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("( ) For the purposes of this section, a child is educated in a mainstream school if he is registered at, and regularly attends, such a school.").

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The noble Lord said: My Lords, this amendment is similar to one that I moved on Report. All I wanted then and all I want now from the Minister is a simple dictionary definition of the phrase, "education in a mainstream school". I did not receive a reply at the previous stage, but I hope to receive one now. I beg to move.

Baroness Blackstone: My Lords, the noble Lord, Lord Lucas, seeks to define what constitutes mainstream schooling to ensure that dual placements are permitted. I have given many assurances that the existing arrangements, and indeed Clause 1 of the Bill, do allow for dual placements. The flexibility is there for children to be educated at a mainstream school, but to receive part of their education at another school.

I do not know whether I can give the noble Lord a dictionary definition of the term, but I believe that a mainstream school is any school which does not have special provisions for those with special educational needs. However, this amendment states that a child should be considered to be receiving education in a mainstream school if he is registered at that school and attends regularly. In return, perhaps the noble Lord could say what "regularly" means. The problem is that that term is awfully imprecise. It could be said that a child attends a school regularly if he does so only once a term, so long as he does that on a regular basis. This could be abused and could provide a significant loophole to block real inclusion. As the noble Lord knows, we are trying to encourage greater inclusion where parents want it.

Noble Lords will remember the discussion we had on Report concerning the term "registered". We oppose the use of the term "registered" because it would allow a child to be registered at one school but taught at a totally different school. That is not inclusion. As we argued then, we believe that it is right for the vast majority of children with special educational needs to be educated in mainstream schools. We also believe that it is common sense for a child normally only to be considered as being educated in a mainstream school if he spends the majority of his time in that mainstream school.

I have already promised that we shall provide further advice on the use of dual placements--both for children who have statements and for those who do not--within the guidance that will back up the new inclusion framework. I should like now, again, to give an assurance that this Bill, as it stands, allows for dual placements. I hope that, having heard those assurances, the noble Lord will feel able to withdraw his amendment.

Lord Lucas: My Lords, it is clear that I am not going to be given what I want. It has never disturbed me if I cannot explain the exact meaning of my amendments, but if the Government cannot explain the exact meaning of their own Bill, that is not to be encouraged. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Blatch moved Amendment No. 3:

    Page 2, leave out lines 9 and 10.

The noble Baroness said: My Lords, unfortunately, the noble Lord, Lord Northbourne, has been called away and thus is not able to move the amendment. As my name has been added to it, I shall do so on his behalf. I have given notice that I shall speak at the same time to Amendment No. 5.

I have brought back Amendment No. 5 for two reasons but, first, I should like to thank the noble Baroness for the way in which her staff have made themselves available to talk to my noble friend Lord Pearson of Rannoch, who has expressed concern about this matter. Unfortunately, he is out of the country. My noble friend sought a letter from the noble Baroness, Lady Blackstone, which has been forthcoming. In the absence of my noble friend, I should now like to record formally the contents of that letter in Hansard for Pepper v. Hart purposes in the future.

Secondly, and more disturbing, is the legal advice I have received as a result of our previous debate in which we argued that the interests of the child should be made paramount in the wording of the Bill. We believe that, despite what the noble Baroness said about this clause and how it interacts with section 316 of the 1996 Act, the conflict has not been resolved. That is why my noble friend Lord Pearson of Rannoch said that he would be grateful to receive a letter from the noble Baroness to confirm that, while the Bill will make it easier for children with special needs to attend a mainstream school, it will also not make it any more difficult for statemented children with special educational needs to be supported by local education authorities at independent schools, if that is what their parents want and, of course, if that would meet appropriately the special educational needs of the child.

The noble Baroness sent a letter confirming that. For the purposes of expressing my aims in these amendments, I shall repeat the main body of the letter. It states:

    "Clause 1 of the Bill makes it clear that section 316 does not affect the requirement in section 348 of the Education Act 1996 that local education authorities should fund the placement of children with special educational needs at non-maintained schools if those schools are named in their statements, or if the authority believe that provision in a non-maintained school is necessary and the particular school is appropriate."

    "If a parent wants their child to attend an independent school, the duty to educate that child in a mainstream school imposed by section 316(3) is immediately lifted. If the LEA agrees that the child should be educated in a non-maintained school and name that school in the child's statement, the LEA will, under section 348, have to pay for that school. Nothing in section 316A is capable of affecting this. Section 316A qualifies section 316. It does not impose 'independent' rights or duties to the effect that a child can only be educated in a non-maintained school if the LEA is not funding that placement. It does not affect the operation of section 348 and there is therefore no need to make provision to that effect."

My Lords, it is important that that is put on the record and that it is confirmed by the Minister as the Government's view.

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I want to move on to the more disturbing advice that I have. My noble friend Lord Campbell of Alloway, who is not in his place, has come to the same view, and he has more legal qualifications than I do. I am very much in the hands of others to advise me. If, as the noble Baroness has said, Section 348 will not be affected, why is Section 316A part of it, if the cost will be met otherwise than by a local education authority? What are the conditions under which that provision would apply if the local authority believes that it is in the best interests of the child, it is consistent with the wishes of the parent and the educational needs of the child, that an independent place is sought and the LEA is free to pay for that place? There is no getting away from the words in the Bill. They are either not necessary, or they are necessary because of the situation that the Government envisage, and the LEA would like to send a child to an independent school. Clause 1 states that

    "'mainstream school' means any school other than ... a special school, or ... an independent school which is not ... a city technology college ... a city college for the technology of the arts, or ... a city academy. ... Section 316 does not prevent a child from being educated in ... an independent school which is not a mainstream school, or ... a school approved under section 342, if the cost is met otherwise than by a local education authority."

In other words, the local education authority is not permitted to spend money on a place in an independent special school. What will prevent a local authority from paying for a place in an independent school, especially if that is what the LEA wishes to do? The position is totally baffling. I sought advice from an eminent QC who said that the Government have it wrong and that my interpretation of the Bill and that of my noble friend Lord Pearson of Rannoch is right. There is a serious conflict. The noble Lords on the Liberal Democrat Benches will almost certainly hold the Government's hand in the Division Lobby, so the chances of beginning to resolve the matter in favour of the legal advice that I have is pretty remote. At least we could have the fall-back position of including these words in the Bill, so that a legal challenge could be successful in court. I beg to move.

5 p.m.

Lord Davies of Oldham: My Lords, I can be reasonably brief in response to Amendment No. 3 because the noble Baroness, Lady Blatch, read out the letter accurately, which has now been put on the record. That was largely the substance of the reply that I would have given, so she has already extracted that from the letter, dated 27 February.

We have visited these matters before, and she will know our anxiety about the amendment and why we oppose it. Amendment No. 3 would fatally undermine Clause 1 and new Section 316. The amendment would have virtually the same effect as including independent schools, including those approved to cater for children with SEN and non-maintained special schools in the definition of mainstream schools. Clearly, they are far from what we mean by mainstream school in the context of Clause 1. How can we say that a child is being educated in a mainstream school as part of the general inclusive perspective of the legislation, if he is

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sent to a non-maintained special school? Clearly, that would not be inclusion. The reason that we are resisting the amendment is because it would produce that effect.

The rest of the issues raised by the noble Baroness were largely answered by her when she quoted the letter from my noble friend the Minister. I can reassure the noble Baroness, Lady Blatch, that if parents want their child to attend an independent school, the duty to educate that child in a mainstream school imposed by Section 316(3) is immediately lifted. If the LEA agrees that the child should be educated in a non-maintained school and names the school in the child statement, under Section 348, the LEA will have to pay for that school. Nothing in Section 316A can affect that. That section qualifies Section 316. It does not impose independent rights or duties to the effect that a child can be educated only in a non-maintained school if the LEA is not funding that placement. The provision does not affect the operation of Section 348.

I hope that I have succeeded in clarifying the issues raised by Amendment No. 3, which was grouped with Amendment No. 5 by the noble Baroness. Amendment No. 5 has rather more substance. I know the intention behind the amendment because we have had these debates before. I shall touch briefly on its technical deficiencies, not that that is the main thrust of my argument. The amendment refers to "disproportionate expenditure", which is a phrase that does not have much meaning in legislation relevant to SEN. When it deals with financial matters, it is generally phrased in terms of "efficient use of resources" and "unreasonable public expenditure". Even if we were to accept the amendment, it would be of doubtful use in construing provisions couched in those terms.

When looking at what the amendment is designed to achieve, I believe that LEAs must be allowed to decide what would be most suitable for each child. Less costly provision can often serve the child as well as, and sometimes even better than, a more expensive alternative. Provided that the LEA can meet the child's needs in full at a more reasonable cost, surely it should be free to do so. LEAs are not required to make Utopian provision for some children but are obliged to make suitable provision for all children with SEN who need it.

If the amendment's intention is to ensure that LEAs do not simply refuse a parental preference on the grounds that the place was more expensive than comparable provision, it is not needed. Under Section 27 of the Education Act 1996, which the noble Baroness knows very well indeed, a parent is free to express a preference for any maintained school, including a special school. Parents can also make representations for any non-maintained school to be named in their child's statement. LEAs must comply with a parental preference unless the school is unsuitable to the child's age, ability, aptitude or special educational needs, or the placement would be incompatible with the efficient education of the other children with whom the child would be educated, or with the efficient use of resources.

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So cost is clearly not the only factor. The cost of an individual placement, compared with other appropriate placements, will be one of the elements when considering whether the placement represents an efficient use of resources--but only one. That ensures that an LEA does not simply refuse a parent's preferred choice of school because it is more expensive than other types of provision. If a school is unsuitable for a child, an LEA could not make it suitable by demonstrating that it was cheaper than the other options.

Where a child's needs can be appropriately and effectively supported in more than one type of provision--for example, either in a mainstream school or in a maintained or non-maintained special school--it is important that we listen to what parents want.

It is important also that the cost implications are considered. We believe that it is right that LEAs should seek to use their resources efficiently. Whether determining a parental preference made in accordance with Schedule 27 or the representations made by parents for an independent school, cost must be considered. If it were not, the interests of all children could be jeopardised. Excessive or inappropriate expenditure on one child could come only at the expense of the learning opportunities of other children.

I should point out also that LEAs seeking to make an efficient use of resources do not necessarily have to settle on the least expensive provision available for a child. The one does not always equate to the other; for example, it might be an efficient use of resources to opt for more expensive provision in the short term so that a child needs less help, and therefore, of course, less funding, in the longer term. It is right that LEAs should be able to consider each case on its merits.

There are safeguards where parents feel that a local education authority may be abusing the system and refusing even to consider a more expensive option. Where they consider the content of a statement of special educational needs to be unacceptable, then they may appeal to the SEN tribunal. The Secretary of State for Education and Employment may investigate other complaints about possible unreasonableness or failure to act in accordance with a statutory duty. We would hope, however, that the new arrangements for resolving disputes between parents and local authorities will help to ensure that practical solutions acceptable to all parties are reached informally and quickly.

This amendment, therefore, would impose a quite unnecessary straitjacket on LEAs and I hope that in the light of what I have said, the noble Baroness, Lady Blatch, will feel able to withdraw the amendment.

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