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Lord Rix: I support Amendment No. 105 in the name of the noble Baroness, Lady Sharp, and the noble Lord, Lord Addington. Earlier the Committee talked a good deal about the difficulties caused to children in mainstream schools by having extremely disruptive children in their midst. As I understood the discussion, it was regarded as essential that those most problematic children should go to a special school. I heard only one voice raised in recognition of the argument that children in special schools should not be expected to have their education disrupted and their persons endangered so that children in mainstream schools could work in total peace.

My vision of inclusion is that all children get the appropriate education for them in an appropriate place with appropriate resources, whether that be in mainstream or special schools or in a combination of the two. I enter that caveat, since we are once again discussing the difficulties caused for children in mainstream schools by having to share with children with special needs. Clause 12(4) is an open-ended invitation to stretch the imagination to find some remote possibility of some child at some time being disadvantaged by having to share resources with a child with special needs. Frankly, most children will face far greater difficulties from other sources than they will ever have to face from the removal of disability discrimination in our schools.

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I hope that, as this amendment proposes, we can sweep away this plethora of entirely unnecessary additional excuses for what I can only describe as injustice.

7 p.m.

Lord Lucas: I like Amendment No. 105. Some very good arguments have been made for it. My concern rests with subsection (4)(a) in relation to subsection (1)(b)to which I imagine that it refers. I can imagine no circumstances under which subsection (4)(a) would be needed. How does one prejudice the academic standards of a school by providing for not discriminating against disabled people? One might be able to catch certain factors under paragraph (g) where they were affecting the interests of pupils or other persons who may be admitted to the school as pupils. But if it does not come under paragraph (g), what comes under paragraph (a)? Can the Minister give me some concrete examples of what subsection (a) is supposed to catch?

Baroness Blatch: Before the Minister replies, I am afraid that I shall take issue on this. If these provisions are swept away altogether, it may be that the Minister and I are on the same side for once.

The examples given by the noble Lord, Lord Rix, are reasonable. They are eminently challengeable. They can be challenged by the informal process. They could be challenged by the inspectorate. I suspect they could even be more formally challenged through the statementing process. A school must have some defence.

Let us use some more extreme examples. I shall not name any schools because it would be invidious to do so. One tends mostly to talk about severely disruptive behaviour. But I have been given some graphic examples of where the disruption factor is so great that it is unable to cope, physically and in terms of staffing. It is unable to manage. An unsupported family has a young person--he is not culpable in any sense--who will not work in groups. It is impossible to leave him alone and impossible to provide "single only" education for him within the school.

A system for testing whether a school is being reasonable or not reasonable is an important safeguard in the Bill. I hope the Minister will not be tempted to sweep it away.

On the other hand, it is right that there should be a severe test of a school's case when, for whatever reasons, a school says that it is unable to take a particular child. However, there are circumstances when to accept a child with particular disabilities would be inappropriate for the school, and at the end of the day, it might even be inappropriate for the individual child. The appropriate provision may not be in mainstream schools, but in a special unit or specialist school which deals with particularly severe behavioural problems.

We should not put that burden on the schools, particularly at this time. The schools are not funded to cope. I know that the noble Lord, Lord Rix, will say

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that that is not an argument. We have had much debate on money, but at the end of the day, there is a real world. Resources will be finite. If the money and the support for the school are not forthcoming, there needs to be a defence in law for the school to say--it will have to make the reasons public--that it simply would be an inappropriate placement for that child and to allow the system to test the case of the school.

Baroness Sharp of Guildford: Before the Minister replies, I should like to point out that Amendment No. 105 does not sweep them all away. It proposes that the conditions should go into a code of practice. I have been arguing that that is more appropriate.

Baroness Blatch: I apologise to the noble Baroness. I was arguing against the specific amendments which called for the abolition of this part of the Bill.

Baroness Blackstone: The amendments relate to the factors in Clauses 12 and 27, which provide guidance for schools and post-16 institutions on what they should have regard to in determining what is or is not reasonable in the context of the duty to make reasonable adjustments. The factors do not affect the less favourable treatment duty.

We decided that it was right to set out on the face of the Bill the factors that schools and post-16 institutions should take account of when considering reasonable adjustments. That provides absolute clarity on the issues that institutions have to bear in mind and reassures providers that important matters are relevant when determining what is reasonable. I agree with what the noble Baroness, Lady Blatch, has just said on that. A number of respondents to our consultation said that they were looking for recognition of such factors, not so that providers could evade their responsibilities--of course they should not do that--but to enable them to meet them in a sensible way. Setting out the relevant factors in the Bill also makes it clear to the Disability Rights Commission what needs to be covered in the code of practice.

The list is not exhaustive, but the code of practice is the right place to provide further detail. Our approach is not unprecedented. The reasonable adjustment duty in Part II of the DDA also contains a list of factors to be taken into account when considering whether it is reasonable for an employer to have to take particular steps to comply with his reasonable adjustment duty.

The amendments tackle the factors in different ways. Amendments Nos. 104, 105 and 169 would remove the list of factors. Amendment No. 105 would require schools to have regard to the code of practice when considering the issue.

The other approach, in Amendment No. 106, is to remove only the factor relating to,

    "the need to maintain academic, musical, sporting and other standards".

The purpose of that provision is to enable schools to preserve particular standards. The school will have to decide whether there is a need to maintain a particular standard, or whether a standard should be adjusted. In most cases, schools will have to adjust the sports

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programme to include a physically disabled child, because a certain standard of performance would not be necessary. However, if a school is entering a sporting competition with the aim of winning, the school ought to be free to select a team with the greatest likelihood of winning. The presumption is for inclusion, not exclusion.

Paragraph (a) is not about excluding disabled pupils. Let us not think that having a disability is incompatible with the ability to meet high standards. Our discussion about cricket earlier shows that. The use of objective criteria will make schools think carefully about their activities and about the way in which they choose pupils to take part in those activities.

Amendment No. 171 would add another factor to the list in Clause 27 to ensure that any grants available to the institution to facilitate the education of disabled students should be taken into account. The factors already allow post-16 institutions to have regard to the financial resources available to them and the cost of taking a particular step in deciding what reasonable adjustments to make.

We do not want post-16 institutions or schools to focus on taking particular steps only when specific grants or funding are available. That would be contrary to our overall approach. The duties to make reasonable adjustments are anticipatory. The nature of the anticipatory duty means that institutions should look at all the resources that are available to them and not just the specific grants or funding. We want institutions to take a more holistic approach to improving access.

In conclusion, as on the previous group, I accept that there is a balance to be struck. We think that we have achieved that. I shall take into account the points made by the noble Baroness, Lady Blatch, and the strong feelings expressed by others in the debate and consider whether we can reflect them on Report. In view of my intention to reconsider this issue, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Lucas: Before the noble Lord, Lord Morris of Manchester, replies, could I ask the noble Baroness for some further clarification on Amendment No. 106? I had not read new Section 28C(4)(a) and (b) as giving any right to disabled pupils to a place in the first football team just because they were disabled. I cannot see how the noble Baroness is reading that in that way, or how, in the absence of subsection (4)(a), disabled persons would have a right to a team place if they were not among the best eleven in the school.

It seems to me a very dangerous thing to put in this sort of overall idea of the maintenance of academic, musical, sporting and other standards because it suggests that a disabled person can threaten those standards. It is reasonable to suppose that there are circumstances where having a disabled person in a school would result in the musical standards being lower. You have a person in a wheelchair, it squeaks and disturbs concerts. What are we talking about here?

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I cannot see any circumstances where paragraph (a) applies and the matter would not be caught by paragraph (g). Paragraph (g) is a totally reasonable provision, but if you are not affecting the interests of other pupils in any way, what reasonable sort of discrimination are we talking about which should allow a school to say, "You are not affecting the other pupils but we will exclude you because you will affect the musical or sporting standards of the school"?

I cannot see how the provision is going to operate. This may be a lack of understanding on my part. If the noble Baroness could, in the interim before Report, give me some worked examples of the sort of evils which would occur if paragraph (a) went, I would be extremely grateful.

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