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Where a foundation is removed, we would expect land held by the foundation to transfer to the school’s governing body. In these circumstances, compensation may be payable to the trustees of the foundation. If the objects of the foundation extend beyond the purposes of the school from which the foundation is removed, the trustees may use any money that they hold for those other purposes. If they do not, and the trustees do not wish to use any money that they hold for the purposes of the school, they may apply to the Charity Commission to make a cy-pres scheme to vary the foundation’s charitable objects.

Amendment No. 31 in this group, in the name of the right reverend Prelate the Bishop of Portsmouth, would oblige the Charity Commission, when considering such an application, to treat the school from which the foundation had been removed as if it had been discontinued. It would prevent any money held by the trustees being used for the purposes of that school. The amendment also seeks to amend Section 554 of the 1996 Act, which gives the Secretary of State the power to make orders about the use of Church of England endowments.

We entirely recognise the right reverend Prelate’s desire to ensure that endowments provided for the purpose of Church of England education should continue to be used for that purpose. But having given a good deal of consideration to the matter, the department cannot accept his amendment for the following reasons.

First, it will be open to the trustees of any foundation to apply to the Charity Commission through the normal route where they wish to vary the foundation’s objects. The Charity Commission would consider each application on its individual merits, taking account of the purposes for which the foundation was originally set up and the change in circumstances which led to the application. We do not believe that it is right to seek to fetter the Charity Commission’s discretion in considering such applications.

Secondly, there may be circumstances in which money held by a foundation might legitimately be used for the purposes of the school which removed the foundation. This might be the case where, for example, the land previously held by the foundation was originally provided for the purposes of education in a particular locality, or a school with a particular religious character. I should stress that a school may not lose its religious character simply by removing its foundation. So a Church of England school which removed its foundation would continue to be a Church of England school in the eyes of the law, and would still be subject to diocesan oversight by virtue of the Diocesan Boards of Education Measure 1991.

I should also explain that it would be open to the trustees of a foundation to take steps to protect the foundation’s position before the foundation became subject to removal. Where the governing body of a voluntary school established after the Bill came into force wished to change category to foundation, which would make the school’s foundation subject to

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removal, the governing body could publish proposals for such a change only with the trustees’ consent. The trustees could either withhold their consent, or seek to vary the foundation’s objects so that if it were subsequently removed, any money held by the foundation could be used for other purposes. Similarly, where it was proposed to establish a new trust school on the site of a former voluntary school, the trustees could also seek to vary the objects of the foundation before the school was established.

Government Amendments Nos. 45, 46 and 48 make explicit that the schools adjudicator has the powers to determine the public share of disposal proceeds where a school proposes to sell non-playing field land and the matter is referred to the adjudicator.

Clause 36 introduces Schedule 4, which amends Schedule 22 to the School Standards and Framework Act 1998, which protects public investment in non-playing field school land. The provisions of this Bill include that where a maintained school wishes to dispose of publicly funded non-playing field land it must inform its local authority, which can claim a share of the proceeds which are attributable to public investment. Where there is not local agreement, the matter can be referred to the schools adjudicator for determination.

However, we have not yet directly in the Bill given the adjudicator the power to determine what share of the disposal proceeds is attributable to public investment, and although it is implicit in the other powers he is given, we consider it safer to give him an explicit power in the Bill, which these amendments do.

Amendments Nos. 47, 49 and 50 correct errors of drafting, by inserting a missing word, and by correcting two cross-references.

I am glad to tell the right reverend Prelate that the Government propose to accept Amendments Nos. 51, 52 and 53. While we think that it is unlikely that any future Secretary of State would act to thwart the reasonable wishes of the trustees of a discontinued school to dispose of trustee land where it can no longer serve an educational purpose, we are aware that the major voluntary bodies are not so sanguine. To give them confidence that this Government do not aim to blight trustees’ use of their own property, we are content to accept these amendments. I beg to move.

The Lord Bishop of Peterborough: My Lords, I am very conscious that the right reverend Prelate the Bishop of Portsmouth should be speaking to Amendments Nos. 31, 51, 52 and 53, but for reasons of which the House is well aware he cannot be with us today. Therefore, I shall speak to those amendments briefly.

I am enormously grateful for what the Minister said. I shall read carefully what he said in relation to Amendment No. 31. We need to be clear that the admittedly very unlikely circumstances will not arise where local Church of England school trustees would be left unable to apply the proceeds of sale for wider educational purposes in the diocese on a cy-pres basis.

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However, as I say, I shall read carefully what the Minister said. It is very important for us that that point should be clarified.

I am also very grateful to the Minister for accepting Amendments Nos. 51, 52 and 53, which tidy up a complication in connection with the disposal of land. I am grateful to the Minister’s advisers for the discussions that we have had and for the understanding and help that we have received. I welcome the Minister’s acceptance of those three amendments.

On Question, amendment agreed to.

Lord Adonis moved Amendment No. 27:

On Question, amendment agreed to.

Clause 26 [Proposals under section 25: procedure]:

Lord Adonis moved Amendment No. 28:

(a) require the governing body to ensure that matters relating to- (i) any transfer which may be required by virtue of subsection (2)(b) of section 27, or (ii) any payment which might be required by virtue of subsection (3) or (4) of that section, are agreed or determined before the proposals are published, and (b) enable or require any such matter to be referred to the adjudicator for determination before the proposals are published.”

On Question, amendment agreed to.

Clause 27 [Proposals under section 25: implementation]:

Lord Adonis moved Amendments Nos. 29 and 30:

On Question, amendments agreed to.

[Amendment No. 31 not moved.]

1 pm

Baroness Buscombe moved Amendment No. 32:

(a) inquire fully into the reasons why special schools have closed; (b) seek the views of parents of children with special educational needs about provision and the way decisions affecting their child are made; (c) examine all categories of special educational needs.

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The noble Baroness said: My Lords, Amendments Nos. 32 and 33 go hand in hand. Amendment No. 32 calls for a total review of special educational needs provision, a full inquiry into the reasons why special schools have closed, a consideration of the views of parents of children with special educational needs and a thorough examination of all the categories of special educational needs. The amendment would also ensure that a review was completed within six months of the Bill being enacted. Amendment No. 33 places a moratorium on the closure of special needs schools until the review as designed in Amendment No. 32 has been carried out.

The Minister’s words in Committee made for interesting re-reading. He stated:

He went on to say that that rise in proportion,

Yet, there is a missing link in that statement. I am afraid that the rise in statements for pupils with special educational needs does not in itself amount to national policy. As far as I am aware, the statementing process is not controlled from the Department for Education and Skills, so I do not see the link. If the Minister meant to commit to a national policy that will champion the continued existence of special schools and halt their closure until a full review has been undertaken, I would welcome that commitment wholeheartedly.

I make it absolutely clear that I recognise and applaud the achievements of all schools that provide an education for children with special needs in both mainstream and special schools. In providing for children with special needs they perform an increasingly demanding task, yet the system suffers from in-built flaws. First, there is the existing bias in legislation, which has led local authorities across the country to believe that they are required to opt for mainstream. Secondly, there is the statementing system, where it becomes increasingly clear that the funds do not follow the child. The Minister has admitted in his evidence to the Select Committee:

Three major reports on SEN have been published in the past six months. There are 1,300,000 pupils in this country without statements who have special educational needs, according to the DfES statistics. They rely on our complicated system of statementing and inconsistent provision of special needs education. The SEN debate is gathering significant momentum. There is a real sense that some functions of the system are unacceptable, and real confusion among parents about how best to navigate that system. The representations to the Education and Skills Select Committee report were widely drawn and varied. The

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conclusions drawn by the University of Cambridge report, The Costs of Inclusion, were just as varied and searching. Yet I found myself disappointed by the Government’s response to both those reports.

While both the Select Committee and the University of Cambridge reports advised the adoption of a national framework with local flexibility, the Government have declined even to investigate the option and declined to gather the empirical evidence that would provide a clear sense of the effectiveness of the statementing system and the effectiveness of SEN provision in the mainstream. As the Minister stated in Committee, the number of children with statements increases year on year. SEN is a part of our education system that is here to stay. Yet the Government’s policy pledge of 2004, Removing Barriers to Achievement, tells us that,

Indeed, the Minister sought to reassure us on these Benches in Committee that the population of children in special schools is broadly static over recent years. But a glance at the figures tells us that since the 2004 policy paper, Removing Barriers to Achievement, that population has dropped by 2,400, the lowest it has been since 1997.

What is more, government guidance of 2001 Inclusive Schooling, states:

If that does not constitute an assumption in favour of inclusion, I do not know what does. Yet the Minister has insisted on many occasions that Her Majesty’s Government do not have such a policy. Action speaks louder than words.

The heart of the matter is that many pupils rely on special school education. There are also many who are served well in the mainstream. A bias against special schools is not only unfounded but unfair to those children who could benefit so much from the wholesale provision that those schools can offer. It is hard to ignore the evidence to the Select Committee which, in the report summary, stated that,

It is hard to ignore the evidence of schools in the The Costs of Inclusion report, where a year 1 teacher describes the anti-incentive of the statementing process:

Special schools are valuable and they are in demand. Amendment No. 33 would protect existing special schools until a fair and balanced SEN strategy has been prepared for the future. There is strong evidence to show that children with statements want to be taught in special schools. In 2003, more than 5,000 children with statements transferred from mainstream schools to special schools, and only 1,200 went in the other direction. The Disability Rights Commission stated last year that,

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Let me make it perfectly clear that I do not propose today to increase the number of special schools, nor do I propose to decrease the number of children with SEN in mainstream schools. What I do want to make clear is that the evidence shows us that special schools are successful and should be regarded as centres of excellence that pave the way in achieving in some of the most challenging areas of education. Yet 120 maintained SEN schools have closed since this Government came to power in 1997. Since the introduction of the Government’s paper in 2004, Removing Barriers to Achievement, no fewer than 45 special schools have been closed. The number is far less in the private sector; clearly the demand for special school places remains. It seems that the private sector is, in so far as it can, redressing the balance of children who wish to be educated in special schools. I was shocked to discover that in the past four years the number of children with statements who are educated in special schools has dropped by 3,230, while 450 more children with statements are being taught in pupil referral units than in 2002.

It is clear that the Government’s policy on paper, however well meaning, does not reflect the reality. I fear that the Government’s response to the Select Committee’s substantial report is little more than complacent. The committee proposed a national framework, to which the Government answered:

But that programme is based around lists of outcomes not processes. On paper, the scheme is laudable, but as evidence from our Select Committee stated:

I could go on. We need a review of SEN provision, of statementing and of the planned relationships between special and mainstream schools, local authorities and, most importantly, parents. That is what these two important amendments are all about. Remember also that we are asking only for a moratorium for six months following the passing of this Bill. I beg to move.

Baroness Walmsley: My Lords, I do not propose to say a great deal about this, because I intend to say a lot more about the range of special needs provision when we come to the group that begins with Amendment No. 81; and I do not want to weary the House by saying it all twice. Your Lordships will have to be patient.

Although I have a great deal of sympathy with what the noble Baroness, Lady Buscombe, has said, we are not minded to support the amendment for a number of reasons. Of course, children with special needs are some of the most vulnerable children in our system,

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and of course their needs must be appropriately met. That word “appropriately” is very pertinent. There is more than one way of meeting those needs appropriately and in the best interests of the child; and that phrase must be at the heart of our discussions.

There may be some considerable benefit in having a review of the statementing process and the way in which resources are directed towards the child. The Minister will have heard us talk many times about how that can be achieved—with pupil premiums and by directing additional assistance to those children who really need it in the schools that they attend. Those may be mainstream schools and there are many examples of where properly resourced mainstream schools can provide education in the best interests of children with special needs.

It is the emphasis of the noble Baroness’s review that we do not support, particularly where she asks that it,

We do not think that one should not do that. Of course one should, but it is not possible to close a special school without obtaining those views—and I do not know any local authority that would not. There would be an outcry if it tried to get away with not taking on board the views of those parents. Closing a special school is of enormous interest to the parents of the children attending the school and those children who may attend it in future. They will certainly make their views heard. I do not know of a local authority that would not be forced to hear those views, even if it was unwilling, which most are not.

If the Minister can reassure us that he will have a careful look at the way the statementing process works—it is too bureaucratic and stressful for children—and at the way resources are directed towards the children who need them most, we will not support the amendment. If he cannot give us that assurance, perhaps we may reconsider.

Baroness Howe of Idlicote: My Lords, I certainly support the amendment of the noble Baroness, Lady Buscombe, and if my noble friend Lady Warnock had been here—sadly, she had to leave as she had another appointment—she would have even more passionately supported both amendments in the group, particularly Amendment No. 32.

From what I have seen on recent visits to special schools, there is a clear demand for them beyond that which is provided for. The result has been that children who are seen to need such places have had to be bussed long distances and so on. I would be in favour of the mainstream sector coping with as many pupils with special needs as possible and of the choice both of the parents and of the child being firmly taken into account—remember that these days we are very keen on hearing the views of the child in all these matters.

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