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Lord Davies of Oldham: We are concerned about the proposal that we could begin again the process of consultation on a draft code. That would delay much further the development of the code in association with the Bill before the Committee. We do not want undue delay with regard to the development of the code. At the same time we seek to ensure that the code is developed alongside the representations made during the passage of the Bill and the points emphasised with regard to clarity on practice.

It is the intention under the code to provide full information to the proposed school, including the draft statement, and to emphasise that under the legislation--the noble Baroness played a considerable part in developing the 1996 Act--it was expected that no process in the development of a statement would be able to take place without appropriate and full consultation. That is going on in the majority of cases at present. That will be reinforced in the code.

Baroness Blatch: My impression about the draft statement was more specific. I believe that there should be a statutory obligation for the school to see a copy of a draft statement. The school may wish simply to take it as read or to discuss further the contents of the statement. However, if we wish to reduce the tensions when a school is obliged under the law to receive a child, there should be an opportunity to see the draft statement before it is finally determined. I cannot see the provision anywhere in the statute. The noble Lord has just referred to "good practice". I am not talking about that. I am simply saying that there should be an obligation for schools to see the draft statement.

Lord Rix: May I ask a question? What has force in law as far as regards the code of practice? Schools and LEAs have to have regard to the code of practice--it is getting longer and longer--and one wonders how much regard they will have for it. Is there any possibility that it could be strengthened in statute to make sure that they have some legal obligation to follow the code of practice in all its elements?

Lord Davies of Oldham: The straightforward answer is that if we put everything in statute we would not need a code of practice. But we would also lose the flexibility which codes of practice can produce for the way in which legislation is interpreted and

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implemented. The answer to the noble Baroness' question is quite straightforward-- there is no right for schools to be consulted directly in those terms.

We shall consider what has been said this afternoon.

Baroness Blatch: I am very grateful, that is an offer I cannot refuse. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

5 p.m.

Baroness Sharp of Guildford moved Amendment No. 43:

    After Clause 1, insert the following new clause--

"Statements of Special Educational Need
In section 324 of the 1996 Act at the end of subsection (2) insert--
"and shall have regard to--
(a) as of paramount concern, the best interests of the child; and
(b) the wishes of the child's parents and, where ascertainable, also the wishes of the child; but not
(c) the financial resources of the authority or any policy of the authority to constrain the provision of services to support special education needs."").

The noble Baroness said: I shall speak also to Amendment No. 44. These two amendments take us back to our discussion at the beginning of this afternoon on the first group of amendments. They also take us back to the discussion we had last week about what principles should underlie statements of special educational need. The amendments would incorporate two important points in Section 324 of the 1996 Act, which deals with statements of special educational needs.

First, the amendments would insert a set of principles that should govern special educational needs statements. That has never been done before, but in many senses it is fundamental. Many parents have very little idea of the basis on which special educational needs statements are made.

At Second Reading, I quoted the case of a local education authority official dealing with special educational needs and a vociferous middle class parent who knew precisely what his rights were and was fighting the local education authority for his child to be sent to a particular special school to meet his needs. The official admitted that the LEA had three sets of priorities: the first priority lay with those parents who were taking the authority to court; the second priority lay with those parents who were threatening to take the authority to the tribunal; and the third priority lay with the majority of parents, who had no idea of their rights. That is not satisfactory. Parents should know what their rights are.

Later in the Bill we shall deal with the conciliation service and the importance of informing parents what their rights are under that service. We very much hope that the friendlier procedures will give parents a better idea of their rights. Nevertheless, it seems appropriate to incorporate some broad statements of principle in Section 324.

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The amendment is straightforward--probably much too straightforward. I recognise that the drafting is brutish, but it says what I want it to say. First, the best interests of the child shall be the paramount concern in any statement. Secondly, the wishes of the parents and, where ascertainable, the wishes of the child shall be taken into account. Thirdly--this takes us back to the amendment that the noble Lord, Lord Pearson of Rannoch, talked about earlier--financial resources shall not be the paramount consideration, as, I regret, they frequently are. That is hardly surprising, because local education authorities have to find the money to meet some very expensive special educational needs. As the Audit Commission concluded in 1992, while there are enforceable rights to the provision of specified needs in the statement,

    "there is an incentive for LEAs not to specify what is to be provided because they thereby avoid a long-term financial commitment".

That is why the amendment specifies that the best interests of the child, not the available financial resources, shall be the dominant factor in determining what provision is made.

Amendment No. 44 says specifically that,

    "Any such specification of special educational provision under subsection (3) shall be invalid unless it shall sufficiently state the duration and frequency thereof".

For example, the specification states that they shall have speech therapy, but it does not say how much speech therapy; how often they should receive it; nor that it should be monitored to decide when it should cease. There is, thus, a remedy here in terms of an amendment to the 1996 Act. I beg to move.

Lord Beaumont of Whitley: I apologise to the Committee for not having been here the first day when the noble Lord, Lord Ashley, very ably moved my amendments for me. I was struck low, I regret to say, by an infected duck's egg and was totally unable to attend the Committee. This is, however, a very important amendment and should go on the face of the Bill, particularly--and my party takes a strong view on this--the inclusion of the consideration with regard to the wishes of the child. Moreover, Amendment No. 44, with the specification to state officially the help that is to be given, is absolutely vital. These matters ought to be pursued to the very end and I hope that the Government accept them both.

Baroness Darcy de Knayth: I strongly support these amendments and Amendment No. 44 in particular. As the noble Baroness, Lady Sharp, said, the law requires a statement of special educational needs to specify the special educational provision. However, LEAs draft vague statements with the aim, as the Audit Commission research indicated, of avoiding long-term financial commitment. Certainly, in IPSEA's view, quantification is always necessary and without it there is no guarantee that children will receive the provision they need, which is the whole purpose of the statement. That view is strongly held by the overwhelming majority of organisations in the voluntary sector. That

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was apparent when they responded to the consultation on the proposed code of practice. Perhaps I might quote one or two briefly.

The National Autistic Society said,

    "Statements which do not specify the level of provision and support necessary for the child to receive an appropriate education risk leaving provision open to interpretation, reduction, and unfortunately in some cases, misinterpretation".

Mencap said,

    "There are already too many statements with insufficient specificity to provide a firm foundation for active partnerships between parents and schools. Statements that lack specificity are by their very nature open to differing interpretations by the school, parents and the LEA and are likely to lead to more rather than less conflict between these parties".

I shall not continue but there were many more.

Lord Davies of Oldham: I am unhappy about Amendment No. 44 and even more unhappy about Amendment No. 43 for reasons which I now hope to make clear to the Committee.

I understand the objectives behind Amendment No. 43, which seeks to impose restrictions on the LEAs' decisions in relation to writing statements that go beyond the current provisions in Schedule 27 of the Education Act. Those require that LEAs shall specify the parents' choice of school in the child's statement, unless it is unsuitable to the child's age, ability and aptitude or to his special educational needs; or his attendance at that school would be incompatible with the provision of efficient education for the children with whom he will be educated; or the efficient use of resources.

The first part of Amendment No. 43--the interests of the child--is covered by the requirement under Schedule 27 to ensure that a school is suitable to the child's age, ability and aptitude or to his special educational needs. The second part of the amendment would require LEAs to have regard to parents' wishes and, where ascertainable, the wishes of the child. It is already established law that LEAs should have regard to parents' wishes. Advice in the draft revised SEN code of practice strongly encourages LEAs to take the views of the child into account, not only during statutory assessment but also throughout the child's school career.

The third part of the amendment would effectively disallow LEAs from considering their resources at all when considering parents' choices of school. That cannot be right and I am sure that the noble Baroness, Lady Sharp, recognises that her colleagues on local education authorities wrestle with such issues continually. It would run counter to LEAs' general duty to provide education as efficiently as possible and the specific provisions of Schedule 27. In view of this, I believe that she may consider, on reflection, that the amendment would not prove acceptable.

Turning to Amendment No. 44, this would require LEAs to specify special educational provision in statements in such a way as to include its duration and frequency in all cases. The amendment is unnecessary and inappropriate.

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Section 324 already requires LEAs to specify provision to meet all of the child's special educational needs. Part B of the schedule to the Education (Special Educational Needs) Regulations 1994 requires an LEA, in completing the statement, to specify the special educational provision that the authority considers appropriate and in particular to specify

    "any appropriate facilities and equipment, staffing arrangements and curriculum."

Each child's special educational needs are different. LEAs must have the flexibility to specify provision that is necessary and appropriate to the special educational needs of each individual child. In specifying special educational provision in a statement, the LEA will need to take into account the outcomes of the statutory assessment of the child's needs and the setting within which the child may be taught. In many cases it will be necessary to quantify the provision to meet some or all of the child's special educational needs while in others it may not. It will depend on the circumstances of each individual case. It would not be right for provision to be specified in terms of its duration and frequency in every case.

Requiring LEAs to quantify special educational provision in every case would be against the interests of those children whose special educational needs change frequently and require flexibility of provision to meet those changing needs. For example, a child with a speech and language impairment could be expected to progress rapidly in some areas. The content and precise detail of speech therapy provision--the noble Baroness, Lady Sharp referred specifically to a child in that category--will therefore need to change, often on a weekly basis. Where a child's school is specially resourced to cater for particular special educational needs, it can offer provision which is tailored precisely and varied easily by the school to meet each individual child's needs in a flexible, responsive and appropriate way. In any event, if parents feel that the provision is not specified clearly enough in the statement, or that it should be further quantified in terms of duration and frequency of support, they have a right to appeal to the tribunal.

We made clear prior to and during the debate on Second Reading--last week my noble friend Lady Blackstone gave further reassurances to the Committee--that we will retain the requirement in the SEN regulations and the revised SEN code of practice for LEAs to specify the provision to be made for each child. I am happy to state that reassurance again today and I hope that on that basis the noble Baroness, Lady Sharp, might be prepared to withdraw her amendment.

5.15 pm

Baroness Blatch: I repeat my earlier point that there is concern about reverting to specifying. Does the department intend to be unequivocal about specifying, or will there be a qualification as necessary that then allows flexibility for the local authority to determine whether it is necessary to specify? There is some concern among groups which represent people with disabilities. It would be helpful to know what will go

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into the code of practice. Will it be unequivocal that the provisions required to meet the special educational needs of the child will be specified, not "as necessary", but in every case?

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