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Lord McIntosh of Haringey: My Lords, perhaps I may deal with the points in reverse order. When I read the papers on this order, I was worried that we were being rather slow in that it had taken since 1997 to give effect to this provision. However, when I inquired further, I discovered that only Greece has adopted the convention. We are the second member state to do so. Therefore, we may be slow but almost everyone else is slower. I do not believe that the 90 days will lose us our second place in the queue.

The noble Lord, Lord Newby, is of course quite right about the matter of hot pursuit. It is true that the nature of our boundaries means that anyone who attempts hot pursuit may well end up with "wet pursuit". Clearly, it would not be appropriate for us to do that.

With regard to the questions raised by the noble Earl, Lord Northesk, I was most interested in the point that he made about data matching and friendship trees. He asked me whether the provisions were in accordance with the Data Protection Act and the Regulation of Investigatory Powers Act. The answer to that is: no, the convention will merely provide for the exchange of existing information under Naples II. There are no provisions for intelligence techniques. That means positively that there is no risk of contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. It may mean negatively that more is still to be done in the future.

Perhaps I may correct what I said in relation to Greece. I understand that France, Sweden and the Netherlands have announced in Brussels that they have now ratified Naples II. Therefore, we are among the top five and not the top two countries.

On Question, Motion agreed to.

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Official Report of the Grand Committee on the

Special Educational Needs and Disability Bill

Monday, 29th January 2001.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Brougham & Vaux) in the Chair.]

The Deputy Chairman of Committees (Lord Brougham & Vaux): Before we start the proceedings, I remind the Committee of the special Division procedures which were announced on the first day and which are available in Hansard.

Baroness Darcy de Knayth moved Amendment No. 32:

    After Clause 1, insert the following new clause--

(" . At the end of paragraph 2(2) of Schedule 26 to the 1996 Act insert "on the nature of a child's special educational needs and on the type and the amount of special educational provision required to meet them."").

The noble Baroness said: In moving Amendment No. 32, I shall speak also to Amendments Nos. 33, 34 and 37. They are all aimed at improving parents' chances of securing the best possible educational provision for their child with a statement of special educational need.

The amendments look large and perhaps complex but they are, basically, tweaking the existing mechanism, which is often very much more complicated than replacing the machine itself. I shall try to be brief but please bear with me because I need to take them one by one. They are a suggestion of IPSEA, which is the Independent Panel of Special Education Advice. I declare that I am a member of that organisation but on paper only; I am certainly not a panel member, as I appear to have said in Committee on 23rd January at col. CWH 4. Panel members are involved daily in advising, giving evidence and helping parents through the maze of special education law. They speak, therefore, from first-hand experience rather than from anecdotal evidence.

I should record my gratitude to the Clerk of Public Bills for the huge amount of help I have had in getting these amendments right. Some involve regulations, which we cannot amend, but which point out where the problem is. If Members of the Committee agree, I shall not go into the detail of the amendments because, even if I did not confuse everyone else, I would almost certainly confuse myself. I prefer to concentrate on what they seek to achieve. All the issues have been discussed with Ministers and the department over a period of time so there are no surprises. However, I hope that the Minister will agree to take them away

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and consider them and perhaps come back with amendments of her own. In addition, if there are problems, perhaps she would be willing to discuss them with me outwith the Committee.

I turn to Amendment No. 32. Its purpose is to require LEAs to seek professional advice on both the type and the amount of provision required to meet a child's special educational needs. While professionals do not decide upon the amount of provision to be specified in a statement, which is the LEA's duty, it is important that the decisions are made on the basis of the professional advice which is available to parents. At present, some LEA officers and indeed health authority and trust managers, instruct professionals not to include their opinion on provision--and specifically the amount of provision required--in their assessment reports.

Many professionals are unsure of their duties in that respect. Therefore, if Amendment No. 32 were accepted, it would ensure that LEAs have a legal duty to seek advice, not just on the child's needs, but also on the type and the amount of provision required to meet them. The benefit will be a more informed and more open decision-making process, ultimately reducing parental disagreement and the need for recourse to the tribunal. In the interests of clarity, it would be useful if they were backed up by changes in the SEN regulations 1994. Again, perhaps I can discuss that outwith the Chamber.

I turn to Amendment No. 33, whose purpose is to require LEAs to issue a new statement following a fresh assessment of a child who already has a statement. The problem is that, as the law is written, parents are only entitled to express a preference on their child's school on the issuing of the first statement. This was probably a drafting; it can never have been the intention when the law was written. I shall explain the situation briefly and, I hope, simplify it.

The Education Act 1980 gave all parents the right to express a preference for their child's school. Parents named the school they wanted the child to attend and LEAs had a duty to comply, unless there were specific reasons why the school was not suitable. The 1981 Act removed the right to express a preference for a school from the parents of all statemented children. It shifted the burden of proof. Parents had to prove why and how the school they wanted was appropriate for their child, rather than LEAs having to prove why it was not--a far more difficult task for a parent.

The 1993 Act reinstated the right of parents of statemented children to express a preference for a school but only following the issuing of their child's first statement. In fact, the parents of children who were very young and assessed before they ever went to school have never had the legal right to express a preference. Parents of children with statements continue to be denied the right in law to express a preference when, following subsequent assessment of their child, the existing statement is amended. The amendment procedure under Schedule 27(10) denies the parent the right to express a preference for a school or to request a meeting with an officer to discuss the changes to be made to the existing statement.

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The aim of the amendment is to cause the LEAs to issue a new statement, which would supersede the first one as the legal statement, following every assessment of a child's special educational needs. That would give the parents of statemented children the right to express a preference for a school following every statutory assessment of their child.

The aim of Amendment No. 37 is to end the confusion that the existing statute causes to many LEAs and parents. It would separate in law the right of appeal following reassessment and the right of appeal following amendment. It would not introduce any new appeal rights but it would clear the two separate procedures that we hope will operate in future. First and subsequent assessments would be dealt with under Section 326, while Schedule 27 would cover only amended statements.

The aim of Amendment No. 34 is to introduce a new right to request a meeting with an officer and to express a preference for a school whenever a statement is amended under Section 27(10). Schedule 27(10) does not currently allow parents the right to express a preference for a school. There is some misunderstanding of the law at present and tribunals have been tightening up on this, but my interpretation--and that of IPSEA and the Special Educational Needs Tribunal--is that they are not allowed to express a preference. The opportunity presents itself to put that right now and it is important that we take it.

The amendment would direct LEAs to comply with parental preference for a school whenever a child's statement was amended, for whatever reason. Amendments are most commonly made without assessment, or at the point of nursery-primary or primary-secondary transfer.

I apologise for speaking at such length on amendments that are mainly small tweakings to put right things that were never intended. I hope that they will clarify the legal situation by separating the assessment and amending procedures. These are small tweakings, but very important for the children involved. I hope for an encouraging reply from the Minister. I beg to move.

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