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Baroness Darcy de Knayth: I would like to support this amendment. As the noble Lord says, it avoids double disruption to a child's schooling.
4.15 p.m.
Lord Davies of Oldham: Let me begin by saying how much I appreciate the intention that lies behind Amendment No. 35, in the name of the noble Lord, Lord Lucas, to which he has just spoken, which is to reduce the number of cases which have to be taken to the SEN tribunal. We would all wish to keep those to as low a level as possible.
However, we do not believe that the SEN tribunal is the appropriate body to run conciliation arrangements for parents and LEAs who are in dispute over the special educational needs provision for a child.
It has always been clear that the tribunal's role is to determine parents' appeals against the decisions of LEAs about children's special educational needs. If the tribunal were to act as a conciliator prior to an
appeal, this might be seen as prejudicing a parent's absolute right to have his or her appeal heard. The tribunal might be seen as trying to encourage them to drop their appeal, which is, after all, one of the purposes of any conciliation exercise. Mixing the legal role of the tribunal with the less defined and more open-ended role of a conciliator might risk undermining the tribunal's reputation for rigour and impartiality.The amendment is also unnecessary as it duplicates to an extent provision elsewhere in this Bill. Clause 3 of this Bill provides that LEAs must make arrangements for the avoidance and resolution of disputes. The arrangements must provide for independent persons to facilitate the avoidance and resolution of disputes. The amendment would mean a substantial overlap between the services provided by the tribunal as a court of appeal and those provided by the LEA and the independent facilitators and conciliators.
This issue of unnecessary duplication may also arise in respect of disability cases heard by the tribunal, when it becomes the SEN and disability tribunal and the provisions of the Bill dealing with disability discrimination come into effect. Under the provisions of Clause 36 of the Bill the Disability Rights Commission will be given the power to make arrangements for the provision of conciliation services. When those provisions come into force the amendment would mean that there might be three sets of conciliation services available in respect of a dispute arising from the same set of facts.
It may be that the noble Lord is concerned about the independence and impartiality of the services to be provided under Clause 3 as these will be arranged by LEAs. I restate the requirement of the Bill at Clause 3(3) that the arrangements
- "must provide for the appointment of independent persons".
Turning to Amendment No. 38, LEAs have a statutory duty to make arrangements to meet a child's special educational needs as set out in his or her statement, unless they cease to maintain the statement because, for example, the child no longer has special educational needs that warrant additional or different provision from that provided by their school from within its own resources.
We are providing in this Bill, in such cases, for the child's statement to be maintained until the tribunal has come to a decision. This will ensure that where parents disagree that their child no longer needs the protection of a statement, they can be assured that the statement and the additional support provided for their child under the statement will be maintained until their arguments are heard by the tribunal and a decision is reached.
This amendment seeks to secure the same treatment where the LEA proposes to amend the child's statement. But a decision of an LEA to amend a child's statement because it has come to a professional judgment that it needs to be changed to reflect the current needs of the child is of a entirely different order. It would not be appropriate in those
circumstances for the provision to be put on hold to allow an appeal from the parents to be heard by the tribunal and a decision reached. If an LEA amends a child's statement before the tribunal judgment, the child will still receive the provision that the LEA considers appropriate for his or her needs, although it may not necessarily be the provision the parents want. If the tribunal later finds in the parents favour, the child will then receive the provision the parents consider suitable for meeting their child's needs.The amendment would not take account of situations where a number of amendments to the statement are being suggested and the parents agree with some but not others. In such cases, the parents would have to wait for the amendments with which they agree to be implemented until after the tribunal had reached its final decision. Under the present arrangements the child would benefit straight away.
Having heard those reassurances, I hope that the noble Lord, Lord Lucas, will feel able to withdraw the amendment.
Lord Lucas: I am grateful for the Minister's reply on Amendment No. 35. It is complete, accurate and satisfactory. I do not believe that he addressed Amendment No. 38 at all. I understand that the problem of amendments is a complicated one, and I have not sought in my drafting to do more at this stage than raise the issue. The use which is being made of this power and the disruption which is being caused to children's education are not issues we should let pass by as lightly as the noble Lord appears to wish to do. I hope that he and his officials have listened to the problems which I have brought to his notice; they will have come across them in other contexts.
Perhaps there is some way of limiting what can be done under the heading of amendment. Perhaps we can consider other ways of approaching the matter to avoid minor amendments which recommend reducing 20 hours to 18 hours of support, or something of that nature, which do not cause a great deal of disruption to the child's education. However, where this procedure is being used in a way which does cause a great deal of disruption to the child's education, we should go back to the protection for the parents and child. In some cases statements are effectively being ended by amendment and that should be subject to the same controls as ending the statement.
Lord Beaumont of Whitley: Before the noble Lord, Lord Lucas, decides whether to withdraw his amendment, would it not be possible either for the Government or the noble Lord to meet the case which the Minister talked about where there were a number of amendments and only one or two parents objected? It would not be difficult to draft an amendment to meet these particular cases and to allow that to happen. I wonder whether the noble Lord, Lord Lucas, and the Minister would consider that way forward.
Lord Lucas: I would never dream of saying that it was not difficult to draft an amendment; I have rarely
succeeded in doing so satisfactorily. I am sure the Minister has listened to what has been said. I am equally sure that this is a matter to which we shall return on Report. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord Lucas moved Amendment No. 36:
- After Clause 1, insert the following new clause--
The noble Lord said: The amendment reminds us that the children about whom we have been talking are not the only ones with special needs. There are a large number of children in this country whose special needs arise because they have particular abilities which schools are generally not in a position to encourage. They may be exceptionally intelligent; they may have exceptional talent as musicians or artists, in sports or other ways. Many schools are not in a position to give the child the attention and support which would be required for the child to develop fully those abilities.
It is an old chestnut and I do not intend to waste the Committee's time on it. However, we should remember that differing needs arise and we should support those children with particular provision just as we wish to support children whose needs arise from other causes. I beg to move.
Baroness Blatch: I welcome the opportunity to have the matter discussed. We--and I include the Government--aim for the learning difficulties of any child which are over and above the norm to be appropriately addressed. They should be given equal consideration. If over time, we want to reduce the number of people who require statements, then the more seriously the aims of the amendment are met, the better.
A combination of early intervention and taking seriously all learning difficulties at an early age will reduce the later needs of children whose difficulties are such that they require a statement. I therefore welcome the amendment. It may not be easy to draft an amendment to meet those difficulties, but it is important to put on record reassurances about meeting the needs of all children, particularly those with learning difficulties, who fall short of needing a statement.
The Minister of State, Department for Education and Employment (Baroness Blackstone): I am sorry that Amendment No. 96 is grouped with Amendment No. 36. The noble Lord, Lord Lucas, does not consider them in any way related. We thought that they were. The fact that Amendment No. 96 applies to a different part of the Bill does not mean that it cannot be grouped with Amendment No. 36, although I accept entirely the noble Lord's right to de-group the amendments.
Amendment No. 36 would add to the definitions of "special educational needs" in section 312 of the 1996 Act. Concerns have been expressed about how the definitions will work together between this and the second part of the Bill. I hope that I can provide the reassurance sought by the noble Lord, Lord Lucas, and the noble Baroness, Lady Blatch.
Section 312 of the 1996 Act provides that children are classed as having learning difficulties if they have a significantly greater difficulty in learning than the majority of children of the same age or have a disability that prevents or hinders them from making use of educational facilities of a kind provided for children of the same age. The test for children under five years is whether this would be true of them once they reached five, if no special educational provision were made.
The current statutory arrangements in the 1996 Act, supported by the guidance given to LEAs, schools and others in the SEN code of practice, already provide for children's needs to be addressed--whether solely through school-based provision or with additional resources and support from the LEA by way of a statement. The current definition already seems to achieve what the noble Lord seeks in Amendment No. 36. I do not dispute what he is seeking in any way, but the definition is clear in the Act.
The amendment could also be read as extending the SEN definition to cover children who are not provided with work that specifically meets their abilities at any time. The problem is one of wording. That interpretation would extend the definition of SEN to all children when they are not provided with lessons or resources commensurate with their ability. This would mean that every child would be likely to fall within Part IV at some stage in their school career, as there may be times, especially in whole-class, mixed-ability teaching, when the lesson is not totally differentiated but is appropriate in that particular context. No doubt as parents we could all cite examples of when what was being taught did not seem to be 100 per cent appropriate to the needs of our children at that precise time. That seems almost inevitable.
To give another example, a visually impaired child at a mainstream school might need advice from a qualified teacher of the visually impaired, low-vision aids and specific IT equipment, including a computer, in order to access education suitable to his abilities. In
ACCESS TO SUITABLE EDUCATION FOR CHILD WITH LEARNING DIFFICULTY
(" . In section 312(1) of the 1996 Act (definitions), after "difficulty" insert ", or a difficulty in accessing education suitable for his abilities,".").
"a difficulty in accessing education suitable for his abilities".
Perhaps the noble Lord, Lord Lucas, has in mind an example of a very bright child who has some specific learning difficulties in, say, literacy that threaten his access to the rest of the curriculum. Such a child would have learning difficulties under the present definitions of special educational needs and would receive provision for those needs through the SEN framework, perhaps by way of a differentiated curriculum and some targeted multi-sensory work in reading and spelling through the national literacy strategy from the school's resources without the need for a statement.
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