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Baroness Farrington of Ribbleton: From these Benches, we too congratulate the noble Baroness, Lady Darcy (de Knayth) on her presentation of the amendments and the way in which she has probed the Government on their intentions in this area.
Many of the points which need to be made have been made already by previous speakers. In particular, I wish to support the points made by my noble friend Lord Ashley. It is extremely important to recognise that the first hurdle is by far the greatest hurdle for students with disabilities.
All human beings tend to under-achieve their maximum potential. But the ability of those with severe disabilities, many of whom have been denied access to mainstream education, to achieve degree-level status in the courses which they follow once they reach university has been proven time and time again.
In speaking to these amendments, in particular I should like to endorse the reference made by the noble Baroness, Lady Darcy (de Knayth) to non-statemented special needs. That is a category of special needs which has often been overlooked and which is unprotected by the statementing procedure. Among that group of potential students there are many who are falling far short of the opportunity to achieve their full potential.
From these Benches, we welcome the new Part IIIA, which puts education on the face of the Bill. But we still have a deep anxiety that the fundamental civil rights of those seeking the right not to be discriminated against in the provision of education are not being addressed by the Government. It would be churlish not to recognise that the Government have moved their position. However, we shall read extremely carefully the Minister's justification for not including education in full as a service.
I have heard the Minister speak on several occasions about the difficulties and the costs. I can do little more than echo the words used in a previous debate by the noble Lord, Lord Campbell of Croy. He said that the whole content of the Bill deals with and stresses the fact that the justification is that reasonable action is taken and that reasonable decisions are made. The principle of the Bill, based as it is upon that concept of what is reasonable, surely cannot be denied in relation to such an important route to full participation in life as the access to education.
As I said, we believe that the Government have moved. We hope that they will move further. We look forward to hearing and reading in detail the Minister's response. But we may perhaps return to the matter on Report.
Lord Mackay of Ardbrecknish: I am sorry that the audience appears to have vanished from the Chamber. Indeed, I was rather looking forward to performing to a full Chamber for the next half hour or so. But, there we are, I shall have to make do with the season ticket holders, if I can so describe those Members of the Committee who are usually with me during the long hours on the Bill. I am delighted to see that the noble Lord, Lord Ashley, has returned to the Chamber. I was somewhat worried because I was deprived of the chance of responding to him on his previous amendments. I thought that we had, perhaps, lost him overboard. However, I am delighted to see that the noble Lord is back in his place and pushing me as hard as he can.
Unfortunately for the noble Lord, Lord Ashley, my attention was drawn to an interview that he gave in the BBC's, "See, Hear" programme earlier this year, when he spoke to a Canadian MP, who I believe was deaf. I suspect that the noble Lord gave the game away on that occasion. However, the noble Lord allows me to look at and listen to his speeches and they give me a slight feeling that he is trying to push me further than he expects, or even wants, me to go. The noble Lord said:
Therefore, in future, when the noble Lord tries to appeal to my conscience and I knock him down, I shall not feel as guilty, because I shall realise that that is not just what he expects but that he will probably think that the position we arrive at is a reasonable one.
I should say first of all that I am grateful to the noble Baroness, Lady Darcy (de Knayth), for agreeing that her two amendments and mine should be in the same group. I thinkespecially given the hourthat that prevents our having two debates reasonably close together where we would have covered almost the same ground. I hope she will accept my thanks because if this had not happened I would then have had to make two long speeches. That is all right for me but the Committee might have found the sound of my voice a little wearing by the end of the evening.
We have considered carefully the arguments both in this Chamber and in another place, and indeed the discussions which have gone on outwith either Chamber, for including further and higher education within the scope of Part III of the Bill. I reassure the Committee that we place a high priority on widening access, but we must consider the practical effect of including further and
I recognise of course the appeal of an argument which cites the difficulties experienced by some individuals under the current arrangements and suggests that were further and higher education to be included within Part III of the Bill these might be overcome at a modest cost. First, while the cost of some alterations may be modest, in aggregate they will be significant and will consume resources which might be spent to even greater effect as part of a coherent programme. Certainly, it would be a delusion to believe that resources will be available to fund both approaches. And the view that such changes may be contained in regulations, perhaps under Clause 14(4) or 15(6), is mistaken. Those regulation-making powers refer to circumstances in which a provider of services is to be taken to be justified in treating a disabled person less favourably or to circumstances in which it is not reasonable for a provider of services to have to take steps. How is one to describe such circumstances, given the diversity of curricula and practices, the range of resources available to institutions, and the current state of adaptation of buildings? The regulation-making powers reflect, rightly, a different approach and are not intended to cover the situation where the funding councils play a strategic role.
I know there is an argument that the threat of court action will ensure that laggard institutions will become more responsive to the needs of disabled people. If the aim is to secure access, the existing complaints procedures in FE, strengthened by the government amendments, will give the further education funding councils the power to ensure that colleges make available adequate information and the provision set out in them. The councils' planning and reporting arrangements, also strengthened by the government amendments, provide a complementary security at national level.
In proposing her amendments the noble Baroness, Lady Darcy (de Knayth), asked for reassurance about the disability statements in FE. FE colleges and the councils already demonstrate the progressive improvement in facilities. I anticipate that statements on the part of the colleges will show further improvements. I wish to emphasise to the noble Baroness that FEFC annual reports are not just retrospective, they are also prospective; in other words, they look at the plans for the future. Before I leave the amendments I should say that some of the points the noble Lord, Lord Rix, made are perhaps more relevant to Amendment No. 149 which is not to be taken today and will be discussed on 27th June. However, I shall certainly bear in mind the points he made.
Against the background that I am afraid that I cannot accept the amendments in the name of the noble Baroness, I wish to explain our proposals for addressing what we accept is a problem to which we should attempt to find a solution. Therefore, I should like to explain the thinking behind the government amendments and the way in which they build rationally upon existing provisions.
The Further and Higher Education Act 1992 set out the framework for further education for students with learning difficulties and disabilities, which I am assured is referred to as SLDD. As I remember from my sojourn in it, the world of education is littered with acronyms. The Act requires the further education funding councils to act in a strategic manner to secure sufficient and adequate provision of further education, taking due account of the needs of the population in terms of location, equipment, aptitudes and abilities. They have particular responsibilities in respect of students with learning difficulties and disabilities.
The FEFCE has set in place three complementary mechanisms for discharging that comprehensive legislative duty. First, it requires colleges to submit strategic plans, including analyses of local needs. Secondly, the council's funding methodology has been designed to take into account the particular needs of students with disabilities. Thirdly, the FEFCE's inspectorate includes a specialist team with specific responsibilities for reporting on the quality of provision for disabled students in FE sector colleges and also that funded by the FEFCE in the independent sector.
Of course, we recognise that these mechanisms are still bedding in: but the FEFCE is not complacent. It has demonstrated its responsiveness by adjustments to the recurrent funding methodology for the next academic year so that colleges will be able to claim up to £8,800 per student (and more in some cases) to cover a wide range of additional costs arising from the education of students requiring extra support.
The council has conscientiously tried to plan for the longer term through its committee on learning difficulties and/or disabilities. That committee, chaired by Professor Tomlinson of Warwick University, has been assiduous in collecting evidence from all with an interest in education and disability issues, in seeking the views of disabled students and in trying to map the true extent of need.
The FEFCE's commitment to the needs of students with learning difficulties and disabilities is clear. It builds rationally on the legislation to secure the most effective use of resources which, as we allor at least some of usacknowledge, are finite. We all wish to see them used to secure real gains for students with disabilities.
I turn to Amendment No. 91. Subsections (1) to (3) would place a duty on the funding councils to require individual colleges to produce, as a condition of grant, information on their facilities for education for students with disabilities. We envisage further consultation with the councils prior to prescribing the frequency and content of the statements in regulations. Information is likely to include physical access, the provision of specialist equipment, facilities which may help students with particular disabilities, admission policies, counselling and welfare arrangements.
I envisage that that amendment will highlight the good practice already in existence in many colleges in the sector and encourage other institutions to emulate it. It will also help students with disabilities to make informed choices about further education. Moreover, not only will they know what they are entitled to expect, they will also be able to seek redress from the councils on the rare occasions when provision fails to meet expectations
Subsection (4) of Amendment No. 91 builds upon the strategic role of the further education funding councils. This will place a duty on the councils to produce an annual report to the Secretary of State on the progress made during the year in the provision of further education for students with disabilities and the councils' plans for future provision. We envisage the FEFCE drawing on existing review and planning mechanisms as well as the new information generated by the first amendment and the work of the Tomlinson Committee.
My noble friend Lord Campbell of Croy asked me about the position of Scotland. Indeed, he noted that the amendments apply only to England and Wales. As regards further education in Scotland, colleges are already required by statute to submit development plans which include information on the provision made for students with learning difficulties and disabilities. This information is used by my right honourable friend the Secretary of State in preparing his annual report to Parliament. Ministers propose in future to make it a condition of grant-in-aid that information on such provisions for students on special programmes and students receiving extended learning support be included in the annual reports that colleges are required to produce.
Although no one asked me, I am sure that Members of the Committee will be interested in the structures and funding mechanisms for further education in Northern Ireland. It means that the changes proposed in England and Wales cannot be applied directly in Northern Ireland. Ministers will, however, consider the proposed further education amendments when detailed legislation is being prepared for the incorporation of further education colleges in Northern Ireland. The FE and HE charters for Northern Ireland, which will be published later this year, will contain a requirement for colleges to make available information on disabled access. Existing powers will permit the Secretary of State to attach conditions to the payment of grant, and it is his intention to do so. I hope that that answers my noble friend Lord Campbell of Croy.
In the case of higher education, subsection (5) of Amendment No. 91and its parallel in Amendment No. 92 in the case of Scotlandstrengthens, by putting a duty on the funding councils, the present position which is that the Secretaries of State give guidance to the funding councils that they should have regard to the needs of disabled students. In responding to that guidance, the funding councils have undertaken various initiatives which have been welcomed by the sector. Subsection (6) of Amendment No. 91 ensures that disabled persons and the funding councils have access to information about what provision is available.
In respect of subsections (5) and (6) of Amendment No. 91, and the points made particularly at Second Reading by my noble friend Lord Beloff, I can assure Members of the Committee that we have taken very seriously the commitment we gave to consult higher education representative bodies.
Those bodies saw no difficulty with subsection (5). However, as the noble Earl, Lord Russell, explained to us, both today and at Second Reading, the ideas underlying subsection (6) caused some difficulty. It was indicated in another place that it was originally intended to give the Secretary of State an unambiguous power to require the funding councils to require disability statements. That generated much discussion.
In order for the originally intended power to be unambiguous, we concluded then that it would be necessary to qualify Section 68(3) of the Further and Higher Education Act. That is because Ministers are barred by that section from framing terms and conditions of grant with reference to courses, staff and admissions, and it might be held that requiring information about provision for disabled persons would fall foul of that. However, the representative bodies, supported eloquently by the noble Earl, Lord Russell, argued strongly that Section 68(3) should remain untouched. I gather that some Members of Committee have a special affection for that section, as I suspect that my colleague at the time suffered the same fate at the Dispatch Box as I suffered a little while ago. I appreciate that noble Lords are sensitive about their victories over Government when there are suggestions that the Government might make changes in their previous victories. Therefore we sought an alternative route.