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Baroness Warnock: I rise to support what has just been said and to express my particular support for Amendments Nos. 7 and 9 in this group. One of the main aims of the Bill is to enable children to have personalised learning, which would entail local authorities having a statutory duty to ensure that the services are available. I am thinking in particular of services such as speech therapy which cannot be supplied by the regular teacher, however well trained. At the moment it lies in an ambiguous area because local authorities often claim that they cannot ensure the provision of speech therapy that children urgently need.

Communication difficulties can be the most terrible obstacle for those children with severe disabilities in this area being educated in mainstream schools. Without learning the skills of communication, they really cannot possibly fulfil their educational potential. This is an example of where a statutory duty on local authorities to enable a child,

is a matter of crucial importance if the Government’s general policy is to go forward. I strongly support Amendments Nos. 7 and 9.

Lord Lucas: I should like to take this opportunity to explore what the Government currently understand by the words “educational potential”. How broad a definition of “educational” are they intending here? Do ball skills come under education, or is it merely being able to get through the numeracy hour that counts as education? What boundaries do the Government currently set on this? What do the Government mean by “potential” and how is a school or local education authority supposed to assess it? What instruments are to be used and what measure may an LEA apply to say “Yes, we have done this. This child has fulfilled their educational potential.”? If we are putting a duty on authorities, we must give them some ability to know that they have fulfilled it. However, I do not really see how it can be done.

Lord Northbourne: I am confused and should like some guidance from the Minister. My first point concerns Amendment No. 1, tabled by the noble Baroness, Lady Buscombe, on primary duties. I am not entirely clear what a primary duty is. The Education Reform Act 1998, which I regard as an important anchor point indeed for the educational system, states that the Secretary of State, the local education authority and/or the governing body have to,



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I think that that is a supremely good definition of education. Would Amendment No. 1 in any way change the emphasis? Would that definition remain in place if Amendment No. 1 were accepted?

Secondly, I entirely support the noble Baroness, Lady Buscombe, in asking the Minister whether he will kindly give a clear definition of fair access. Is fair access going to be defined in regulations? If it is, could we please see a draft of the regulations or have an idea of what they will say? I am not suggesting that there are not reasons for having a general, sweeping idea of fair access, but it will be very difficult when it has to be applied. There are not and never will be infinite resources for education, and choices therefore have to be made. Gifted children, for example, concern me very much. What is fair access for a gifted child? Is it simply fair access to a more or less “bog standard” school, or is it access to a school that will stimulate that child and cause him to succeed and fulfil his potential? I believe that nearly all children—not all children, but nearly all children—thrive on competition provided the competition is such that they can succeed at least from time to time. That inevitably implies that children must learn alongside other children of more or less equal ability and who have received more or less the same training and experience in life to give them a chance to be able to compete and to stimulate one another to succeed.

How will that be secured? In very large schools, it may be possible to secure it by having forms of streaming and dividing into different sectors within the school. However, we have at home, in a house belonging to my family, a small school. At the moment it has 12 pupils and is thinking of increasing the number to 18. These children have a very special need and cannot cope in a big school. They have failed in a big school—they have been a disaster in a big school—whereas they are doing very well in this small school. Small schools cannot provide for a huge range of academic ability.

What about ability in subjects that are outside the academic curriculum? I know of two children who have quite exceptional musical ability. What is fair access to schooling for a child who has quite exceptional musical ability? These are the kinds of question that have to be answered, and I think we need to know the kind of answers that the Government are going to give.

Baroness David: I should very much like to support the amendment tabled by the noble Lord, Lord Judd. It seems strange that we do not have such legislation already. I very much hope that the Minister will be able to support it and put it into the Bill.

Baroness Darcy de Knayth: I should like to say a brief but warm word of support for Amendments Nos. 6 and 9 in the name of my noble friend Lord Rix. Amendment No. 6, whether we use the words “fair access” or not, would ensure that parents of a child with a statement had the same rights of access to an academy as they do to any other publicly funded school, which is surely right. I particularly warmly support Amendment No. 9. My noble friend

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has explained very clearly the value of these support services, which offer training and advice. I feel that they are crucial, perhaps particularly regarding autistic spectrum disorders. Many teachers do not really understand the problems surrounding these disorders and it is only when the support services come in and give hands-on support and training that they realise how to deal with them. As the noble Baroness, Lady Walmsley, said, her Amendment No. 183 will also come from the other side in dealing with the problem, in that it will ensure that teachers at all levels will have an understanding of special educational needs.

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Baroness Howarth of Breckland: I support Amendments Nos. 6 and 9. In listening to the noble Lord, Lord Northbourne, I remembered how extraordinarily complex this issue is. While I do not necessarily agree with the implications of some of his comments, I hope that through discussion of this Bill we give some thought to implementation as well as the principles of fairness and access. I am acutely aware that while I stand here and we discuss access and the needs of such a wide range of children and abilities, there are large numbers of youngsters who simply cannot get a statement. They are excluded from getting what now they should have by right by a series of different interpretations of varying guidelines. I hope that in the course of the Bill’s passage we not only think about what we aspire to, but work towards what we should already have on the ground.

Baroness Williams of Crosby: I follow what the noble Baroness has just said and commend it very much to the House. I am sorry that we have not been able to take Amendment No. 1 with Amendment No. 3, in the same discussion, because Amendment No. 3 puts particular emphasis on the well-being of children and matches it up with the substantial objective of fulfilling children’s educational potential. Because we have not taken them together we perhaps do not draw sufficient attention to the point made by my noble friend Lady Walmsley—that the issues of well-being and fair access are very much part of what one wants to see in an educational system. One difficulty with the amendment of the noble Baroness, Lady Buscombe, is that it puts almost the entire emphasis on the issue of academic standards and of potential being fulfilled, in that rather specific and somewhat limited sense.

We live at a time when our schools are rightly continually driven to higher academic standards, but also when having league tables and the business of testing and examination lead to the great danger that we may leave out a large number of children who, when they have been left behind in primary school or the early stages of secondary school, gradually become more and more incapable of competing and holding up with the rest of the school community, as the noble Baroness and the noble Lord, Lord Rix, have implied. We must give great attention to

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statemented children, but also to a whole group of children above them who for one reason or another may find themselves bewildered by or not engaged in schooling—the children who do not get five GCSEs and so find themselves gradually drifting backwards. That is a group who are doing badly in our education system.

One other thing that I want to say relates to the well-being of the child. We live at a time when, socially, there are huge pressures on children. I am sure that we are all aware of the real distress that many children go through—in the most extreme case because they become carers for their own parents or, in less extreme cases, because their families have broken up or they have been moved frequently throughout their young lives, when the emotional strains on them are very great and it is difficult for them to cope. There is a real danger in the present structure of our education system, with its tremendous emphasis on passing a whole steeplechase of tests and exams, that we will lose sight of some of these personal difficulties that children face. That is where Amendment No. 3 and my noble friend’s Amendment No. 7 could put emphasis on some of the other factors that stand in the way of children properly learning.

The noble Lord, Lord Rix, referred to problems of concentration for some children, which is becoming more striking among not only children with learning difficulties but those with other reasons why they find it difficult to concentrate, which may be related to their home circumstances, or to a very mild form of Asperger’s or other things of that kind. Will the Minister give us some view of his understanding on the balance between these very significant and important objectives for education—on the one side, academic attainment and, on the other, the well-being of children? How, by looking at the issue of personalised education, can one go much further to help children at a very early stage to understand learning difficulties and emotional problems that may stand in the way of their attaining their full potential?

Baroness Buscombe: I did not mention the word “academic” at all. I suggest the noble Baroness reads the amendment again to note that I am talking about the need to promote high standards and the fulfilment of the educational potential of everyone concerned, which might not mean academic potential at all. We are talking about the whole broad spectrum of the educational front. In putting down this amendment I have not sought to talk about the academic side. I am talking about that individual child’s educational potential.

The Earl of Listowel: I support Amendment No. 9, tabled by my noble friend Lord Rix. I hope I have understood him correctly. A report, The Costs of Inclusion, was published in May this year by the University of Cambridge’s Faculty of Education. It was commissioned by the National Union of Teachers concerning inclusion in schools. Its final words are:



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The report says that it is clear that many teachers will still carry an unsustainable workload, and that: I strongly support my noble friend’s amendment.

Lord Dearing: I shall speak briefly in support of the two amendments of the noble Lord, Lord Rix. These young people with special educational needs are the ones who should concern us most. I believe they concern this Government very highly, and the Government have made that clear in introducing their White Paper. I therefore hope the Minister will be able to respond positively.

Lord Adonis: These amendments all relate to the fundamental duties on local authorities in Clauses 1 to 3 to promote fair access and the educational potential of all children, including those with special educational needs. They therefore go to the heart of the purposes of the Bill, and indeed the purposes of education at large. They are a very good place to start in our deliberations.

This Bill should also be seen in the context of the Childcare Bill, which some of us have spent a good part of the past two months debating, and which goes to the heart of the welcome comments by the noble Baroness, Lady Williams, about what we are seeking to do in our education system. There is no end point. We will never reach a stage where we believe the full educational potential of the entire cohort of young people has been realised. That is something we are working towards, but it will be a long road.

We are seeking to promote both higher academic and educational standards and much more intensive support, within the education system and services provided by the state at large, for the wider social, emotional and physical needs of children and their families. That is encapsulated in the work we are doing in childcare: the development of this whole new area of the welfare state in under-five services, and the ambition that every community should, as in Scandinavia, have its own under-fives’ centre that focuses on precisely the early identification of needs that the noble Baroness mentioned, and tackles parents’ needs in terms of additional support right at the beginning of a child’s life, so that you embed at the beginning of the process the support that they need to succeed. The Bill needs to be seen in a holistic way in conjunction with what we are seeking to do with childcare and the wider Every Child Matters agenda.

Amendment No. 1, moved by the noble Baroness, Lady Buscombe, would, as the noble Lord, Lord Northbourne, noted, introduce a new formulation of Section 13A of the Education Act 1996, entitled:



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in addition to a different new formulation of Section 13A, entitled simply: which the existing Clause 1 would add. I am not clear whether the noble Baroness intends to create this hierarchy of duties, which would in practice be confusing in view of the overlap between the two sets of duties, but that is not the issue. The issue is the substantive points that she is raising about the content of the new proposed duties.

The most notable difference between Amendment No. 1 and what is in Clause 1 is that it would remove our proposed duty on local authorities to ensure fair access to educational opportunity. I understand from what the noble Baroness said about her anxiety on the promotion of diversity that this may be based on her and her colleagues’ concerns that the fair access duty could be seen to favour community schools over other categories of schools, or to imply a forced introduction of banding or other mechanisms by a local authority, which would be highly controversial in the context of individual schools.

I hope that I can provide reassurance on both points. The fair access duty in Clause 1 applies in the context of all local authority functions relating to the provision of education. There is no case whatever for it leading to local authorities favouring one type of school over another. Indeed, one of the implications of fair access is that local authorities should be entirely fair minded in their approach to all suppliers of education in their area and not seek to favour one over another.

All admission authorities, which include local authorities themselves in respect of community schools, will by law have to act in accordance with the new stronger school admissions code, whose aim is to promote fairer access than often applies at the moment. Local authorities will continue to be required to publish admission arrangements for all maintained schools in their area, and to work with the governing bodies of all schools which are their own admission authorities to ensure fair admission arrangements. That is another aspect of their duty to promote fair access. There is no implied power whatever for local authorities to use the fair access provision to favour community schools over other schools.

The noble Baroness and her colleagues are also concerned about banding. Local authorities will not be forced to introduce banding in admission arrangements, although many may choose this option to promote fairer access to educational opportunity in pursuit of their duties under Clause 1. Neither will local authorities be able to force community schools to introduce banding—I know that is another concern of the noble Baroness—as we intend to table a government amendment, in response to concerns raised in another place, that would require the agreement of a community school’s governing body before banding could be introduced at that school.

I fully accept that fair access is ultimately a matter of judgment which local authorities will have to make; it could not be otherwise. There is no single

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yardstick of fair access. It is a judgment not only about admissions procedures but about the allocation of resources which go to the heart of decisions that local authorities have to take month in, month out. The important point about Clause 1, which replaces the existing duty for local authorities simply to provide sufficient school places, is that local authorities should be required to make that judgment and to explain it openly in their communities, whereas there is no such obligation at present.

I turn to the amendment of my noble friend Lord Judd. In passing I pay tribute to the Joint Committee on Human Rights, which rightly obliges us to give very careful consideration to all issues which have implications for human rights. The noble Lord and his colleagues do sterling work in that respect. I will reflect on what he has said. As always, he made a very powerful case. However, as he said, I have written to him setting out why we believe that there is a legally enforceable right to school education for every child at the moment. Inevitably, because I have been writing to noble Lords, I shall summarise the arguments that I have made in those letters, which have been played back to me in noble Lords’ remarks. I hope that he will forgive me if I do that to put it on the record.

The right to education is guaranteed by Article 2 of the First Protocol of the European Convention on Human Rights, and for children by Article 28 of the UN Convention on the Rights of the Child. The United Kingdom is a party to both of those, so these rights hold force in all parts of the United Kingdom. As my noble friend recognised, Scotland has gone down the further course indicated by him in its statutory provisions. We do not believe that there is a need for us to do so in England because existing legislation and case law achieve the same purpose.

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In the recent case referred to by my noble friend which was considered by the Appellate Committee, the noble and learned Lord, Lord Bingham, set out fully how the responsibility for ensuring that education in England and Wales fulfils the convention rights, based on what Lord Wilberforce, in an earlier judgment, had called the fourfold foundation. First, there is the duty of parents under Section 7 of the Education Act 1996 to cause their children to receive efficient and suitable full-time education either by regular attendance at school or otherwise. Secondly, there is the Secretary of State’s duty under Section 10 of the Education Act 1996 to promote the education of the people of England and Wales. Thirdly, there is the requirement on local education authorities under Section 13 of the Act to secure that efficient education is available to meet the needs of the population of the area in question. Fourthly, there is the fact that all state schools are under the direction of a governing body which must conduct the school with a view to promoting high standards of educational achievement. Taking those four together, they achieve the fundamental right to education that my noble friend wants.



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My noble friend has also raised separately the issue of the right to education for children who are informally excluded from school. Under Section 19 of the 1996 Act, a local education authority must make arrangements for the provision of suitable education at school or otherwise for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. The Government take this duty further in the Bill by adding a new duty on local authorities, to which we attach considerable importance, to identify children who are missing from education. In my time as a Minister, that has been one of the most concerning aspects of educational provision that has come my way, including some very concerning Ofsted reports on the way in which local authorities seek to identify those who have slipped through the net entirely in terms of educational provision. That is also part of the reason why we support, against the concerns that have been raised elsewhere, the information-sharing database, which will ensure that local authorities have comprehensive data on the children in their area so that they can ensure that they are placed at and attend a school.

The duty is encompassed in Clause 4, which places a duty on local authorities to make arrangements to enable them to establish, so far as it is possible to do so, the identities of children in their area who are not receiving a suitable education. The duty applies in relation to children of compulsory school age who are not on a school roll and who are not otherwise receiving a suitable education.

Amendment No. 6, spoken to by the noble Lord, Lord Rix, is about special educational needs and academies. I was glad to have the opportunity to discuss this and other matters with him yesterday, with colleagues from the Special Educational Consortium, on whom we depend greatly for advice on these and other matters. Academies are fully inclusive schools, which are required by the terms of the model funding agreement—a contractual agreement between the academy trust and the Secretary of State—to admit pupils with special educational needs on an equal basis with others. Academies must have regard to the special educational needs code of practice and any guidance issued by the Secretary of State relating to Sections 316 and 316A of the Education Act 1996.

Parents with a child who has a statement of special educational needs can make representations for them to attend an academy, as they can in respect of any other state school or independent special school. The local authority is bound to consider those representations, and if it agrees with the parents that the academy is a suitable placement for the child, it will inform the academy that it proposes to name it. In this situation, academies must consider precisely the same criteria as those set out in Sections 316 and 316A of the Education Act, as would the local authority in determining whether to place a child in an academy. Academies therefore are in a comparable

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position to other mainstream schools, as they can only refuse to be named if admitting the child would be,

Furthermore, if a local authority names a provision other than an academy in a child’s statement of special educational needs, the parents of that child already have exactly the same right of appeal to the independent Special Educational Needs and Disability Tribunal as they would for a maintained school and, if following a SENDIST ruling an academy is named in a statement, the academy should admit the child.

The noble Lord, Lord Rix, asked me what further steps we were taking to ensure that this right was enshrined. We have agreed with the president of the Special Educational Needs and Disability Tribunal (SENDIST) that the Secretary of State would, as a matter of course, uphold the decisions of SENDIST, which means that academies will be placed in the same position of maintained schools in the enforcement of SENDIST decisions. That is the legal position. The data support the view that academies are fulfilling their special educational needs duties fully, as the noble Lord recognised.

Amendment No. 9 is tabled by the noble Lord. The aim of the special educational needs framework and the support that is provided to children with special educational needs and disabilities is precisely that all such children should be able to reach their full potential. This is reinforced by Clause 1, which states that local authorities should exercise their functions with a view to,

“Every child” includes every child with special educational needs and disabilities.

Schools and local education authorities have duties to identify, assess and make suitable provision to meet a child’s individual learning needs. Local education authorities in particular have a duty, where necessary, to assess children’s special educational needs and to draw up SEN statements and then arrange the educational provision set out in the statements. Through a thorough multi-agency assessment, a child’s individual needs can clearly be identified and the provision tailored to help that child to reach his potential.

Regulations governing the provision of SEN information by local authorities require that the published information provides an explanation of the provision expected to be met from maintained school budgets and that which the local authority expects to provide itself from central funds. This means a clear indication of the actual services available from the local authority, and local authorities also have to keep under review their general arrangements for meeting children’s special educational needs—this, too, includes the SEN support services they provide.

Providing specialist support services from the local authority centrally is one way of making those services available, as the noble Lord recognised, but of

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course it is not the only way. Such services can be provided by one authority on behalf of a group of authorities, or they may be located within a school or a collaborative of schools. For example, this week we announced that we have granted specialist status to a further 14 special schools under the Specialist Schools Programme to recognise their specialist expertise in meeting particular needs and to enable them to do a good deal more outreach work with other schools in their communities. A key requirement of the funding is that they should share their specialist expertise with other schools, particularly mainstream schools—that was strongly welcomed in the specialist schools community. We wish to take such arrangements further and steadily to bring more special schools within the specialist schools policy, as one way of ensuring that these centres of excellence are available more widely.

Amendment No. 7, tabled by the noble Baroness, Lady Walmsley, would alter the duties on local authorities in relation to high standards and the fulfilment of potential by more narrowly defining how the fulfilment of educational potential might be achieved. We do not believe that it is right to limit the duty in this way. I completely support the noble Baroness’s desire to make a strong point about the need to focus on more personalised teaching and learning. We entirely share that objective. We need to secure personalised learning for an education system that enables every child to fulfil their potential; only by that means will we narrow achievement gaps and realise our Every Child Matters ambitions.

The noble Baroness said that this would require a good deal of investment and I fully accept that. There has already been a 50 per cent increase in education spending since 1997 and we announced in last year’s White Paper an extra £565 million earmarked specifically for personalised learning; in addition, my right honourable friend the Chancellor announced a further £365 million in his Budget this year to enable schools to go further in providing for more individualised learning in schools, including, as the noble Baroness said, small-group and one-to-one tuition—but not excluding other forms of provision, including extended schools. Increasingly, schools will make that provision by becoming extended schools to meet the needs of their pupils.

We fully accept the noble Baroness’s observation that there would be further implications for the workforce and the curriculum. This will change over time. Another important area in which this will apply is the development of new specialised diplomas, which will come in 14 vocational lines and will be introduced from 2008. They will significantly extend the school curriculum, the opportunities available to pupils and the ability of schools and local authorities to meet the educational potential of all children. The Bill contains an entitlement to those specialised diplomas but I believe that over time we will wish to make available more such provision as resources allow and as educational philosophies develop.

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