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Lord Lucas: I agree that the amendment is badly drafted. As I understand it, the Minister has said that the point that I am trying to make will be covered in guidance. Under those circumstances, I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 198A not moved.]

Clause 46 agreed to.

Clause 47 [Admission appeals]:

Baroness Darcy de Knayth moved Amendment No. 199:

"( ) Regulations shall make provision for a legally qualified person, trained in an understanding of the Disability Discrimination Act 1995 (c. 50), as amended by the Special Educational Needs and Disability Act 2001 (c. 10), to chair any appeal panel where a claim of disability discrimination is being heard as part of an admissions appeal."

The noble Baroness said: This amendment would ensure that a "legally qualified person" chairs any appeal panel where a claim of disability discrimination is being heard as part of an admission appeal. The Special Educational Needs and Disability Act 2001 amended the Disability Discrimination Act 1995 (the DDA) to cover education in all aspects of school life—admissions, exclusion, education and associated services. The provision comes into effect this September.

The DDA duties are new. Whereas duties under the special educational needs legislation were about provision meeting needs, the DDA requires schools: first, not to treat disabled pupils less favourably; and, secondly, to make "reasonable adjustments". Those duties have been widely welcomed, because they bring reasonable protection from unlawful discrimination. The National Autistic Society says that children on the autistic spectrum without a statement are frequently turned away from the school of their choice, especially

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those with Asperger's syndrome who are above average academically but need support and social interaction, as well as communication.

The SEC argues that determining whether or not unlawful discrimination has taken place—the questions of less favourable treatment, reasonable adjustments and, perhaps hardest of all, an adequate understanding of the definition of "disability"—is a complex matter. That is why it feels the amendment is necessary.

Other claims of unlawful discrimination will be heard by SENDIST, which has legally qualified chairs and members who will be specially trained over a number of days and develop expertise in hearing cases. This level of knowledge and expertise must be available locally if we are to avoid errors being made.

I hope that the Minister can give an encouraging reply. At any rate, can she say how much training members will have in the DDA? Will the clerk have legal training in the DDA specifically? How will panel members access specialist advice on the DDA? Could a parent feel confident that every panel member will be properly equipped to hear claims of disability discrimination? I beg to move.

Lord Rix: I wish to speak to Amendment No. 200, which stands in my name and that of the noble Baroness, Lady Sharp of Guildford.

There will be some children for whom some schools at particular times can provide an appropriate education without risk of prejudice to the education of other children. However, it is easy for an admissions authority to use this escape clause to deny admission to children who are simply difficult in as much as they require extra effort, extra resources or extra skills because of their special educational needs.

Amendment No. 200 would increase parents' confidence that SENDA tribunals will not conspire with schools in turning special needs into unnecessary barriers. It will do so by ensuring that effective ways of meeting special needs have been fully considered before a decision to deny admission is confirmed, thus avoiding any possible prejudices to the interests of other children. I look forward to a favourable reply.

Lord Lucas: So far as concerns the clause stand part, I merely hope that the noble Baroness will cover a little of what the new clause changes.

Baroness Ashton of Upholland: I shall begin by doing precisely what the noble Lord, Lord Lucas, has asked me to do. Very briefly, this clause amends Section 94 of the School Standards and Framework Act 1998. We intend to prescribe in regulation the arrangements for parents whose child is not offered a place at their preferred school to be able to appeal to an independent appeal panel. Those regulations will simply replicate the existing provisions in Schedule 24 to the 1998 Act.

Apart from replicating Schedule 24 in regulations, we do not intend to make any changes to the arrangements for admission appeal panels at the moment. However, we are monitoring how admission

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appeal panels work and, if any changes become necessary, we will be able to make them more quickly than at present by amending the regulations.

We believe that the current arrangements are sensible and workable. Indeed, recent research by Sheffield Hallam University agrees with this conclusion. Changes are therefore unnecessary. But, as I said, we would like to have the flexibility to respond and make changes if and when they are needed. I hope therefore that the noble Lord, Lord Lucas, will agree that the clause should stand part of the Bill.

As to the point raised by the noble Baroness, Lady Darcy de Knayth, in regard to the training for chairs of appeal panels, from this September the Disability Discrimination Act 1995, as amended by the Special Educational Needs and Disability Act 2001, will apply to access to education for the first time. Schools and local education authorities will be subject to new legal duties not to treat disabled pupils or prospective pupils less favourably than their non-disabled peers without justification and to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage in comparison to non-disabled pupils.

In regard to Amendment No. 199, I suggest that legal qualification is not necessary. By way of comparison, magistrates routinely administer the criminal law without being legally qualified persons but they do of course have access to legal advice from their clerk. Similarly, an appeal panel needs good sense and access to a clerk having legal knowledge and training. We have made it clear in statutory guidance that the clerk to the appeal panel should have legal training and be familiar with admissions and equal opportunities legislation. In addition, specific, targeted training is being developed for chairs of appeal panels that will include training on disability discrimination cases. We also intend to provide additional training material for other panel members.

We are confident, therefore, in relation to Amendment No. 199 that admission appeals panels will be well prepared for their new responsibilities and will be an effective forum for redress in disability discrimination cases in relation to admission to education authority maintained schools. I also make the point that we ought perhaps to wait to see the provisions of the Special Educational Needs and Disability Act in operation before we consider further change.

In addition, Amendment No. 199 presupposes that it will always be possible to identify beforehand those cases in which a claim of disability discrimination is involved. However, this may sometimes not be apparent until an admission appeal is actually being heard. In such cases, if the chair of the panel in question were not legally qualified, the amendment would require the hearing to be discontinued and a new panel convened with a legally qualified chair. This again could be unsatisfactory for the parents and child concerned.

Finally, I would argue that Amendment No. 199 would also be impractical, simply because of the number of appeals that take place each year. Perhaps I

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may remind Members of the Committee that these are locally arranged by individual local education authorities and governing bodies of schools that are their own admission authority, such as foundation and voluntary-aided schools. Appeals panel members are unpaid volunteers. Requiring the panels to include a legally qualified volunteer chair would inevitably mean delays in the appeals process, leaving parents and children with uncertainty for even longer, while a suitable person is found and the panel is arranged.

I hope that the noble Baroness, Lady Darcy de Knayth, will find these views persuasive.

I turn finally to the amendment standing in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Sharp of Guildford. We believe that the amendment is unnecessary. Current legislation already provides children with special educational needs with the protection that the amendment seems to be seeking.

Section 86 of the School Standards and Framework Act places a duty on education authorities and governing bodies of maintained schools to comply with any parental preference, expressed in accordance with local arrangements, as to the school at which they want their child to be educated. However, this duty does not apply in relation to any child where compliance with the duty would prejudice efficient education or would be incompatible with wholly selective admission arrangements. These admission provisions apply to the majority of children with special educational needs, since the majority do not have special educational needs statements.

The school admissions code of practice advises that, so far as possible, any arrangements for testing ability or aptitude should be accessible to children with special educational needs, and gives examples of how this might be achieved. The code also makes clear that children with special educational needs but no statement should be treated as fairly under a school's admission criteria, including its over-subscription criteria, as other applicants.

Where children with special educational needs, but for whom statements are not maintained, fulfil the criteria to be admitted to a selective maintained school, the school is under a duty to use its best endeavours to make the provision which their learning difficulties call for. This might include support for any particular aptitudes and abilities which such children may have.

The admissions provisions in the School Standards and Framework Act, including those relating to appeals, generally do not apply to children with statements of special educational needs. Under the

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1996 Act, the admission route for such children is through a school being named in a statement; parental appeals against the content of the statement (including the school named) are considered by the Special Educational Needs Tribunal rather than by local admission appeals panels. Where parents express a preference for a school, it must be one that is suitable for the child, bearing in mind his or her age, aptitude and ability, if it is to be named in the statement.

I hope that the noble Lord, Lord Rix, and the noble Baroness, Lady Sharp, will agree, therefore, that the proposed amendment is unnecessary and will not press it.

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