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I do not think the noble Baroness, Lady Thornton, quoted the 2002 Audit Commission report, SEN: A mainstream issue. It points out that almost nine out of 10 permanent exclusions from primary schools and six out of 10 from secondary schools involve children with SEN. Those figures are far too high and while there is guidance, this needs to be put on to a statutory basis. I do hope that the Minister will come back to us with something positive.
Baroness
Buscombe: I rise to speak briefly to Amendment
No. 241 in this group. We have already heard the statistics regarding
the exclusion of children with special needs. Our amendment would
ensure that no child is sent to a pupil referral unit without the
appropriate assessment of their special needs in relation to their
statement. We have already had lengthy debates on the provision for
special needs, but this amendment would ensure that no child with SEN
is sent to a pupil referral unit until their statement has been
adequately analysed for the suitability of
25 July 2006 : Column 1678
1.30 pm
Baroness Turner of Camden: Amendment No. 242, in my name, deals with the rights of childrenfacing exclusion. I spoke on this during a previous education Bill, when the Government responded sympathetically but said that the provision should not be included in primary legislation because it was already part of the guidance on school exclusions in England.
At that time, briefing had been supplied to me by Save the Children, the charity of which I was for many years a trustee and executive member. It had undertaken a great deal of research which indicated that excluded children were anxious that their version of events should be heard before exclusion took place, that many wanted to appeal, and that it was not sufficient simply to leave it to parents. Save the Children has asked me to raise the matter again. It points out that the current statutory guidance does not enforce the involvement of the child in the exclusion process. Not all schools provide for children and young people to make representations. Furthermore, the current guidance does not cover the provision of relevant information to children and young people regarding their exclusion, so they are not always in a position to make representations at exclusion hearings even if they are allowed to attend.
Research demonstrates that children and young people often felt that the exclusion process happened around them and did not directly involve them. A number of them explained that if they had been given a voice at exclusion meetings they could have explained their behaviour and perhaps the reasons behind it, such as living in care or family problems. Fully involving children in the exclusion process would ensure that they took responsibility for their actions and did not risk becoming altogether disengaged from education. It was clear from the research that many young people were only too well aware of what exclusion could mean for their employment prospects—indeed, for their life chances. One young man declared, “I don’t want to become thick”. Others had wanted to appeal but, for example, one young person said, “My mum didn’t want to because it would take too much time”.
Legislative change would give children in England the same rights as children in Scotland and Wales. It is therefore crucial that statutory guidance is strengthened through legislative change. I hope the Government will accept the amendment or, if not this wording, at least the principles involved and return with their own wording on Report.
Baroness
Walmsley: My noble friend Lady Sharp and I have
added our names to that of the noble Baroness, Lady Turner, on her
amendment. However, we are also sympathetic to the other amendments in
the group. What we would really like to see is zero
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As to the amendment of the noble Baroness, Lady Turner, noble Lords will know how keen we on these Benches are on the voice of the child. In a situation that is so crucial for the child—so life changing for the child in the wrong way—as being excluded from the school, there is really no excuse for any school not to follow the guidance and ensure that the child has the opportunity to speak for himself or herself. Even if the parent does not want to speak for the child, or feels that he or she does not have the time or it is too much trouble, it is important that the child has the appropriate information to make his or her own case. It may be in the guidance but there is evidence that some schools are not following it, as the noble Baroness, Lady Turner, has said. Therefore perhaps we need to strengthen the guidance and put it into legislation.
Lord Dearing: My Amendment No. 236 also relates to minimising exclusions by seeking to ensure that there are joint pupil referral units which can engage with difficult children. I am grateful to the Minister for his letter of 17 July, which has been placed in the Library. I think we are both on the same wavelength, although I should like, if I may, over the Recess to discuss with him or his colleagues how and to what extent local authorities should be involved in facilitating this process.
Lord Lucas: My amendment gives the Committee the opportunity to discuss how far guidance should be statutory and how far you need only have regard to it. What has been said by other noble Lords merely illustrates the position. We all know that some schools pay no attention to the rules. The whole process of an appeal to the governors’ committee in such schools tends to be a bit of a whitewash, and going on to tribunals is unnecessarily difficult. Nevertheless, it is necessary to balance that against the difficulties which would arise if the guidance were statutory and parents could appeal against failure to follow any particular dot or comma in the regulations.
We need to improve
things because, as everyone has said, the figures show that the
situation is wrong. Such a high proportion of SEN children should not
be excluded because exclusion is almost always the wrong answer for a
child with SEN. An agreed placement in a different institution may be
the right thing if the school cannot meet a child’s needs, but
if the child is getting to the point of being excluded, their needs
have not been met for some considerable
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In that context, I am very attracted to what the noble Lord, Lord Dearing, said. I missed the letter that was placed in the Library—perhaps it is waiting there for me to read in the Recess, among the pile of things to which I have not yet paid full attention—but what is proposed would seem the right approach. You are saying to schools, “You cannot get rid of these children because they are your pupils, but you can place them in a different context if that is required to ensure the best possible education for them and other pupils”. There are some very good PRUs around the country but they become part of the school family. These children continue to be part of the mainstream education system, and it would be a change of spirit and an arrangement which could be extremely constructive, perhaps also bringing in generalised special schools. As, I am sure, noble Lords know, many of those schools are extremely good at remedial treatment. They pick up children who have become emotionally damaged as a result of their special educational needs and who need a period of respite and specialist attention before going back into mainstream education. It seems a very constructive approach and I hope that the Government will take it seriously.
Lord Adonis: As the Minister for special educational needs I am very alive to the issues raised by the noble Lord, Lord Rix, my noble friend Lady Thornton and the noble Baroness, Lady Darcy de Knayth, in respect of excluded pupils. However, in my experience, there are always more statistics that one can give. I shall give more statistics because I want to put the issue into context. I accept that there is a continuing serious issue in regard to the exclusion of many children who have special educational needs. We need steadily to improve our support for schools to enable them to make the reasonable adjustments that we want to see made for pupils with SEN, and to tackle and improve their behaviour without making exclusion necessary.
There has been a very significant improvement in this area in recent years. I am very keen that the figures should go on the record to inform further debates. The number of permanent exclusions from schools has fallen dramatically from 12,300 in 1997 to 9,440 last year, a reduction of one-quarter. Exclusions of pupils with statements of special education needs are down even more significantly, from 2,250 in 1997 to 850 last year. The percentage of permanent exclusions of pupils with special educational needs has halved in that period, from 18 per cent in 1997-98 to 9 per cent last year.
We all accept that there
is a continuing issue on exclusions generally, and exclusions of pupils
with special educational needs in particular, but the statistics show a
significant improvement in the past nine years. I believe that that has
been due in good part to the much greater seriousness with which
schools, head teachers and governing bodies take special educational
needs. It is also due to the
25 July 2006 : Column 1681
- “schools should avoid
permanently excluding pupils with statements. They should also make
every effort to avoid excluding pupils who are being supported at
School Action or School Action
Plus”—
- “under
the special educational needs code of practice, including those at
School Action Plus who are being assessed for statements. In most
cases, the head teacher will be aware that the school is having
difficulty managing a pupil’s behaviour well before the
situation has escalated. Schools should try every practicable
means”—
- “to
maintain the pupil in school, including seeking local authority and
other professional advice and support at School Action Plus or, where
appropriate, asking the LEA to consider carrying out a statutory
assessment. Where a child is permanently excluded, the head teacher
should use the period between his or her initial decision and the
meeting of the governing body to work with the local education
authority to see whether more support can be made available or whether
the statement can be changed to name a new school. If either of these
options is possible, the head teacher should normally withdraw the
exclusion”.
I hope that when Members of the Committee study my words in Hansard, they will see that the guidance is very strongly drawn. It has significantly reduced exclusions, particularly of pupils with statements of special educational needs. If there are further changes that we could reasonably make over and above that and our guidance on implementing the duty to make reasonable adjustments in respect of disability, we will of course consider them. But the judgment I have reached is that in statutory terms, and in terms of the guidance which underpins statute, the provisions in place are about as strong as we could reasonably make them.
The issue, as the noble Baroness, Lady Darcy de Knayth, rightly highlighted, is the actual levelof training provision in schools. We are seeking constantly to improve that so that teachers, head teachers and governing bodies can make the best possible provision for pupils with special educational needs, including those whose behaviour is such that they might become liable for exclusion.
Lord Rix: In view of what the noble Lord, Lord Lucas, said, guidance is not statutory. Exactly how much notice do authorities really have to take of guidance without some remedial action being taken by the Government?
1.45 pm
Lord Adonis: It is fair to say that the figures I gave demonstrate that authorities are taking note of the guidance. We would not have had these very significant reductions if they were not.
25 July 2006 : Column 1682
The guidance needs to be seen in the context ofthe figures. As always with these debates, it is the direction of travel that is so important, and that has been very much in the right direction in recent years. However, I am always open to reflecting on this further, and if we could make changes which would reasonably secure a further improvement, we would do so. But having looked at this in some detail, my judgment is that the statutory position and the position on guidance are not only satisfactory in terms of the words on the page but are being demonstrated by significant improvements on the ground.
Amendment No. 214 in the name of the noble Baroness, Lady Buscombe, seeks to ensure that local authorities can reassess statements of special educational needs for permanently excluded pupils when they are excluded. Local authorities already have a duty to maintain statements of special educational needs which meet children’s current needs. Where a child is permanently excluded, local authorities should consider whether the child’s statement continues to meet his or her needs and in any case must amend the statement to name a new school where the child’s needs can be met.
Under the proposed legislation, there will be no time limit on the alternative provision and all excluded pupils, whether with statements or not, will be able to enjoy the benefits of it until they are reintegrated into an appropriate school or other educational provision. For statemented children, this will be when the statement is amended.
Amendment No. 236, in the name of the noble Lord, Lord Dearing, seeks to empower local authorities to transfer their duty to establish and manage pupil referral units to groups of secondary schools. The noble Lord was good enough to referto the letter I sent him, which I will happily circulate to other noble Lords so that they do not have to go to the Library. We have been paying very close attention to this area, as I set out in the letter, and we are already working to give local schools a significant role in the management of pupil referral units and the responsibility to identify and commission alternative provision for their pupils, including a strong lead to local authorities to be prepared to delegate budgets to groups of schools to manage this provision directly.
Furthermore, we intend to make regulations for the establishment of mandatory management committees for pupil referral units from September 2007. At present, there are no arrangements for such management committees; pupil referral units are managed directly by the local authorities. The regulations will require that senior staff, as well as governors of local schools, should form the bulk of the membership of a pupil referral unit management committee, which would take on many of the functions currently handled by local authorities.
We have
given a good deal of thought to these regulations and the policy
underpinning them. Our concern is precisely that raised by the noble
Lord, Lord Dearing—that local schools should take real
responsibility for the provision of pupil referral units. We believe
that they could make a significant
25 July 2006 : Column 1683
From 2007, we expect all secondary schools to be in partnerships to improve behaviour and tackle persistent truancy, using funding devolved by the local authorities, and if school partnerships are compelled to fund their pupil referral units, we fear that that may limit their flexibility to fund other types of provision. Up to that point, we are certainly prepared to go with the noble Lord, Lord Dearing.
Amendment No. 237 in the name of the noble Lord, Lord Lucas, seeks to change the status of the exclusion guidance by requiring that appeals panels act in accordance with the guidance rather than having regard to it. We have given a good deal of thought to this amendment but we do not think it is the right way to go. We have comprehensive regulations which govern exclusion procedures. The guidance goes beyond the regulations by exploring some of the factors that decision-makers—head teachers, school governing bodies and independent appeals panels—must take into account. But decision-makers must retain their discretion to make their own decisions, taking account of the circumstances of the individual case, which is crucial in making decisions about exclusions. Requiring decision-makers to act in accordance with that guidance would in many cases remove or narrow their discretion to the disadvantage of the pupils whose welfare they are expected to be considering.
In her Amendment No. 242, my noble friend Lady Turner raised the issue of the child’s right of representation in the exclusion process. In responding to a similar amendment tabled by my noble friend to what became the Education Act 2005, my noble friend Lord Filkin undertook to strengthen DfES guidance, to emphasise that the excluded child or the child threatened with exclusion should be encouraged to make representations about his exclusion at the various stages of the exclusion procedure. I undertake that these amendments will be made this September when we revise and reissue the guidance, which will fully take account of the commitments made tomy noble friend during the passage of the previous Bill.
Baroness Thornton: I thank my noble friend for such a detailed response. I hope that he did not think that those of us making these proposals did not recognise that great improvements had been made and that, as he rightly said, we were on the right track, travelling in the right direction on these issues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 84 [Enforcement of disciplinary penalties: general]:
[Amendments Nos. 222B to 222D not moved.]
25 July 2006 : Column 1684
Baroness Crawley: I beg to move that the House do now adjourn until 2.20 pm.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 1.50 to 2.22 pm.]
Clause 86 [Power of members of staff to use force]:
Baroness Sharp of Guildford moved Amendment No. 223:
The noble Baroness said: Amendments Nos. 223 to 233 and 235 are all about inserting “student” instead of “pupil” in Clause 86. That clause is about members of school staff using reasonable force to prevent a pupil committing an offence, but the amendments would extend those powers to further education and sixth-form colleges. It is vitally important that colleges are able to operate in the same legal framework as schools, especially as more 14 to 16 year-olds are spending time in colleges. The recent estimate is that there are somewhere in the region of 120,000 doing so, but I believe that is shortly to go up to something like 400,000.
It is not clear whether Clause 86 as it stands includes sixth-formers. If so, we need to remember that there are more 16 to 18 year-olds in full-time study at FE and sixth-form colleges than at schools, so again college staff arguably need the same powers, although one hopes that the sixth-formers are not causing as much trouble as some of those lower down. It is not sustainable for two differing legal frameworks to be operating across the same age range, especially as many of these youngsters will be spending more time in institutions from both the school and college sectors.
There is a very recent precedent, which the Minister may choose to follow. The Violent Crime Reduction Bill currently before the House of Lords introduced a power for school staff to search their pupils for offensive weapons, but omitted colleges. My friend Lynne Featherstone in the other place persuaded the Government, through amendments tabled in Committee, that college staff should have identical powers to those proposed for schools. We were delighted that the Government agreed to that. I believe we might have some good news from the Minister on this occasion. Last week the Times carried an article which indicated that the Government were inclined to be generous on this occasion and to agree with this amendment. I look forward to hearing from the Minister.
Amendment No. 234
again refers to Clause 86, which enables staff to use such force as is
reasonable to prevent the committing of an offence causing personal
injury to another person or damage to property, or to maintain good
order and discipline at the school. The third purpose for which force
may be used is very broadly drafted and, as cited by the Joint
Committee on Human Rights in its scrutiny of the Bill, may give rise to
a risk of disproportionate useof force. Surprisingly, unlike
existing legislation on physical restraint of pupils, the clause on the
use of force does not refer to statutory guidance. That lack
25 July 2006 : Column 1685
This year the Youth Justice Board published its Code of Practice on Managing the Behaviour of Children and Young People in the Secure Estate, which provides some concepts that could usefully be transferred into the school setting, and which place the use of force or restrictive physical interventions within the broader context of the establishment’s behaviour policy. In particular, the code states that agreed methods of physical restraint should be used only when absolutely necessary, by trained staff. The code of practice refers to other techniques that can be used to defuse or de-escalate incidents that may otherwise lead to the use of force, and requires the proper recording of each incident and the staff’s response to it.
Physical force may be imposed by members of staff who are not qualified and—since the definition of “staff” is so loosely drafted in Clause 82—by volunteers or others offering services on site if the head teacher so authorises, as was mentioned in our earlier discussion. Qualified teachers and teaching assistants receive training in disciplinary procedures and penalties, so are generally better able to understand and apply the concepts of proportionality and reasonableness. However, they do not receive training in the use of physical force. Other staff may receive no training whatever in this area. More worryingly, unpaid members of staff, volunteers and those delivering extended services are not under the control of, or answerable to, the school if mistakes are made.
The aim of the amendment is to tighten up the wording and ensure that only those who have received proper training in the use of physical force when working with children should be able to do so. Additional safeguards would limit that power to teaching staff and introduce clearer guidelines on the types of behaviour and situations that would warrant the use of force. We discussed these amendments a while back. What training would be available to teachers in the use of physical force, and what training would be available to others who work in schools and are given permission to use physical force?
Amendment No. 238 is a probing amendment
aimed at defining “force”, since it involves the use of
physical intervention or direct physical contact between a member of
staff and a child, and is intended to physically overpower or restrict
movement. The Minister in the other place—I think it was Jim
Knight—helpfully clarified that when deciding whether to use
force, or what sort of force to use, school staff will have to take
account of all the relevant circumstances. Those will certainly include
a pupil’s special educational needs or disability. In this
respect the Minister was entirely correct in saying that there is no
statutory guidance on the use of force. Schools already have guidance
on the use of restrictive physical intervention for staff working with
children and adults who display extreme behaviour in association with
learning disabilities and autistic spectrum disorder—although,
as we have been
25 July 2006 : Column 1686
2.30 pm
We are seeking clarification from the Minister on how guidance will be distributed to schools, whether it will be made statutory, and how the DfES will ensure that all schools act in accordance with it. For example, when staff use force, will they have good grounds for believing that immediate action is necessary to prevent significant injury to children or others or to prevent serious damage; that only the minimum force necessary to be effective should be used; that every effort should be made to secure the presence of other staff before applying restraint so that there are assistants or witnesses; that restraint should be relaxed as soon as it is safe to allow the child to regain control; and that restraint should be used as an act of care and control, and not as an act of punishment?
How do the Government define reasonable force, and how will they ensure that staff who resort to the use of physical interventions do so as a proportionate response to pupils' behaviour? Will Ofsted consider investigating the use of force in schools? Will the Government issue guidance to teachers on the use of force and ensure that it complements that already in use in residential schools?
Those issues have been raised with us by the National Autistic Society, TreeHouse and the Advisory Centre for Education. We would be very grateful if the Minister could give us some guidance on those issues. I beg to move.
Lord Lucas: I speak to Amendment No. 227. The noble Baroness, Lady Sharp, has covered most of the area that I wish to cover and I will echo what she has said.
Things have got to a pretty pass at the moment in schools. If you are assaulted by a pupil, you just have to stand there and take it. You dare not do anything, even if you have witnesses, that might lead to the student taking action against you afterwards. It is such a perilous business to be involved in. You risk losing your entire career—everything you have worked for and care about—on the word of a student against yours. It is not a risk that most teachers are prepared to take.
We have moved a long way since the
schools of my childhood where the use of violence was a matter of
routine. I would no more have dared thump a teacher than they would
have hesitated to thump me. I think that the movement has been entirely
in the right direction. However, we have allowed ourselves to get in a
position where the use of violence by pupils has
25 July 2006 : Column 1687
However, we have to ensure that we are putting teachers in a position where they have the confidence to use the powers that are given to them or set out in this clause. I think that that comes from clear and effective guidance so that teachers can know when they are in the right and when they are not. As the noble Baroness, Lady Sharp, said, there is a very effective system of guidance and rules for residential schools. It works well in situations where pupils are routinely violent. You have to be an absolute saint to work in some of those schools: you know that you are going to get hit, bitten or kicked every day—that is just the way the pupils are. That is not the way it is in most ordinary mainstream secondary schools, but none the less the same incidents can occur, and the methods that have been well proven in extreme situations ought to be transferred there so that the teachers can have the confidence to deal with these incidents when they occur, knowing that they are not putting their careers at risk.
Lord Adonis: Perhaps I may deal first with the issue of statutory protection for the use of force within further education colleges. I am glad to say that this is one of the numerous areas where the Liberal Democrats have persuaded us by the force of their arguments that we should amend the Bill. Having reflected on the amendments tabled by the noble Baroness, Lady Sharp, we believe that it is appropriate that colleges should have a parallel power to schools in this area. Although we cannot accept the precise amendments she has tabled, as that would create an anomalous reference to further education colleges within a part of the Bill dealing exclusively with school-related matters, government Amendment No. 255A, in my name in this group, broadens the current clause to cover students studying at further education colleges.
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