need for subsequent legislation in England. However,
there may of course be a case that the Assembly Measures which
arise from the LCO will have a bearing on how services are delivered
in England. Perhaps they might lead to a degree of replication.
Nevertheless, we do not foresee any immediate cross-border issues.
4. Would the proposed LCO necessitate the
formation or abolition of Welsh institutions and structures? If
so, where does the legislative competence to exercise such changes
lie?
RNID Cymru does not foresee that this LCO in
itself would lead to the formation or abolition of Welsh institutions
and structures. Of course, as with our responses to some of the
other questions, there may well of course be Assembly Measures
which arise from this LCO which will change structures in time.
If such a change were needed, and could demonstrate
support amongst stakeholders and politicians in the National Assembly
for Wales, then the LCO would presumably be broad enough to facilitate
such change.
5. Is the LCO request in the spirit and scope
of the devolution settlement?
The LCO request is entirely within both the
spirit and scope of the devolution settlement as set out in the
Government of Wales Act 2006.
The Welsh Assembly Government set out in The
Learning Country—Vision into Action, the intention to
"promote inclusion in education and learning" and to
introduce "an action plan in response to the recommendations
of the Education, Lifelong Learning and Skills Committee Review
of Special Educational Needs". This LCO is needed to enable
the Welsh Assembly Government to go beyond that pledge and to
then implement some of the changes arising from consideration
of the ELLS Committee report.
This competence will thus enable the Welsh Assembly
Government to bring forward measures for special educational provision,
children, young people and adults with additional learning needs.
The principle of different educational provision
for such individuals is already well established in law and practice
in Wales. As Carwyn Jones AM said when Minister for Education
introducing this LCO to the National Assembly for Wales:
"Having additional learning needs as the
subject of the first Legislative Competence Order is highly appropriate.
Policy in this area of education has been developed on a collaborative,
all-party basis for some time."i
6. Is the use of the LCO mechanism in accordance
with the Government of Wales Act 2006?
It is our judgement that the LCO is entirely
in accordance with the Government of Wales Act 2006. This view
is supported by many other charities in the disability field and
is clearly reflected in the early deliberations and consideration
of the LCO at the National Assembly for Wales at both Committee
and plenary level.
This is not the first time that the primary
legislative competence of the Welsh Assembly Government has been
extended in the field of education. We understand that previous
framework powers have already been extended to the National Assembly
in the field of Education and Training (field 5 within Schedule
5 to the Government of Wales 2006 Act) through the Education and
Inspections Act 2006.
7. Is the use of an LCO more appropriate
than, for example, the use of framework powers in a Westminster
Bill?
RNID Cymru does not have a fixed view that LCOs
are a preferable way to accrue legislative power for the National
Assembly when compared to framework powers in a Westminster Bill.
Indeed, in some cases framework powers might well be a quicker
process to devolve to the Assembly the tools to do the job of
reforming Additional Educational Needs provision in Wales. However,
there is no obvious Bill in the current UK Legislative programme
which could be expanded to include framework powers on Additional
Educational Needs. It is thus likely that on this occasion the
LCO route is the speedier option.
Further, it is heartening that the Welsh Assembly
Government has presented this LCO in the very first phase of the
devolution of primary law making powers to the Assembly. The Welsh
Assembly Government is attaching a priority to this LCO which,
we hope, will lead to its speedy passage through the many legislative
and scrutiny stages it must pass.
It is one of the first examples of what will
undoubtedly be a gradual accrual of powers to the Assembly within
the spirit and wording of the Government of Wales Act 2006.
8. The extent to which there is a demand
for legislation on the matter(s) in question?
There is clearly a demand for legislation on
the matters in question. This LCO proposed by the Welsh Assembly
Government is being brought forward in response to the work of
the Assembly's Education, Lifelong Learning and Skills Committee,
which concluded that substantial reform was needed to the Special
Education Needs system in Wales. In essence, the Welsh Assembly
Government has accepted the recommendations of that Committee
and taken them on board as its own.
The range of organisations who contributed to
that Committee review, and the congruence of their views, demonstrates
clearly that there is a demand for legislation on Additional Educational
Needs.
For example, the second phase of the ELLS Committee
review was on Statementing, and a consultation document was issued
which invited response. Over 100 organisations or individuals
responded. As well as RNID Cymru, organisational responses were
also received from: ii
— ASBAH- Association for Spina Bifida
and Hydrocephalus
— BATOD Wales - British Association
of Teachers of the Deaf Wales
— Bridgend County Borough Council
— Bro Morgannwg NHS Trust
— Cardiff and the Vale NHS Trust
— Cardiff and the Vale Parents Federation
— Ceredigion and Mid Wales NHS Trust
— Disability Rights Commission
— Flintshire Parents Partnership Service
— Mudiad Ysgolion Meithrin
— NAEAIC - National Association of
Education Advisors Inspectors and Consultants
— NAGC - National Association for Gifted
Children
— NAHT Cymru - National Association
of Head Teachers Cymru
— Neath-Port Talbot County Borough
Council
— North East Wales NHS Trust
— NUT Cymru - National Union of Teachers
Cymru
— Pembrokeshire and Derwen NHS Trust
— Penybont ar Ogwr NHS Trust
— Pontypridd and Rhondda NHS Trust
— RhAG - Rhieni dros Addysg Gymraeg
— Royal College of Speech and Language
Therapists
— The National Autistic Society
This snapshot is useful in demonstrating the
demand for legislation because these organisations did not respond
in order to argue services should be left unchanged—and
many of the changes which are suggested in the report need primary
powers to put them into effect.
It is also important to note also that there
is cross-party agreement in the National Assembly for Wales in
support of this LCO. Assembly Members clearly recognise that the
many organisations who lobbied during the Committee hearings are
keen for the Assembly to have the powers to see through the changes
necessary to support some of the most vulnerable people in society.
We believe that the terms of the proposed Order
are appropriately broad to facilitate an active policy agenda
on additional learning needs. This is what the bodies engaged
with the Education, Lifelong Learning and Skills Committee review
would expect. The scope of the LCO would allow a range of Measures
to be brought forward that could improve radically the lives of
many of the most vulnerable young people in our education system.
An Explanatory Memorandum produced by the Welsh
Assembly Government to aid the interpretation of this specific
LCO indicates a range of issues which could be addressed by Assembly
Measures following on from this LCO. This is helpful as a pointer
to purpose and application.
RNID Cymru believes that amongst the Assembly
Measures that could and should arise from this LCO would be Measures
to address Statementing and Specialist Schools.
Statementing: We agree with the Explanatory
Memorandum's reflection that "the formal system of statementing
is highly prescriptive" and that the Assembly should accrue
powers "to make fundamental changes to the structure of the
statementing process." RNID concurs with the views of the
Special Educational Consortium (SEC) iii that tensions and frustrations
that continue to exist around the assessment of and provision
for pupils with special educational needs. This was also reflected
in the recent work of the Education and Lifelong Learning Committee
of the National Assembly in its deliberations on Statementing.
Special Schools: RNID Cymru's expectation is
that the educational achievements of deaf children should reflect
their intellectual ability and match educational outcomes for
hearing peers, regardless of school placement. This aim can only
be achieved if expectations for deaf children are raised and the
quality of education available from the time of neonatal assessment
onwards through to further education is radically improved. RNID
supports the current practice of including deaf children in mainstream
schools, but only where parents want it and only when the process
is adequately resourced and supported. RNID Cymru believes that
a range of educational provision including special schools must
be maintained to provide families with real choice. However, the
level and type of support for deaf children in mainstream schools
should be driven by the individual needs of children and by the
choice of parents—not by the need of LEAs to reduce expenditure.
The gap between the best and the worst of what is currently available
for deaf children and their families is unacceptably wide and
the quality and type of schooling that children receive depends
far too much on where a family happens to live.
Any Assembly Measure brought forward to address
Statementing or Special Schools and educational location should
address these perspectives. We believe there would be broad support
for examining these issues once the LCO has been passed.
Thank you again for the opportunity to contribute
to this debate and I hope we can be of further assistance.
REFERENCES
i Record of Proceedings of the National Assembly
for Wales, 12 June 2007
http://www.assemblywales.org/bus-home/bus-chamber/bus-chamber-third-assembly-rop.htm?act=dis&id=56565&ds=7/2007_rhif6
ii National Assembly for Wales Education Lifelong
Learning and Skills Committee Policy Review of Special Educational
Needs: Part 2: Statutory Assessment Framework (Statementing) (May
2006)
http://www.assemblywales.org
iii The Special Educational Consortium is convened
under the auspices of the Council for Disabled Children to protect
and promote the interests of children and young people with special
educational needs and disabilities. SEC provides a policy forum
on issues affecting children and young people with special educational
needs and disabilities. SEC is a broad consortium consisting mainly
of voluntary organisations but including professional associations
and local government organisations as well. SEC defines its policies
by identifying areas of consensus that exist among the wide range
of groups represented within it.
28 September 2007
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