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Baroness Blackstone: My Lords, we do not believe that the amendment is appropriate. It is for the LEA to decide, in the light of appropriate advice, whether a child has special educational needs, and if so what action should be taken. The only requirement on health authorities is to provide for a medical and dental inspection at appropriate intervals for pupils at maintained schools, but that does not necessarily mean on school premises or by a school health service. Consequently, only some children may have access to a school medical officer. In such cases we expect the LEA to take into account the views expressed by the school medical officer, a designated medical officer for SEN as appointed by a health authority or a referring paediatrician. I hope that the noble Baroness accepts that suitable provision can be made without a statement. Not all the parents or children concerned will necessarily want one.
To require the making of a statement in all such instances may also lead to an extra layer of bureaucracy, which will mean less time and resources being devoted to move deserving cases. LEAs should be able to determine, on all the evidence available, which children need to be assessed and provided with statements. The amendment may lead to greater delays in the processing of statements and adverse effects on the provision for the children concerned.
As we pointed out in Committee, the current SEN code of practice offers clear advice to LEAs and others involved to ensure agreed procedures for referring a child to the LEA. However, we are certainly not complacent. I assure the noble Baroness that relevant practical guidance will be produced for health and social service professionals with a view to encouraging closer joint working between agencies. I confirm that we will reinforce the message that LEAs should pay full regard to the recommendations of school medical officers if the child has access to them. If such professionals have identified a possible need, LEAs should act on it, but acting on it may not necessarily require a statement.
A first round of consultation on the revised code of practice in 1999 proposed that health authorities could request an assessment. That idea met with a negative response from health respondents, including the Royal College of Paediatricians, on the grounds that, although they might identify special educational needs that required provision to be made, they did not feel that they had the expertise to identify the level of intervention needed--school-based or with a statement--and they did not want to raise parents'
expectations inappropriately or to add to the LEA's workload. Under these circumstances it is unlikely that school medical officers or other doctors would want the responsibility of deciding that a child must have an assessment and statement.Therefore, we are not convinced that this amendment is necessary, particularly since action can already be taken quickly where assessments are necessary. Fast-track arrangements are possible under the current code of practice. The existing code makes it clear that in exceptional cases it may be necessary to make an emergency placement for a child and that it should only be made when the LEA, the parents, the school and other professionals who would be involved in the statutory assessment all agreed that the child's need are such that action must be taken immediately and that an emergency placement is the best way forward.
We are committed to making sure that the needs of children are identified rapidly and that the LEA and the health authority develop consistently good links for the benefit of the children concerned. In the light of those remarks I hope that the noble Baroness will withdraw her amendment.
Baroness Blatch: My Lords, I am grateful for the sympathetic tone of the noble Baroness's response, but I believe there is also a misunderstanding between us about the amendment. Indeed, while the noble Baroness has been speaking I have found a way in which to re-word my amendment, which would meet the points she has made.
Of course, it is not for the medical staff to make the statement and my amendment does not suggest that. That is for the LEA, which my amendment recognises. It is the LEA's responsibility to provide the statement. The noble Baroness also made the point, which is true, that where a referral is made by medical staff of the kind I have referred to in speaking to this amendment, it will not necessarily result in a statement in each case. It may result in some provision for the child, but not necessarily a statement.
If I am more correct about what I want from the statement in the amendment I would word it to the effect that local education authorities are required to make an assessment and, where appropriate, produce a statement of educational need for any child referred to them by a school medical officer within six months of the referral. I say that because it is very often the avenue through which the school becomes aware that there is a problem. Either the health visitor or someone involved with the family medically discovers that one of the worries that the parent has is of a particular need which the child has. Inadvertently a particular is revealed. For many years I was chairman of my local play group. We picked up issues very often through the visiting health official. These were then processed into the system.
It seems to me that where a medical officer shows very real concern about the learning difficulties or the special needs of a child, those should not only be taken seriously but should also result in timely action. That
is why my amendment refers to a six months' deadline from the particular request. Recognising some of the points that the noble Baroness made and picking up her sympathetic tone, I believe that it is important to put on the face of the Bill that where medical staff request that a child is assessed and, if appropriate, a statement produced, it should be done within a timescale. I shall seek to return at Third Reading with such an amendment. I beg leave to withdraw my amendment.Amendment, by leave, withdrawn.
Clause 10 [Discrimination against disabled pupils and prospective pupils]:
Baroness Blatch moved Amendment No. 68:
- Page 9, line 12, at end insert ("on the grounds of the disability of that person").
The noble Baroness said: My Lords, this is a large group of amendments including Amendments Nos. 68, 69, 71, 119, 120 and 161. It is important to clarify on the face of the Bill the definition of discrimination. This Bill is about discrimination on the grounds of a person's disability. For all other purposes there are other statutes which apply to all citizens of the United Kingdom and therefore they are outwith this Bill, which refers specifically to discrimination on the grounds of a person's disability.
All the points which I made individually in Committee are in a different context but make the same point. The amendments make clear that unlawful discrimination is discrimination on the grounds of disability. The different parts of the Bill need to be very carefully worded. It is an important issue if this measure is not to be abused, as I believe it could be. It is right that a disabled person should be protected against discrimination on the grounds of that person's disability. But fair discrimination applied to all pupils must include disabled pupils. It separates out all of the other forms of discrimination from the Bill's primary aim, which is to ensure that young people are not discriminated against on the grounds of their disability. I beg to move.
11.30 p.m.
Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness for the helpful way in which she expressed her objectives in the amendments. As she rightly said, we discussed these matters at some length in Committee.
The amendments seek to confine the duty on schools and post-16 institutions not to discriminate against disabled pupils, students and people who are enrolled on courses to discrimination on the grounds of disability only. I recognise the strength with which the noble Baroness stressed that point.
I am afraid that I must simply reiterate what was said in Committee. We do not consider the amendments, however worthy, to be necessary. The Bill is about outlawing discrimination on the grounds of disability. Part II of the Bill will amend the Disability Discrimination Act 1995, which, as its name suggests, is about discrimination on the grounds of disability.
Clauses 11 and 26 make it entirely clear that discrimination will not take place unless there has been less favourable treatment of a disabled person for a reason relating to his disability, or a failure to make reasonable adjustments to ensure that disabled persons are not placed at a substantial disadvantage in comparison with non-disabled persons. I do not think that there is any danger of the Bill being misinterpreted on that point. That I why I hope that the noble Baroness, whose intentions are laudable, will recognise that the amendments are not entirely necessary.
Baroness Blatch: My Lords, I shall single out Clause 10 to make my point. As has been said so often in relation to previous amendments, I begin with what is stated in the Bill. I do not refer to other legislation, because there is not a cross-reference in this context to any other legislation. The Bill stands freely in relation to proposed new Section 28A, which states:
- "It is unlawful for the body responsible for a school to discriminate against a disabled person".
It is important to make it explicit--this is the Bill's rationale--that the discrimination that is referred to should not take place in relation to a pupil's disability. I understand what the noble Lord said; it goes without saying that discrimination will of course be carried out in relation to a pupil's disability, but that is not what the Bill states. If a disabled person is discriminated against, he can literally invoke the Bill's provisions and simply say, "I am a disabled person and I have been discriminated against". However, if the discrimination is not specific to that person's disability--if he has simply been discriminated against and happens incidentally to be a person with disabilities--a confusion will arise. There are no qualifications in the Bill. My amendments attempt to deal with that situation. Will the noble Lord explain the situation more explicitly? The clause states:
- "It is unlawful for the body responsible for a school to discriminate against a disabled person ... in the arrangements it makes ... in the terms on which it offers to admit him ... or ... by refusing or deliberately omitting to accept an application".
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