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The Earl of Mar and Kellie: I thank the Minister, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 95 not moved.]

Lord Lucas moved Amendment No. 96:

("( ) In section 1 of the 1995 Act (meaning of "disability" and "disabled person"), after subsection (2) insert--
"(3) For the purposes of discrimination under this section, any child having a statement of special educational needs shall be regarded as disabled."").

The noble Lord said: I apologise to the Committee for having misdrafted the amendment, no doubt in many ways, but particularly the words "this section", given that it refers to a different section of the Bill. What I mean is Chapter 1, Part II.

The objective of the amendment is to make it simpler for schools to know who they are dealing with when it comes to a matter of discrimination. Anyone who falls within the Disability Discrimination Act 1995 is likely to have a statement. Schools will know who has a statement, but the definition under the Disability Discrimination Act 1995 is feather-edged. It is difficult to know exactly who they are talking about, and the school may not know whether a person falls within that Act.

It would be simpler from a school's point of view if the child was statemented. It does not exclude other pupils from coming within the Act, but it makes the prima facie understanding by the school of who is disabled and who is not much easier. I beg to move.

Baroness Blackstone: To include all children with statements within the definition of disabled persons under the 1995 Act would not be consistent with the intentions of the learning disability provisions in the Bill. Although many children with statements are

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disabled, some are not, and will make sufficient progress with extra help, after a time, not to require a statement.

A person has a disability if he has a mental or physical impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. A special educational need is not necessarily long-term, and it may be remediable with the right help. SEN legislation and disability legislation serve different purposes. The first is about provision to meet special educational needs, and the second is about preventing discrimination on the grounds of disability.

In the past, a person who has had a disability is entitled to protection under the DDA, even if that person is no longer disabled. If this amendment were accepted, a child who had been statemented, even for a brief period, would be protected by the DDA for the rest of his or her life.

Furthermore, schools are already very familiar with the SEN framework in applying the new disability duties. It is more consistent and practical to work alongside that framework rather than to try to shift the boundaries. We want to avoid a school having to spend time deciding which piece of legislation applies to a child's needs before taking action. Similarly, the purposes of the disability provisions in the Bill and the SEN provisions in the Education Act are different. The former seek to ensure that disabled people are not discriminated against throughout their life, as children and as adults, while the latter seek to provide additional help to enable children with learning difficulties to learn and progress while they are at school.

The Disability Rights Commission is charged with producing codes of practice on the new disability duties. We will invite the DRC, in drawing up the codes, to set the new schools duties in the context of the SEN framework, where that is appropriate.

The present definitions of SEN and disability are different but complementary frameworks. They underpin and allow a consistency of approach both to providing support for children with learning difficulties and preventing discrimination on grounds of ability.

In the light of that explanation, I hope that the noble Lord, Lord Lucas, feels able to withdraw his amendment.

Lord Lucas: I shall read what the Minister said. I suspect I shall be satisfied by it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Meaning of "discrimination"]:

Lord Addington moved Amendment No. 97:

    Clause 11, page 9, line 38, after ("question") insert ("having taken steps to inform itself as fully as possible about any disabilities and identified special needs of pupils and prospective pupils").

30 Jan 2001 : Column 171

The noble Lord said: The amendments in this group seek to place a duty on schools, colleges and other places of higher education to take steps to find out whether disabled people are applying to join their courses. They seek to tackle the opt-out within the Bill which effectively says that if they do not have that information, they are not discriminating.

The case of schools is much more complicated because they have to deal with parents. Normally parents are a driving force for dealing with disability. Their efforts are usually backed up by voluntary groups and educational psychologists.

I seek to place some of the emphasis in this regard on the education system. My remarks must not be taken out of context. I am not saying that that should be done with current resources. A later amendment in the Bill seeks to get schools to undertake that duty. For schools to say that they simply are not aware of a child's difficulties is not good enough. Huge delays in offering adequate provision can arise as a result of that. We have already discussed the matter of earlier recognition of problems. If we wait for the parent to discover that something is wrong--that is the worst case scenario because many parents react to information given by teachers--the kind of delays I have mentioned will occur. As we have already stated, if somebody has a minor difficulty such as not terribly acute dyslexia, or an eye problem, and it is discovered early enough, most of the problems will disappear. Indeed, the need for statementing may well disappear.

I shall be very surprised if the Minister does not mention colleges and places of higher education in this context. We envisage some form of enrolment procedure where there is a box to be ticked if you have a disability, and possibly a means of describing what that disability is. Colleges would then be unable to say, "We did not know you could not do such and such". Thus the problem we are discussing would be avoided. At the moment the Bill refers to institutions not knowing the relevant facts. But if they do not ask, they will not know. I suggest that we could remove that difficulty by having an application form with a little box to be ticked and a place for disclosure of information.

I hope that the Minister will be able to respond kindly to these amendments. The noble Lord, Lord Ashley, has tabled amendments with a similar purpose. I am not at all fussy about the words here. If the noble Lord's words are thought to deal with the problem in a better way, I should be more than happy if they were accepted. I beg to move.

5.30 p.m.

Lord Morris of Manchester: I rise on behalf of my noble friend Lord Ashley who is unwell and unable to be with us this afternoon, to move and speak to Amendments Nos. 98, 99 and 111 in this group, standing in his name. I am sure my noble friend will soon be returning to our debates on the Bill with all his customary energy, sincerity and skill; and I know noble Lords in all parts of the Committee will join me in sending him our every good wish.

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In regard to Amendments Nos. 98 and 99 it will be seen that, according to Clause 26 as currently drafted, there can be no discrimination if the authority did not know, and could not reasonably have been expected to know, that a child is disabled. Since we all know that "reasonably" can have a thousand and one interpretations, this part of the clause provides an escape route for local authorities that wish to do the minimum. They merely have to take no steps to ensure awareness by the authority.

My noble friend's amendments would help to ensure that all authorities put systems in place that will make them aware of any discrimination. It is essential that every authority or school be made responsible for having clear procedures for encouraging disclosure. It is then up to the parents to decide whether or not to tell the school about their child's disability. The authority needs to be proactive, not reactive.

I know that the special educational needs code of practice says schools should produce policies that describe their SEN policy and have admission procedures that will identify children with SEN. But there are three objections. First, it does not cover all children; secondly, it does not cover all schools, because independent schools are excluded; and thirdly, it is not legally binding. I am glad to commend these amendments to the Committee.

I turn now to Amendment No. 111. We have already dealt with the purpose and principles of this amendment, namely that the child should have a right to participate in issues relevant to his or her future. Amendment No.111 relates specifically to the child's wishes for a disability to be kept confidential and that, too, deserves our support. I beg to move.

Lord Rix: I should like to ask a simple question: how can a responsible body be deemed to be a responsible body when it has not even bothered to find out whether a disabled person is disabled?

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