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Baroness Blatch moved Amendment No. 41:


(" . If the governors of a mainstream school object to the proposed admission of a pupil who has special needs on grounds of inadequate facilities for that pupil in that school, or inadequate or insufficient staffing for that pupil in that school, the governors' objections shall be sustained until such time as the Local Education Authority has--
(a) made the appropriate extra provision to that school, or
(b) until the Tribunal has ruled that the existing provision is satisfactory for that pupil.").

The noble Baroness said: My Lords, even if the parents of a child and the LEA want the child with SEN to be admitted to a mainstream school, it is still necessary for that school to be able to cope with that child's needs and for those immediately responsible for that school--the governors--to be satisfied that they can cope. It would therefore be right, in terms of the school, the children who are already in the school and the child with SEN, for there to be adequate facilities and staffing before the child with SEN was admitted. It is therefore right for the governors to be able to object and to have their objections sustained if the facilities and/or staffing are inadequate. That objection should continue to be sustained until the extra provision that is necessary has been made by the local authority. It will not be sustained if it is challenged and found to be wanting--the Bill allows for that. My argument is simply that when such objections are made and the supporting evidence is sufficiently robust, the objections should be sustained.

However, in order to overcome the obvious abuse which could be thought to be pursued by the governors in the use of this clause, namely to falsely claim inadequate facilities or staffing, the clause also provides that the tribunal, upon examination of the needs of the child and the school's existing provision, could override the governors. I believe that is what they would do in such a situation. I beg to move.

Lord Renton: My Lords, I hope I am not being tactless when I say that whatever advice the noble Baroness, Lady Blackstone, has received, I hope she will bear in mind that this is a necessary new clause which fills a gap in the Bill. The Government have placed priority upon the opportunity of children with special needs being educated in mainstream schools, but if the governors of such a school really feel that they do not have the teaching facilities to deal with a pupil with special needs, surely there should be a way of dealing with the matter.

This amendment fills a gap in the Bill and it is a very necessary amendment. I hope the noble Baroness will consider it sympathetically. If she feels that she cannot answer the matter fully tonight, I hope she will give an undertaking to consider it between now and Third Reading, because it really is important.

Lord Davies of Oldham: My Lords, I recognise the strength with which this amendment has been supported, but it raises a very significant issue which I should like to present to the House at this stage.

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It appears that the amendment, placed as it is after Clause 4 which refers to compliance with tribunal orders, seeks to give governing bodies of mainstream schools a veto over the admission of children with statements of special educational needs if the school decides that it has insufficient facilities or staffing to meet a child's needs after the tribunal has made its decision on appeal. The amendment seeks to maintain that veto until such time as the LEA accedes to any demands for resources or the issue has been reconsidered by the tribunal and it has ruled that the existing provision which it has already considered is satisfactory for that child.

If that is the case, the decision on appeal as to whether a school should be named in a child's statement is surely one for the tribunal, not for the governing body after the hearing has taken place and a decision has been made. When a parent makes an appeal to the tribunal the tribunal takes evidence from the parent and from the LEA and its witnesses before giving a decision. The LEA has to back up its decision that the school can make the special educational provision that the child needs, with support as necessary from the LEA itself.

As part of that process, the tribunal will consider information from a school concerning the provision it is able to make for the child, as supplemented by the LEA. It is certainly not uncommon for the school to present evidence directly to the tribunal and for the tribunal to question the school about the provision it is able to make for the child. If the tribunal believes that the school cannot make appropriate provision without additional support being provided, it can make an order precisely to that effect and the LEA is obliged to comply.

However, the effect sought by this amendment is already achieved by the tribunal hearing and the decision. It would surely be inappropriate for school governing bodies to have a veto over the decisions of the tribunal and for additional work and unnecessary delay to be built into the appeals system because of the appeal from the parent.

Baroness Blatch: My Lords, it may be that I need more advice about the drafting of this amendment, but the wording of paragraph (b) in the amendment says:

    "until the Tribunal has ruled that the existing provision is satisfactory for that pupil".It does not say "after the tribunal has ruled".

It is prior to the tribunal's ruling. The noble Lord has responded to me on the basis that the tribunal has completed its work, it has made the decision about the child and the school. If that is the case, of course in law the school has no option but to take the child. Placing this new wording after Clause 4 may be putting it in the wrong place. I accept that, but it is not after the tribunal. It is separate from that.

It is saying, as a free-standing clause, that if the governors of a mainstream school object to the proposal--the normal procedure would be for an LEA to propose--that a child should be admitted to a particular school, and the school objects on the grounds that it does not have the facilities for that

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pupil and has inadequate or insufficient staffing, then its objection shall be sustained until the LEA has either provided extra funding or extra provision or until the tribunal has ruled.

One can only imagine, if that is a genuine reason put forward by the school, that the tribunal will not send a child to a school that does not have the staff or the facilities to cope. Part of its determination may be to instruct the LEA to make funds available so that the child can be accepted at that school, but it will be for the tribunal to rule afterwards. The whole of the Minister's response was predicated on the wrong understanding of my amendment.

Lord Davies of Oldham: My Lords, if it was predicated on the wrong premise in relation to tribunals that is, as the noble Baroness has indicated, because of where she has chosen to locate this new clause. Let us look at her argument which gives a much wider intent behind the amendment. It appears to be designed to give school governing bodies a veto over the naming of their school in a child's statement if the school disagrees with the LEA as to the provisioning that is required. That would mean that LEAs would have all the responsibility for making and maintaining the statement, but no power to make the final decision because the school would object. Surely, that cannot be right.

Of course, LEAs are required to consult schools that they are considering naming in a statement, and, as a result of our Amendment No. 152 to which I referred earlier, they will be required to send them a copy of the draft proposed statement or proposed amended statement for a child. That will ensure that there is a full and informed discussion and will encourage, as far as possible, agreement on any additional provision that the LEA may be expected to make over and above that which the school can provide.

At the end of the day, the LEA has to satisfy itself that the school can make the provision needed for a child before it names that school in the statement, as it has a statutory duty to arrange the provision and maintain the statement. Having regard to the way in which the noble Baroness has presented the issue, effectively this amendment would take the capacity for decision making away from the LEA while leaving it with the statutory duty.

Baroness Blatch: My Lords, I believe that the Minister and I are living on two completely different planets. Having regard to what I said, that is a completely incorrect premise. Nothing in my amendment prevents the naming of a school; there is no question of a veto in relation to the naming of a school. Perhaps I can suggest that the Minister ignores the notes being handed to him and takes note of what I have said.

I am talking about a school that genuinely receives a child as a result of a statement that names the school; I am not talking about one that abuses the system. It is not a veto in relation to the naming of a school. A child may be sent to a school where the school genuinely says that it does not have the staff or the facilities to make provision for the child. That

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statement is either true or it is not. For the sake of my scenario, let us assume that that is a genuine reason why the school cannot take the child. My amendment simply says that the school should appeal to its LEA--that is the only funding stream for a school in that position--for extra provision so that that school can do its best by that pupil, or it can stand out with its objection, the LEA can refuse to give it any funds and it can have that tested at tribunal. That neither pre-empts the tribunal, nor brings about a veto over the naming of a school. I really do not know how I can explain the matter more clearly.

The noble Lord does not appear to want to say how he has come to his view in relation to a veto over the school. I would like the Minister to say what in my amendment gives the school a veto over the naming of a school. What is the wording in my amendment that achieves that? I wish to test the opinion of the House.

9.25 p.m.

On Question, Whether the said amendment (No. 41) shall be agreed to?

Their Lordships divided: Contents, 23; Not-Contents, 86.

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