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Lord Lucas: My Lords, I am not sure when my amendments will be called, so I shall leave their specific substance until that stage. In the meantime, I should like to comment on these general amendments. I am delighted that the noble Baroness has proposed to re-write the schedule. I thank her very much for providing me with a copy of the revised schedule. I cannot say that I totally comprehend what it says.

I am also delighted that the noble Baroness has taken on board what I said previously about educational psychologists. I am sorry that the Government are not receiving the evidence in this respect. It is quite evident to practitioners what is going on; for example, there is a whole range of educational psychologists who will not take cases in front of a tribunal because they are so dependent on local education authorities for their money. This is one of the regular traps into which parents fall. They find themselves having to pay for two reports from educational psychologists because the first one to whom they spoke said that he would not apply to a tribunal. But what the noble Baroness has done is at least a step in the right direction and I welcome that.

Baroness Blackstone: My Lords, I am grateful for the welcome that these government amendments have received from the noble Baroness and from the noble Lord.

On Question, amendment agreed to.

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Lord Lucas moved Amendment No. 65:

    After Clause 9, insert the following new clause--


(" . In section 576 of the 1996 Act (meaning of "parent"), after subsection (4) insert--
"(5) For the purposes of Part IV of this Act, a child may exercise the rights conferred on a parent in relation to the Special Educational Needs Tribunal if that Tribunal declares that he is capable of so doing."").

The noble Lord said: My Lords, the question raised in Amendment No. 65 is one that we raised in Committee. I think that there was widespread understanding of the underlying problem; namely, that for many children with special educational needs their parent is effectively the local authority because they find themselves in care or in other ways under the charge of the authority. Under those circumstances, however much one may praise local authorities and local education authorities, it is hard to impose on them a duty to be so critical of themselves as to take themselves to the tribunal to defend the rights of one of their clients against their own actions. In reality, a local authority and a local education authority are not really separate people.

Under those circumstances it is important that there is a separate right of action for the child. It clearly has to be a moderated right, which is why I propose that that right should be under the control of the tribunal and should only be exercisable if the tribunal says that it should be. There is a more general principle to which I think regard needs to be paid; namely, that children, by and large, should be given a voice where they have the competence to express a voice. That is something that is clearly recognised by the Government in actions that they are taking as regards guidance. But it does not seem that guidance extends to this part of the Bill. Indeed, without this kind of provision in the Bill, there is a prohibition on a child bringing an action in front of a tribunal. He or she can give evidence but they cannot bring the action. So a child who is not being properly provided for by his or her local education authority and who is in care has no way of obtaining proper provision.

Indeed, under Clause 1 of the Bill, as regards one of the basic fundamental decisions concerning whether a child should be educated in a mainstream school or in a special school, the only moderator is the wishes of the parent. The parent in the case I am describing is the local authority. Again, the child in that case has no access to that right and to that decision. I do not see a way round that. I think that under the Bill as it stands we have to trust to the good offices of the local education authority.

But I think that where we can deal in a reasonable way in offering a child access to justice and good treatment, we should do so. We should certainly recognise the potential for conflicts with children in care, many of whom have special educational needs and many of whom are quite difficult children in any event. We should not present the local education authority and the local authority with a conflict on the scale which we have now. We should offer the child an

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independent right of action in front of a tribunal as a way of allowing justice to be done and justice to be seen to be done for that child. I beg to move.

Baroness Blatch: My Lords, I support my noble friend. I believe that there was support for the measure on all sides of the Committee. I believe that there was support from the noble Lord, Lord Rix, from the Liberal Democrat Members and from other Cross-Benchers.

In Committee the Government did not give any comfort whatever as regards the plight of a child whose guardian is the local authority. In a predominant number of cases which go to the tribunal, the problem relates to the LEA and the type of provision made for the child. It seems unlikely that the LEA which is the technical guardian of the child will take itself to the tribunal. The noble Baroness split hairs, saying that the LEA is not the authority, or the authority is not the LEA. The truth is that the local authority is still responsible for the care of the young person. The housing authority may be responsible for accommodation; social services may be responsible for guardianship. Many people are involved.

However, those who are of an age to be capable of making a judgment as to whether their provision is appropriate should be given the facility to act on their own behalf if no parent can act for them. I have read carefully what the Government said in Committee. The Government offered no comfort to those of us who are concerned about the young person who has special needs but who, sadly, is not with a family, does not have parents or may have parents who are unable to care for him and is in local authority accommodation. That young person is bereft of an avenue to the tribunal. It would be helpful to have something more comforting from the Minister about what a young person in that position could do.

11.15 p.m.

Baroness Blackstone: My Lords, I am not sure that I am able to be more comforting than in Committee. The amendment would create dual rights of appeal for the parent and the child where the tribunal considers a child capable. I believe that this could be confusing and I do not think that it is necessary.

As I made clear during the debate in Committee, where a child is in care parental responsibility rests with the local authority. That is well established. What happens in practice in the case of a conflict between the social services department and the LEA about the special educational provision to be made for a child is that the child's social worker represents the interests of the child or a third party is appointed to do so. Sometimes, of course, foster parents will have a role to play.

I know that this happens in practice without the conflict of interest about which the noble Lord, Lord Lucas, and the noble Baroness have expressed concern. In any event, we are strengthening the arrangements for hearing the child's views at a tribunal. The new SEN tribunal regulations will entitle

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the child to attend the hearing of an appeal and to give evidence at the tribunal's discretion. The current regulations do not expressly entitle the child to attend hearings.

New SENT regulations will also require an LEA responding to an appeal to state the ascertainable views of the child. The amendment would require the tribunal to decide in advance of any appeal made to it by a child that the child was capable of making such an appeal. This would delay the resolution of the appeal to nobody's advantage.

In view of my reassurances I hope that the noble Lord, Lord Lucas, will feel able to withdraw the amendment.

Lord Lucas: My Lords, I am disappointed by the answer but have to accept it. I suspect that the Government will see the issue arise again in a court case at some stage in the future. It cannot be acceptable that in a modern world a child does not have separate access to justice. That attitude is completely at variance with other actions the Government have taken, I think rightly, in relation to individual and children's rights. I am sorry that the Government do not see their way to extending principles they have applied elsewhere to this situation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66 not moved.]

Baroness Blatch moved Amendment No. 67:

    After Clause 9, insert the following new clause--


(" . Local Education Authorities are required to make a statement of education need for any child referred to them by a school medical officer within 6 months of the referral.").

The noble Baroness said: My Lords, we are all aware how important it is for a child's special educational needs to be addressed as early as possible in the child's schooling. For that reason, I have tabled new Clause 10. A child's parents, a school medical officer or a school nurse is often the first person to see signs of physical or special needs in a pupil. Such people are experienced andqualified. Their professional opinion should carry particular weight when a request for a child to be statemented is made. When a request to an LEA for a statement is supported by a school medical officer or school nurse, the statement should be forthcoming within a reasonably short timescale.

All too often we hear of significant delays in obtaining a statement for a child. Sadly, special educational needs identified by professionals in primary school are not always picked up when the child transfers to secondary school. The secondary school may spend several school terms reinventing the wheel in noting the child's special educational needs and then find that it is unable to provide for that child, who then has to make another transfer to a more suitable school, having lost many months--and sometimes more--in the process.

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I am particularly concerned about pupils about to make the transfer to secondary school. It is in the best interests of the child for a statement to be made before any transfer if a school medical officer or school nurse thinks that they have noted specific special needs. We may need to go further than the amendment and require local education authorities to provide a statement for such a child before they leave primary school, but before we consider strengthening the amendment I would welcome hearing the Minister's response. I beg to move.

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