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Baroness Blatch moved Amendment No. 83:

The noble Baroness said: In moving Amendment No. 83 I shall speak also to Amendments Nos. 84, 130 and 131. These amendments concern proportionality. The amendments to Clause 12 relate to provisions requiring disabled children not to be substantially disadvantaged in respect of a school's admissions policy or where they are in the school in respect of their education. Similar provisions in Clause 27 relate to disabled students in higher education and they are covered by Amendments Nos. 130 and 131.

In summary we welcome and support the policy embodied in this part of this Bill, which is to protect disabled children from discrimination at school. We also endorse the Government's recognition in this clause that the anti-discrimination requirements need to be tempered by reasonableness having regard, among other things, to the interests of the non-disabled schoolchildren.

My amendments are designed to give specific practical effect to the principle in one important respect. By way of background, Clause 12 is designed

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to extend the scope of the Disability Discrimination Act 1995 by inserting into it a new provision, the proposed new Section 28C. That proposed new section would extend the anti-discrimination rules to the sphere of school education, in particular under the proposed subsection (1) which states that:

    "The responsible body for a school",

generally the local education authority, or for a private school the proprietor, is obliged to take such steps as is reasonable to ensure that disabled children are not placed at a substantial disadvantage compared with non-disabled children, both in its policy for determining school admissions and, once children are in school, in respect of their education and associated services.

The proposed subsection (4) is intended to clarify what is meant by "reasonable" in this context; in other words, what is the extent of the duty to take such steps as is reasonable. The proposed subsection (4) lists seven factors which we have just been discussing, paragraphs (a) to (g), to which regard shall be had in determining reasonableness. Paragraph (g) says that regard must be had to,

    "the interests of other pupils and persons who may be admitted to the school as pupils".

The word "other" means non-disabled pupils and applicants.

We support that principle. It seems to us right that in determining the rights of disabled children not to be discriminated against, one must also take into account the rights of the rest of the children, including the right to be educated properly and effectively at school. Our amendment aims to give practical effect to the Government's principle. We propose that the principle in paragraph (g) of the proposed subsection (4) should be expressly stated to include the consideration that the interests of those other non-disabled children,

    "will depend in part on the proportion that disabled pupils constitute of the total number of pupils in any one lesson or class or school".

What I am saying is no more than common sense. If a disproportionate number of disabled pupils is concentrated in any one particular class or in any one particular lesson or in any one particular school--rather than being spread relatively evenly among classes and schools--the interests of the other, non-disabled pupils in that class or school are more likely to be disadvantaged. The teachers would have to devote an excessive amount of time and attention to dealing with the relatively high number of disabled children in the class or the school, increasing the disruption for the rest of the pupils. It is only sensible that the obligation in the Bill to have regard to the interests of other, non-disabled pupils should expressly include an obligation to have regard to the issue of numbers. The proper balance between the interests of disabled and other children is most likely to be achieved when the numbers are broadly proportionate.

We know that there are schools that are equipped and have the expertise to take more young people with disabilities than would be considered normal. That is

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where their expertise lies. But there are other schools where the whole balance of the school would be upset if they were pressed into taking a disproportionate number of young people for whom they were not equipped and did not have the expertise and where there would be disadvantage to other young people.

We hope that Ministers agree with our proposal. We support the compassionate objectives of the Government's provision. It is right that disabled children should not be discriminated against. But it would be a form of dogmatic political correctness if that were allowed to result in disproportionate numbers of disabled children being concentrated in any one class, lesson or school. We would not support that. The amendments advocate a practical balance which is within the realms of being achieved by our schools. I beg to move.

Lord Lucas: My Lords, I rise to support, in particular, Amendment No. 84. There is one good school that tries to have at least one severely disabled child in each class. But the number is kept at one. That is manageable and can be contained within a teacher's capacity to look after the class as a whole. I should not like the Bill to make the organisation of that and that balance impossible to maintain. There are factors, such as those mentioned in Amendment No. 84, which are important for a school to take into account. I hope the Minister will confirm that a school may act in accordance with Amendment No. 84 even if the amendment does not get on the face of the Bill.

Lord Davies of Oldham: My Lords, both noble Lords have emphasised the issue of proportionality. That is at the heart of the amendments proposed by the noble Baroness, Lady Blatch. We acknowledge that there might be occasional circumstances whereby admitting more disabled children or students into a class or onto a particular course may not be conducive to effective teaching for all. As I previously mentioned, the factors already allow for some consideration of proportions. However, in the vast majority of cases surely, schools and post-16 institutions will not have to consider the issue. As schools and post-16 institutions become more accessible it will become even less of an issue. We are strongly of the view that proportionality should not be added to the factors on the face of the Bill. But we recognise the concepts behind the amendments.

The factors are, after all, not an exhaustive list. There will be other considerations that a school or a post-16 institution may be able to take into account in deciding whether to make a particular adjustment to prevent disabled children or students being substantially disadvantaged.

That is the general position underpinning the way in which the clause is drafted. Perhaps I may now deal with the specific amendments. In Committee we contended that Amendment No. 83 was unnecessary. The funding provided under the SEN framework for auxiliary aids and services will already be covered either under that factor or more generally. It will form part of the resources available to a responsible body.

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Amendment No. 130 seeks to add another factor to the list in Clause 27. We do not consider that amendment to be necessary. I merely reiterate what I said in Committee. The factors already allow institutions to have regard to the financial resources that are available to them and the anticipated cost of taking a particular step in deciding what reasonable adjustments to make. We do not want post-16 institutions or schools to focus only on taking particular steps where there are specific grants available. That would be contrary to our whole approach.

Under the Bill, the duties to make reasonable adjustments are anticipatory. This means that providers should look at all the resources that are available to them and not only at any specific grants which they might receive. As I have said before, we want institutions to take an altogether holistic approach to improving access for disabled students. I believe that this amendment would have a negative impact on this intention and would encourage institutions to make reasonable adjustments only where they had been given specific grants to aid them in so doing.

Amendments Nos. 84 and 131 seek to make schools or post-16 institutions consider the proportion of disabled pupils or students in a class when considering what reasonable adjustments should be made. As I sought to identify, the issue of proportionality is important, but it is contained elsewhere in the Bill.

In many cases, the proportion of disabled children or students in a class will have no relevance to the question of whether any particular reasonable adjustment will affect the interests of other children. For example, when deciding whether it is reasonable for a university lecturer to have to wear a clip-on microphone, it would be irrelevant to look at the proportion of disabled students with hearing impairment to non-disabled students when considering the effect of the adjustment on other students. However, obviously it would be something that we would wish to see happen in order to aid a disabled student to participate in a university group. The interests of other children or students in a class are not always going to depend even in part on the proportion of disabled individuals in that class.

On the basis of the general position that I have put forward and given that I recognise that issues of proportionality are important in relation to the Bill, I hope that I have given a sufficient explanation to persuade the noble Baroness of the wisdom of being able to withdraw her amendment.

1 a.m.

Baroness Blatch: My Lords, the noble Lord has provided a long response to this group of amendments and I shall want to read it carefully. The issue of proportionality will be a real and practical one for schools, in particular if the Government achieve their primary aim in the Bill; that is, to move substantial numbers of young people out of specialist education and into mainstream schools. Proportionality will then emerge as a real and practical issue.

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In the light of the unsatisfactory discussions that we have had as regards ensuring that, if young people are moved into mainstream provision, adequate support is put in place for them in terms of equipment, staffing and finance, it is my view that this will loom as a major issue following implementation of the Bill.

As I have said, I shall read carefully the Minister's response, but it would be helpful if some recognition could be made that this problem will be understood and accommodated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

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