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Lord Swinfen: I support what has been said by the noble Baroness, Lady Thomas of Walliswood. I urge the Government to accept Amendment No. 241G. As I understand it, the special educational needs code of practice is designed to show how the assessments are worked through, not the relationship between schools and the local education authorities. It is important that this amendment is included in the Bill and that schools do not start with one code of practice for their

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relationships with local education authorities which must be amended in a few months' time to take account of special educational needs.

Lord McIntosh of Haringey: I believe that I have three tasks to perform. The first simple task is to assure the noble Baroness, Lady Blatch, that the Government's amendment will achieve exactly what her amendment seeks to achieve in relation to the calculation of the 40-day period. Indeed, the amendment of the noble Baroness is taken word for word from Clause 80. That is what the government amendment applies to the code of practice. As in her amendment, so Clause 80 provides:

    "(7) In this section '40-day period' ... means ... no account being taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days".

I refer next to Amendment No. 241G as spoken to by the noble Baroness, Lady Thomas of Walliswood. I am grateful to the noble Baroness for tabling this amendment. It draws attention to the fact that special educational needs are an important dimension of LEA-school relations. The principles which are set out in the code of practice will certainly apply to the relationship between LEAs and special schools and to the provision that mainstream schools make for statemented pupils. Those principles include raising standards; intervention in inverse proportion to success; partnership and co-operation; and zero tolerance of under-performance.

Our starting point with the draft code for England has been that in most circumstances the way LEAs, head teachers and governors use their powers and fulfil their responsibilities will apply equally to mainstream and SEN provision. But we also recognise that some special schools and children with special needs in mainstream schools require additional or different kinds of support from their LEA. When considering our consultation responses we shall look particularly carefully at those which suggest areas where different treatment may be needed. We shall certainly take account of these in preparing the final version of the code. However, I do not want to rule out the possibility of having separate guidance relating specifically to SEN provision if in the light of responses to our consultation that seems to be the most appropriate way to cover it.

I can assure the noble Baroness and the noble Lord, Lord Swinfen, that SEN issues will be given full and proper consideration. This is a very important part of the role of LEAs and we recognise the need to get the arrangements absolutely right. The list in subsection (6) of this clause is not intended to be exhaustive. It is therefore already open to us to include SEN issues in the code of practice in whatever way is considered most appropriate. As already discussed, noble Lords will have another opportunity to comment, if they are dissatisfied with the approach we decide to adopt, when the revised version of the code is laid before both Houses. In view of these assurances, I hope that the noble Baroness will feel able to withdraw her amendment. In the meantime, I shall be happy to receive any further advice that she or the noble Lord, Lord Swinfen, wishes to offer on this subject.

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My third task is to reassure the noble Baroness, Lady Blatch, about the nature of the code of practice. First, I assure her that the code will apply to the relationship between local education authorities in all circumstances, including education action zones. It is comprehensive in that respect. The noble Baroness claimed that the code was only exhortation and clearly wished, although she did not spell it out, greater central control than the approach taken by the Government. It will be open to schools to appeal against unreasonable action by local education authorities, and the Secretary of State in considering any such appeal must have regard to the code. Therefore, the code is a good deal more than exhortation; it applies to all parties and provides a procedure for the resolution of disputes. The Government do not fear either that this code will depart from the light touch that has been discussed or that it will be unworkable in the sense that it is only exhortation, as the noble Baroness believes. On that basis, I beg to move Amendment No. 241N.

Baroness Blatch: Before the noble Lord formally moves the amendment, I do not seek greater central control. My amendment seeks the opposite: greater autonomy at school level. I suggest that schools that are successful and improve year on year should be left to get on with it and there should not be any intervention at all by the local education authority.

3.30 p.m.

Lord McIntosh of Haringey: That is a point of view. If the noble Baroness says that there should be no intervention whatsoever, we would argue the contrary. However successful the school, the need for a properly thought out education provision in any area involves a local education authority. If the accusation is more limited--that there would be unreasonable intervention by the local education authority--that is answered by the provisions for appeal to which I referred.

Baroness Thomas of Walliswood: I do not find myself entirely satisfied with the response from the Minister. During this Committee stage, there has been a long struggle to get the special requirements of pupils with special educational needs on to the face of the Bill. That process has occurred with other education Bills as they have passed through this House. My recollection is that more often than not that recognition was put on the face of the Bill.

It is not terribly consoling to find that some reference will be made in accordance with requests made by other people during the consultation process on the code, even given the fact that the code will be discussed in your Lordships' House. The code will include--I sought to write the list down; I have not completed it yet--the education development plan, warnings to schools on standards, the suspended rights to a delegated budget, reports from governors, staffing of schools and discipline within schools. In all those areas there should be specific responsibilities, for example, on governors, to account for how they have dealt with pupils with special needs. I do not include pupils with statements because those pupils are usually accompanied by a small

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amount of money--it may not be a large amount--and some additional help. However, a large number of children have special educational needs. A wide range of different needs are covered. I believe, as do others, that those children's needs are as important as the needs of children with statements.

This would be an excellent place to insert on the face of the Bill the Government's concern for the well-being of children with special educational needs. It is no good saying, as the Minister has done in the past, that this is a special interest. It is not a special interest in the ordinary recognisable sense of the word. We are talking of up to 20 per cent. of the population and their parents. This may be one of the two best places to put the Government's concern on the face of the Bill. The code will cover many of the relations between LEAs and schools. The noble Baroness, Lady Blatch, pointed out the increased responsibilities of schools for the curriculum. Many on this side share the Government's concern. This is the ideal place to put that concern on the face of the Bill.

Lord McIntosh of Haringey: I confess that I did not expect to satisfy the noble Baroness, Lady Thomas. The noble Baroness knows that whenever the issue has been raised--it has been raised properly on a number of occasions as we have considered the Bill--the Government have tried to listen to, and evaluate, the relative merits of the different amendments relating to special educational needs. We have sought to consider, as we undertook to do, what might best be done between now and Report stage. We have undertaken to talk to any noble Lords who wish to discuss these issues. I understand that the noble Lord, Lord Swinfen, in company with the noble Baroness, Lady Darcy de Knayth, and the noble Lord, Lord Rix, have already visited the department to set out their stall, so to speak, and to discuss the matter with officials. That offer is open to anyone who wishes to discuss with Ministers or officials the issues of special educational needs.

I understand the noble Baroness's disappointment over what I said. I understand her point that the provision of parliamentary scrutiny for a draft code of practice does not meet what she intended to achieve. The six considerations set out in the draft code of practice, as I said, are not intended to be exhaustive. The consultation process has only just begun. I hope that that process will meet the points the noble Baroness raises. In any case there will be an opportunity for further debate on Report.

On Question, amendment agreed to.

[Amendment No. 241G not moved.]

[Amendment No. 242 had been withdrawn from the Marshalled List.]

Clause 119, as amended, agreed to.

[Amendments Nos. 243 and 244 not moved.]

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