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Lord Addington: My Lords, the Bill addresses a specific point--it is the fact that a child has individual rights and is not merely an extension of the parents. The Government did not intend that to occur, but children's
rights stopped appearing in legislation. The noble Lord's Bill changes that situation and brings back children's rights for all to see. We had arguments about whether certain children should be included and so forth. The noble Lord has ended up, under a certain degree of pressure, going for an answer which is probably better because it is simpler--namely, that all children should have their rights and views represented when it comes to dealing with their own education. Surely, that is something which should be dealt with, if not in this Bill, at least in legislation very soon. I hope that it is in this Bill.7.30 p.m.
Lord Morris of Castle Morris: My Lords, in conformity with the conventions of your Lordships' House, I must begin by reciting my mantra and saying that, as this is a Private Member's Bill, my party takes a neutral stance on it and I speak for myself alone and not as representing the Labour Party. That is a pity, since I feel like the Irishman passing a pub outside which a group of drunks were deciding a matter of dispute between them in the traditional manner. Tapping one of them on the shoulder, he inquired nostalgically, "Is this a private fight or can anyone join in?"
The fight, it seems to me, is between the noble Lord, Lord Campbell of Alloway, and his noble friends in the Government rather than, in the usual way, across the Floor of the House. We are indebted to the noble Lord, Lord Campbell of Alloway, for introducing and persisting with this Bill because he has, in my view, improved it substantially since Second Reading, in particular by removing the phrase "if of sufficient understanding", which several of us pointed out to him was a cause of offence. Yet the objective of the Bill remains the same--namely, to establish conditions in which it will be possible for children to be given a full and independent voice in the appeal proceedings. There are those who believe that the noble Lord's Bill will not have this effect; I suspect that the noble Lord the Minister would number himself among them.
The Bill is designed to take away appeals from the SEN Tribunal and place them far more in front of the High Court. While not wishing to suggest that lawyers may have a financial interest in having cases before the High Court rather than the tribunal--and again it is to the credit of the noble Lord, Lord Campbell of Alloway, that he has scotched that rumour remarkably effectively and well as the Bill has passed through your Lordships' House--there are those who argue that it is unhelpful to have a body, the High Court, which was not designed to hear SEN appeal cases, taking away appeals from the very body, the SEN Tribunal, which was specifically designed for that purpose. If the noble Lord, Lord Campbell, wished to give children additional appeal rights, they argue, he should have started at the SEN Tribunal and not at the High Court. He will doubtless wish to deal with that issue when he speaks.
Yet even after the Bill's Committee stage there continues to be much concern by local authorities about the operation of the tribunal. It may be that the noble Lord's attempt to move things to another plane would
assist the tribunal rather than hinder it. In particular, it is becoming susceptible to organised campaigning by certain pressure groups.I have received an unsolicited letter from Dudley local education authority which makes this case well. An SEN Tribunal case is quoted in which a boy aged seven who suffers from epilepsy, which is well controlled by medication, has some mild learning and behavioural difficulties. On admission to primary school at the age of five, additional welfare support was provided to the school for three pupils while statutory assessments were completed following school referral. That was in February 1994.
The assessment was completed and the note-in-lieu issued in April 1995. Informal support was then removed from the school. The authority considered that the mainstream school could meet the pupil's needs from its normal resources. There was therefore an appeal to the SEN Tribunal in June 1995. Time goes on like an ever-rolling stream. In November 1995 the tribunal ordered the case to be remitted to the LEA to consider whether to determine special educational provision.
In December 1995 the LEA issued a notice to reassess the pupil's needs. This was completed in February 1996, resulting again in a note-in-lieu indicating that the pupil was making satisfactory progress in the basic skills and that his epilepsy was well controlled by medication.
That would have seemed to be the end of it; but no, there was appeal number two to the SEN Tribunal in June 1996 and the tribunal ordered that the LEA should make and maintain a statement based on the premise that the child's performance was erratic, that the level of support provided by the school would be reduced on transfer into Key Stage 2 and that he required daily support.
The LEA issued a statement providing one hour per day welfare support, thus complying with the tribunal order. This level of support was well in excess of the existing support for the pupil of 2 x 30 minutes group withdrawal and 2 x 30 minutes classroom support.
That would have seemed to be the end of the matter; but no, there was appeal number three to the SEN Tribunal in November 1996. This appeal is based on the parents' view that, as the school has reduced its internal support to the LEA, the LEA's provision of one hour per day is not sufficient. In the words of the press, the case proceeds.
The increase in litigiousness is alarming. I note the concern expressed (judiciously) in the Annual Report of the SEN Tribunal for 1995-96. I quote from the report's introduction:
- "The year 1995-96 was the Tribunal's first full year of work, after the gradual build-up during the previous year. At the start of the second year, immediately after the school summer holidays, there was an unexpectedly heavy influx of new appeals. For a time, an already over-stretched secretariat was unable to keep pace, and there were consequent delays in processing the cases. However, the intake of work slackened, and it was possible to recruit and train more staff, some of whom are now working in Darlington. All the same, accommodation problems meant that there was a continuing need to ask staff to work overtime. Towards the end of the year, we were
- receiving some 35 new cases each week, a figure considerably above the original estimate of the Tribunal's workload. It also became apparent during the year that more chairmen (sic) and members were needed to adjudicate the volume of appeals we were receiving. Further appointments were made, although only late in the year."
It is for the noble Lord, Lord Campbell of Alloway, to convince his noble, honourable and right honourable friends that his Bill will alleviate that condition rather than confound it and lead to even more work for the tribunal year by year, and for the High Court as well, which could act to the detriment of the child and family or in their favour. It is for the noble Lord, Lord Campbell of Alloway, to convince the Government of that.
Meanwhile I am happy to continue to support the thrust of his Bill and I am very willing to be convinced that it would achieve its objective without increasing these complexities and delays. I fear that his noble friend the Minister may be harder to persuade.
The Minister of State, Department for Education and Employment (Lord Henley): My Lords, perhaps I may start by reassuring the House and the noble Lord, Lord Morris of Castle Morris, that this Bill does not represent a fight, whether public or private, between myself and the noble Lord opposite or between my noble friend, myself and the Government. I very much commend the manner in which my noble friend has moved this Bill and taken it through both Houses. We have had some very useful discussions, even if we have not necessarily always agreed.
I have already stated the Government's general opposition to the thrust of the Bill. While the principles behind my noble friend's Bill have much to commend them, these principles are already enshrined in the appropriate legislation and in the code of practice on the identification and assessment of special educational needs. Those who are involved in child assessment and provision and those involved in an appeal about them to the SEN Tribunal are already exhorted to ensure that the child's views are known and represented. I can reassure the right reverend Prelate that the child's needs are there represented and that the local authority is actively encouraged to listen to the views of the child. The tribunal itself is concerned solely--as is right--with the child's needs, and that is what it is established for.
Children with special educational needs are not--as I think has been suggested--disadvantaged by the current system. They are the only children to have their own tribunal which, unlike other forms of address such as local appeal tribunals, the Secretary of State or the courts, is expert in the matters of special educational needs. I believe that this Bill attacks the principle that so far as is possible the tribunal should be the final arbiter in these matters by at least implicitly opening up the prospect of much further subsequent challenge to the courts.
I reassure the noble Lord, Lord Morris of Castle Morris, that the SEN Tribunal and its members and chairman (sic)--I hope I may put it like that to the noble Lord; I know how politically correct he is--are independent. The noble Lord knows that they are independent. I know the noble Lord knows well the
work that they do and has great admiration for it. Many of them have experience of working in LEAs. The decisions of the tribunal are, I believe, in the interests of each child before it. I do not think it is correct--I suspect I misunderstood the noble Lord if I understood him to say this--to say that it is susceptible to lobbying from any quarter. I am sure the noble Lord would not wish that impression to be gained.
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