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Q 54Tim Loughton: On the basis of the need to assess outcomes rather than just processes, do you think that as the clauses are framed, we could give Ofsted greater responsibilities and requirements, but that it could still be inspecting the wrong things effectively?
As a result of Ofsted having that additional responsibility and focus, I hope that it will drive and change the culture in schools. The issue is not so much the measures themselves; to use the now trendy jargon of nudges and signals in the system, the inquiry saw the measures on Ofsted as being very much about providing a big nudge to the system in terms of what heads and school leaderships actually focus on. I have been very encouraged to see how much school heads are coming back to the voluntary sector and asking, “What is good practice? What do we need to do to become a good school on this issue?”
Q 55Mrs. Ann Cryer (Keighley) (Lab): Over the past 30 years, many parents have come to me about all sorts of disagreements. They may not have got a statement or the statement may have been accurate; in one case, the parents felt that there was nothing wrong with their child and that she should not have been statemented. I have therefore worked a great deal on such cases. Will anything in the Bill change things so that it will be up to the MP to take such cases up, as I have in the past? Other MPs may not have the time or initiative to do what I have done, and that worries me. If it falls to the MP to deal with the problem, what will happen if the MP will not do that? Will anything in the Bill protect people from the problems that I have had to sort out for my constituents?
John Friel: No. I do not think that there will be a substantial change in the situation that you describe. People always have difficulty enforcing their rights. The point about the 1993 amendment is that it created the ability to get an independent view. Mr. Lamb’s inquiry is suggesting an increase in appeal rights, which has been long needed. It should have been introduced in 1993 and certainly by 1996, and the need for it has been pointed out since then. There should be an extension in appeal rights.
I am a good example, but my dyslexia is not significant. I have children with very severe dyslexia indeed, but genetically you simply can’t tell. Many parents we meet are very clever people. One of my closest friends is a judge in Australia and his wife is a consultant, but both their children are significantly autistic and are not going to be anywhere near as bright as their parents. But many parents have difficulties with literacy and with handling pressure and stress. We are there to help in whatever way we can those people that approach us. I cannot see that changing.
Q 56Annette Brooke (Mid-Dorset and North Poole) (LD): May I backtrack for a moment before coming to the main point? Like Tim, I picked up the point, Brian, when you said that we need a really adequate reform, yet the Bill makes only two proposals. Looking through the summary of your recommendations, we can see a lot about culture and a lot of things that one can do locally, but I focus on exclusions, noting the comments made previously. Is there not a case for including something on exclusions in the Bill? It is such a critical part of the problem.
John Friel: Legally, yes. Exclusions are dealt with by another Act. As I pointed out in my short note, SENDIST deals with everything to do with exclusions apart from the final exclusion.
The independent appeal panel deals with exclusions. Brian’s point about independent appeal panels or the school having to consider making reasonable adjustments for the provision they are making is overall far too late, as I have said. Also, it does not really belong as a separate issue in a different Bill. It should be in this Bill. If people are going to look at exclusions, they should be looking at preventing exclusions, but there should be a consideration for exclusions in the main Bill rather than in a satellite Bill, because it is a major issue.
Brian Lamb: Could I wrap your question up with a previous one? This is a debate about what you need to do in legislation and what you don’t. In the inquiry, we clearly considered that in some detail. Sometimes it can be as radical trying to do things outside legislation as it can doing them from within. I say that as someone who has spent 25 years lobbying on getting more legislation. It is about where you strike that balance.
In one sense, it is not that we are short of legislation on SEN. We have the framework, we have the Disability Discrimination Act, and we also have the Every Child Matters framework. What we proposed in the inquiry in other areas—again, the Government have said that they will implement it, and I look forward to the implementation plan—is this. Taking first the issue of statements and needing to get a statement and appeal, I agree with you that there is some downward pressure on that in the Bill. Appeals should make that function better, and therefore make it more attractive to get one to some extent.
But we come back to the situation that, on the whole, it would be even better if parents could get what they needed without having to go through the whole statutory framework and process. There are a number of recommendations in my inquiry to help achieve that, in terms of putting a greater focus on SEN in schools.
Indeed, coming back to the Bill, I hope that the greater focus by Ofsted on what makes a good school and what makes good outcomes will mean that the support that parents need in school is much more routinely available in the first place. When they do have to go for a statement, I propose that there should be a national information service. That should also help give the kind of support that you are looking for. If there are problems with local authority provision on that, I would encourage the Secretary of State to use his or her powers to look at the information that the Government now have, holding local authorities better to account if they are failing in relation to those measures.
The Government have also agreed, as a result of measures in the Education and Skills Act that went through last year, that parents will now be able to take complaints to the local government ombudsman, as they have put more money into that. These are all measures that put more pressure on sorting things out—either getting the right provision in the first place; or, if a statement of need is required, that there is more support for parents. Mr. Friel referred to the organisations that do that.
There is also national support for parents provided by, but independent of, the Government. I have also made recommendations about an enhanced role for parent partnerships, which makes it clear that they should be more independent of local authorities that they have been until now, and something that looks at the whole concept of neutrality—previously, neutrality seemed to be interpreted as the role of the herald in Henry V, and you kept the score for both sides. However, we need to be sure that neutrality is about operating within the law and the framework.
Coming to your point about exclusions, we looked at it and agonised in some depth. I partly take John’s point that by looking at the role of exclusion panels, we are only addressing part of the issue, which I think is absolutely right. That is why I also made a recommendation, which I believe was accepted, that when the statutory guidance comes out on behaviour partnerships, there should be new statutory guidance on local authorities and on schools about the measures that they need to take to reduce differential exclusions between SEN and other children. That will be a statutory measure that will also put a downward pressure on exclusion.
Also, changing the culture in schools, to make them more welcoming to and more focused on SEN and looking at the reasons why behavioural issues occur and how much they are related to SEN, should also help enormously. Again, it is a package—some legislation, some good practice.
John Friel: I think that there is a need for more legislation and less attendance on practice. May I point out the leading cases on specificity of statements on my responsibility? They have been the law for many years, so a great deal of the system that is going to be downward pressure has been known about.
There are some good proposals, and I am not here to attack any of them and say that they are not good—they are. However, one has to realise that the proposals that have existed for a great deal of time have not been effective and are not going to be any more effective because you repeat yourself.
Twice after winning those cases, guidance was re-issued by the Ministers when we went to them—Lord Adonis and Eric Forth—and the effect has been, as Mr. Lamb describes in his inquiry, relatively innocuous or not at all. There is a much greater need for creating a greater supervisory system and greater rights. On that, I am afraid that we would respectfully disagree. In trying to make the Bill work better, I believe that we both agree largely on the major issues.
The Chairman: Annette, do you want to come back?
Q 57Annette Brooke: I think that the right of appeal by the parent is all important, but I am not clear on what grounds the parent might appeal. I am worried that it would just end up with the local authority essentially not providing something because it would be too expensive—that comes to the separation point—and the parent obviously wanting more resources. Should there be something clearly set out?
John Friel: That is right because the annual review is governed by regulation at the moment. There is a statutory provision in subsection 5 of section 328—I have the legislation here with me if I make a mistake by memory—there is no time limit on a statement, nor is there one in the review. What the review regulations do is make everyone else behave within a certain timeframe, but the authority does not have to decide. That leaves an amendment by the parliamentary draftsmen or yourselves, because the proposed provision needs to have a time limit on it. I would suggest a maximum of eight weeks, which is the maximum period the regulations allow for a proposed statement. At the annual review, either the parents or the school must recommend or ask for an amendment to the statement, because a right of appeal being created when no one wants an appeal is otiose.
The drafting of that particular section needs to set a time limit and provide for either the parent or the school to request an amendment to the annual review—if the local authority considers that there will an amendment, it will of course make it anyway. There needs to be some tighter drafting on that particular clause, because at the moment, as it is, there is a great deal of complaints to the Secretary of State or the High Court about refusal to amend statements. The local authorities answer, “Well, there’s no time limit.” I quite regularly see cases where it takes over a year. No decision is made before lawyers threaten legal action, and then a decision is made. I have seen cases where it has taken two years.
Something needs to be in there. Mr. Lamb’s suggestion—which, may I emphasise, is very much needed—needs to be firmed up in a sensible manner. It is obviously not the role of the Lamb inquiry to do the drafting, but the drafting as such is not good at the moment.
Q 58Mr. Coaker: I very much agree that it is not always legislation, as both Mr. Lamb and Mr. Friel have said. I just wondered while working on clauses 7 and 8 whether both of you would like to comment on some of the points made about the pupil and parent guarantees. They lay out specifically some of the expectations that parents would have of a school in dealing with the special educational needs of their son or daughter.
Similarly, the pupil guarantee lays out—we were just discussing exclusions—what the expectation of a school would be, for example, with respect to exclusions and special educational needs. What is your view, given that the guarantees lay out specifically, although not in legislation, what the expectation of a school is in terms of what should be provided for the child and what the parent can expect?
On redress from the local government ombudsman as a last resort if that is not provided in a state school —I emphasise “last resort”—do you have a view whether that is a good thing and will be a good way forward in ensuring that schools’ special educational needs provision is not so variable?
Brian Lamb: Certainly in terms of the inquiry, one of the big themes was the level of variability that we found. Sometimes that can be good, because it reflects local circumstances and local populations. I do not think that we should necessarily expect all schools or local authorities to have the same rates for things such as the number of children statemented, because that will change depending on populations.
Nevertheless, some types of variability are bad. The lack of focus on SEN in the past has been bad when it has been about variability. In broad terms, we very much welcome the guarantees and the attempt to put down a framework in which parental expectations can work. What has been said in the consultation document is also helpful. One of our key questions was about the relationship between the guarantees around additional support, especially, and SEN. Having seen the consultation documents, I think that it is clear that nothing in the guarantee would in any way cut across or undercut the commitments made in terms of the level of provision that the SEN framework would prescribe.
I hope that we will go further in looking at the guarantees as they are worked up. One issue that we face as a nation is the growing identification of children with SEN. Some of that clearly has to do with trends in the population involving better identification of autism and similar factors; some of it, as Sir Alan Steer pointed out in his review, may be because when children fall behind there is an over-quick reaching for the SEN label. It may well be that those children should be identified with SEN; it may be that sometimes that label is reached for more quickly. In a way, I do not care, and I do not think that schools should care. The issue is whether a child is performing or falling behind, whether we can identify the reasons and whether we can address it. The school guarantee is a good way to begin to do so.
In terms of parental confidence and involvement, it is absolutely excellent. Although you do not give it this title, in the inquiry, I recommend something called a co-offer for parents of SEN children. It involves a number of principles of transparency, involvement and, wherever possible, face-to-face communication in the education of their child. Although the school guarantee is not called that, some of its requirements relating to the level of parental involvement very much exemplify what we were looking at when we talked about the co-offer. We might want to dig a bit deeper on how we can extend even further the richness of what is going to be offered around the guarantee, especially for when children fall behind and how that relates to parents’ involvement when they have a child with SEN. I think broadly the framework is a really good approach in delivering that.
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