You are here: Parliament home page > Parliamentary business > Publications and Records > Lords Publications > Lords Hansard > Lords Hansard Previous Sessions
Previous Section Back to Table of Contents Lords Hansard Home Page

The noble Baroness said: My Lords, this amendment requests the sort of statutory guidance which the Government have recently put in place to address the important issue we have just been debating, but in this case it concerns training for teachers on the appropriate use of physical restraint, and in particular on children with physical or mental difficulties. We have been advised by the charity TreeHouse, the Advisory Centre for Education and the National Autistic Society.

The Minister has stated that he is content with the current position and he has repeatedly assured us that the DfES is not aware that the current powers have caused any difficulties since 1998. However, the charities that have briefed us can all point to examples where school staff have made inappropriate physical interventions with no training and with serious consequences for pupils and adults. A couple of weeks ago a special report by Channel 4 News showed a case involving a six year-old girl with autism and other communication conditions which highlighted the lack of training on appropriate handling methods and proper post-incident procedures in a mainstream

30 Oct 2006 : Column 144

primary school. The six year-old girl was restrained firmly on several occasions. The girl’s treatment at school came to the attention of her parents only when she came home with ripped clothing. The parents requested a full incident log and found that their daughter had been held repeatedly, removed from classrooms and the toilet, and that staff had not received or requested training until the situation became known to the parents. No incident had been reported to the parents. A joint investigation by the police and the local authority found serious procedural errors in the school, which had no policy on physical interventions. The department has conceded that it does not collect data on the number of incidents involving pupils with SEN, but as the Channel 4 News investigation found from research it commissioned, many mainstream schools have been “unaffected” by the non-statutory guidance.

What is the basis for the Minister’s assertion that the DfES is not aware that the current powers have caused difficulties, given the lack of monitoring and data collection? How can he say that when he does not really know? A DfES audit of allegations against teachers and other staff in the education service for September 2003-04 found that the largest number of allegations against staff arose from inappropriate physical handling in a mainstream secondary setting. A report by the National Foundation for Educational Research supports the argument that mainstream staff need to be better equipped to manage the challenging behaviours they are increasingly facing today. The report makes it clear that special schools, for which there is good guidance that is well known to them, have the highest frequency of incidents but the least likelihood of a complaint arising. It is pretty obvious why; their staff have proper training. Equally, the report goes on to note that mainstream schools have the fewest incidents but the highest number of complaints. They do not have proper training and they are not all aware of the non-statutory guidance. Plainly, behind this research and these case studies there is a very high human and financial cost of inappropriate interventions, in terms of exclusions, police time, physical injury, anxiety and the possible need for alternative, out-of-county placements.

This issue is too important to be left to chance, by placing documents on the Teachernet website and leaving schools to carry out their own risk assessments. We believe that statutory guidance will ensure that all schools prioritise this issue when they come to consider their whole school behaviour and their inclusion and disability discrimination policies. This is the best way of ensuring that we achieve a more proactive, preventive and constructive approach across all schools. The Bill gives a clear statement of the rights of all members of the school’s work force to use force where appropriate and necessary. We believe that there should be a countervailing responsibility on all schools—especially mainstream schools, where most children, with autism, for example, are educated—to train their staff effectively, so that they are as aware and as skilled as many staff in special schools are in how to deal appropriately with these situations. I beg to move.



30 Oct 2006 : Column 145

Lord Adonis: My Lords, since Report I have written to the noble Baroness, Lady Walmsley, on Clause 92 and the issues of concern to her. In my letter, I said that the department already issues three pieces of guidance on the use of force, two of which are aimed at special schools and persons who work with pupils with severe special educational needs and one, Circular 10/98, for mainstream schools.

Circular 10/98 provides schools with clear, detailed and practical advice on all the key issues that they will need to consider in making use of this power. In particular, the guidance gives examples of circumstances in which physical intervention might be appropriate, factors that staff should bear in mind when deciding whether to intervene and the kinds of physical intervention that might or might not be appropriate. It also discusses the meaning of “reasonable force” and advises that schools should have a policy about the use of reasonable force and that they should tell parents about it. It further advises that schools should record incidents in which any force, other than trivial or minor force, is used and tell parents of any such incidents involving their child. The issue of ensuring that school staff understand this properly, about which the noble Baroness has indicated particular concern, is also specifically addressed in this guidance:

The guidance goes on to advise how, in planning for possible incidents, schools need to consider;

I should emphasise that this does not mean that all staff will necessarily need training, or that any training needs identified for individual staff members will be the same as for other staff, but there is a helpful prompt in this part of the guidance for senior school management to consider what if any training needs there might be for individual staff members in the light of their experience, particular responsibilities and so on.

We therefore believe that this guidance, to which schools have had access for many years, addresses exactly the kinds of concerns to which the noble Baroness has drawn attention. The reissue of the guidance will help remind schools of its existence and will provide an opportunity to ensure that it is fully up to date and covers those points that in earlier debates I have specifically undertaken to ensure are included. The revised guidance will be issued to coincide with the commencement of Clause 92, after consultation with key stakeholders.

Given this commitment to producing guidance to support staff in exercising this power under Clause 92, we do not see the need for a statutory requirement for the Secretary of State to issue guidance on these matters. I again emphasise that there is nothing substantially new about Clause 92. The legislation that it re-enacts has been in force for eight years. As I say, during that time the department has not seen evidence that either the legislation or the associated

30 Oct 2006 : Column 146

guidance has caused particular problems, or that inappropriate application of the power to use force is a widespread problem. This is not, of course, to say that there are not individual cases of concern—as the noble Baroness rightly said, of course there will be individual cases of concern—but we have no reason to believe that the non-statutory status of the current guidance has made staff more willing to use force or less responsible in the way they use it.

For these reasons, with all the reassurances I have given, including the reissue of the guidance to meet current best practice, I hope the noble Baroness will feel able to withdraw the amendment.

Baroness Walmsley: My Lords, I thank the Minister for his response. The circular may contain some very laudable guidance and the measure in the Bill about physical restraint may not be new, but the fact that it is being re-enacted has ensured that there has been a certain amount of press coverage, particularly in the specialist press, and discussion about this issue. That in itself may very well serve the Minister’s purpose in drawing attention to the circular. Although it is not statutory, it may well have more attention paid to it.

I very much hope that the case studies I have mentioned are one-offs and very unusual, but it is quite clear that the school to which I referred did not seem terribly aware of the guidance. I am concerned that if it is not made statutory there will be schools that do not pay attention to it and the kind of situations I have described will arise.

I think we have cantered around this course quite long enough. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 100 [Duty of local education authority in relation to excluded pupils]:

Baroness Williams of Crosby moved Amendment No. 16:

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 17 and 18. The amendments are interdependent and hold together. I am most grateful to the Minister for the great attention he has paid to these clauses and the attempts he has made to tell me about the steps that the Government feel able to take.

Clause 100 effectively lays on governing bodies in the case of a fixed-term exclusion and in the case of a permanent exclusion on local authorities responsibility for providing the equivalent of full-time education for excluded children. We have no quarrel with that. Indeed, we much welcome it because it is clear that the more one can provide alternative education which is full-time and effective the better. It enables the excluded child to continue his or her education and, in the case of a fixed period of exclusion, to, we hope, go back to the mainstream school and resume their education there.



30 Oct 2006 : Column 147

The problem is quite straightforward. Even in the light of the great help that the Minister has extended to us for moving in these areas, it arises in the description of parents. In a letter the Minister has kindly sent me, which is addressed to the Local Government Association, a first group of parents is effectively described as those willing to take on the responsibility of caring for their child for the five days before the local authority or the governing body take over responsibility for educating the child to ensure that that child in those first five days is not in any public place during school hours. The second group of parents that the Government refer to in the clauses, and in particular in the letter to the Local Government Association, are parents who are unwilling to help in terms of taking the responsibility to care for their children during those first five days and to ensure that they are not in any public place during school hours.

There is, however, a third group, which we on these Benches believe is the biggest group of the three. It is not parents who are able to take responsibility for the five days; it is not parents who are unwilling to do so—on both of those points we fully share the Government’s position. It is a third group of parents who are simply unable to do so, because of the nature of their work, their economic situation or because of other children or elderly parents for whom they have a pressing responsibility. In the letter that I sent to the Minister, which he was gracious enough to accept and acknowledge, I said that there are a great many parents in this category—in particular, of course, a great many single parents—who simply cannot make themselves free for five days, even if they want to, without putting their jobs at risk or their other responsibilities at risk.

I gave the Minister examples of, for instance, NHS nurses with responsibility for caring for people in hospital and teachers with responsibilities to their schools. In those cases, making a quick arrangement—a matter of hours in involved—to free themselves from those responsibilities so that they could look after their child for five days and ensure that he or she is kept out of a public place is, bluntly, an unrealistic demand to place upon them. It also carries the basis of being an offence that is finable and later might even involve a custodial sentence.

I recognise that the Minister has gone a long way to try and meet us and I am grateful to him for that, but that final step, which recognises that if there is a good reason or justification for the parents’ inability to respond, it is one that still weighs a little in the balance. We want to make sure that the parent—in this context I stress that we refer to a parent with good intentions but whose personal situations make it either difficult or almost impossible to respond in the way required—has three things. I hope that the Minister will be able to satisfy us that these three things are now in place. The first thing they need is precise information about the terms of the exclusion—how long it is for, what conditions may be attached, whether there are any indications of the situations in which the child finds himself and so on. The first demand is the exact terms of the exclusion.



30 Oct 2006 : Column 148

The second requirement is that the parent knows and understands the basis of a good reason for his or her inability to respond or, crucially, to get relatives or friends to respond in his or her place. That has to be made plain; we would be grateful if the guidance could give clear examples and explain what justification might be accepted so that the parent would be most unlikely to be charged with committing an offence.

The final requirement is that we want to ensure that parents have immediate redress if they seek to meet the requirements of the legislation, find themselves unable to do so, but want to know what they can do in the situation. We believe that in this situation the advice that can be made readily available outside office hours from the education welfare office is important. The Minister has been most helpful on that point and I am grateful to him. I would like to make sure that he now feels that the system would be able to be in place by the time that these clauses come into effect or soon afterwards, and also that he recognises that where this simply cannot be done it would be the ultimate responsibility of the local authority to ensure that the child is safeguarded if, for one reason and another, there is no ability to ensure that it does not appear in a public place for five days.

I have one final, small question for the Minister. The guidance to the Bill indicates that for children of a certain age the parent might not need to be present to take them away from school. But if that child, on his way home from school, appears in a public place—if she or he bicycles back home after having been excluded—they are almost certain to be in a public place for at least some time. Would that constitute an offence or would it constitute grounds that would be accepted because the attempt had been made to try to maintain the requirement laid upon the parent? I beg to move.

Lord Adonis: My Lords, as the noble Baroness said, I have been in dialogue with her on the issues that she has raised, and I do not think that we are completely at one. I should stress that the reason that I think we are not completely at one is in part a simple issue of resources. I would like to be able to provide the overarching duties on local authorities to safeguard from the first day, but in my reply to her noble friend on Report, I set out the costs that would be associated with that and the limits to which we thought we could go at this stage in imposing new duties on local authorities, noting that of course the requirement to provide after the sixth day is itself a new duty on local authorities, involving considerable additional expenditure. Although I do not think I can go the whole way in meeting her concerns, I hope that I can at least go part of the way and explain our thinking on those other issues that she has raised.

Amendment No. 16 would require parents to be given information about the terms of their child’s exclusion and where they can get advice about it. At Report, I explained that we accept that parents will need to be properly informed about their duties under Clause 102 when their child is excluded. I undertook to ensure that the model letter my department offers

30 Oct 2006 : Column 149

head teachers to send to parents at the time of exclusion is revised to set out clearly the nature of their duty under Clause 102, the days on which that duty will apply, the consequences of failing in that duty and the availability of the defence of reasonable justification. I also undertook to include in that letter the contact number of the local authority’s education welfare service, or equivalent. That would enable the parents to get further advice about the authority’s approach to issuing penalty notices for this offence and for them to be signposted to different types of support, available either through the local authority or through other national or local agencies and helplines, such as the Advisory Centre for Education, to which my department provides funding.

Following my further commitment in debate on Tuesday, I have also written to the Local Government Association about what support it can provide in this area and have sent the noble Baroness a copy of the letter. Taking up the noble Baroness’s proposal, I specifically asked the Local Government Association if its members could provide a helpline service with extended hours, as suggested by the amendment. I have asked it to consider that matter formally and have said that I would be happy to meet the noble Lord, Lord Bruce-Lockhart, the association’s president, to discuss this with him directly. It would be a sensible way forward which could offer a great deal of support to parents who are in the predicament the noble Baroness has described. I give her my undertaking that I will pursue those discussions further and report back to her on the progress I have made. In view of those measures, I do not believe that a statutory requirement in this area is necessary.

On Amendments Nos. 17 and 18, I recognise the noble Baroness’s concern about what is in some cases regarded as the impracticality of the duty on parents to ensure that their child is not present in a public place during school hours in the first five days of exclusion, particularly the burden it is felt this may place on disadvantaged parents. Amendment No. 17 would mean that a parent could request a local authority to offer a place at a pupil referral unit to an excluded pupil during the first five days of that pupil’s exclusion from school if the parent had good reason for being unable to comply with their duty under Clause 102.

We believe that in many cases it may well be appropriate for such a place to be made available and would encourage local authorities to consider what provision they can make in that area. However, to impose a duty of this kind we believe is problematic. Exclusions tend to take effect very quickly after the head teacher makes the decision, often on the next day or even on the same day as the exclusion, as soon as the notice under Clause 103 can be brought to their attention. The five days start to run from this point, but if this were to be a statutory duty, the local authority would need enough time to consider the request to which it could in any case not be required to accede to because of the parallel requirements that provision for pupils must be suitable to their particular needs. As I explained at Report, a place at a pupil referral unit may not be suitable to the particular needs of a child; often pupil referral units

30 Oct 2006 : Column 150

are very specialist places for children at high risk or with particular behavioural difficulties which may not be appropriate to the child in question.

When it comes to the defence of reasonable justification, there is a circular argument which, despite having given a good deal of consideration to it, I am unable to resolve. The noble Baroness quite rightly says that there should be the defence of reasonable justification—which there is—and that it needs to be clear to parents that it exists. We accept that. She then wishes us to spell out those reasonable justifications. As I said when I replied to a similar amendment at Report, we do not believe it is possible to list exhaustively what reasonable justifications there might be. The presence of a school pupil in a place such as a library, a shopping centre or riding a bike on the way home, as the noble Baroness suggested, may be reasonable in some cases but not in others. If we were to set this out in formal guidance, it could provide either a misleading view of what would constitute reasonable justification in all cases or, worse still, a list of ready-made excuses which parents or pupils could use.

I am anxious not to sound unduly negative. To meet the first points, under existing arrangements schools and local authorities can and do make provision earlier than the sixth day for exclusions. We accept that there will be cases where there are reasonable justifications for the presence of a pupil in a public place. While it is for the courts to decide what constitutes a reasonable justification, it could conceivably cover situations where it was not possible for parents to make alternative arrangements or to take time off work in the way that the noble Baroness has described.

Taking all of those factors into account, I hope the noble Baroness will accept that we have done a good deal to meet the points that she has raised. I accept that we have not met them all, but I particularly commit myself to working further on the support services for parents, starting with the helpline. I will be in touch with her again about that.

Baroness Williams of Crosby: My Lords, I am grateful to the Minister, and I certainly will not push this matter to the point of asking the opinion of the House. I am grateful for what he has done, which is very considerable. I would simply like to leave him with the example of a parent who has reasonable justification and is recognised by the local authority as having reasonable justification. That parent cannot then alter the circumstances in which they have justified their inability to do what the Bill requires, and yet a fixed penalty of some £50 may still fall upon them. I take it that the matter would have to go to court in order for the penalty to be lifted. That is not a wholly satisfactory situation where somebody, by the very wording we have agreed, would have good reason for what they have done and would not be behaving irresponsibly.

Next Section Back to Table of Contents Lords Hansard Home Page