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Baroness Walmsley: I rise to support Amendment No. 217 moved by the noble Baroness, Lady Darcy de Knayth, and to speak to Amendments Nos. 221 and 225 tabled in my name and that of my noble friend Lady Sharp.

In view of the large number of excluded children who have special educational needs, it seems to me that it is vital that the nature of such needs is well understood by those charged with giving them an education—it is to be hoped with a view to reintegrating them into the mainstream, if appropriate, at some future date. It is also vital that they are obliged to take notice of that information. I echo the concern expressed by the noble Baroness, Lady Darcy de Knayth, that the reason for the exclusion in the first place may be partly because of the inability of the school to deal appropriately with a child's special needs. How much more important, therefore, that this situation is not perpetuated in the child's new educational environment.

Amendment No. 221 seeks to ensure that LEAs provide sufficient resources in the school, or pupil referral unit, to meet the needs of children and young

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people with emotional and behavioural difficulties. It should always be the case that exclusion is used as a last resort by head teachers seeking to protect the rest of the children in the school and to find an environment more suited to their particular needs.

The Government recently introduced a number of measures that may, if successful, reduce the incidence of high level disruptive behaviour. We also welcome the commitment to provide full-time education to excluded pupils. However, there has been little so far to address the every-day concerns of both teachers and pupils whose lessons are disrupted by pupils with special emotional and behavioural needs within the mainstream. Despite the fact that there is a responsibility on central government and LEAs to meet the needs of these pupils, there is nothing on the face of the Bill to ensure that those needs are met.

There are many things that can be done in this respect. On a recent visit to Japan, I was very impressed to learn that every school has a professional counsellor available to help children with emotional and behavioural problems. I wonder whether the problem of disruption has become so great that something of the sort may be needed in this country. Whatever the solution, the matter is one of great concern both to teachers and to other pupils, as a number of recent consultations have shown. For example, in the recent teacher workload study, PricewaterhouseCooper found deteriorating pupil behaviour to be a major concern. An annual survey of pupils' views conducted by Keele University found the same concerns among them.

I recently received one view of the matter from a year 10 pupil, Sheila Begum from Swanlea School in Whitechapel. She said:


    "From my point of view, I think kicking pupils out of school permanently is not the best thing to do and is not the answer to improve pupils' behaviours. From my school, I have seen so many pupils being expelled, whose immature behaviour has increased or stayed the same after being expelled. I think that pupils who have bad behaviours at school and put others' lives in danger should be put in a behaviour school where they can get punished, but still continue with their education".

The Government have stated that they are committed to a focus on,


    "prevention, early intervention and the provision of education for long term excluded children",

so why not include the provision of appropriate resources on the face of the Bill?

The Earl of Listowel: I should like to speak to Amendments Nos. 219 and 222, which are tabled in my name and that of the noble Lord, Lord Lucas. In doing so, I shall speak also to Amendment No. 224, which is tabled solely in my name. I should mention that this amendment has the support of both the British Psychological Society and the Who Cares? Trust. I have often heard from teachers and educational psychologists that not enough children are being assessed for special educational needs. We heard this at the beginning of our debates this afternoon; and, indeed, we have heard it several times during the

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course of this debate. Those with conduct disorders or emotional disorders are being overlooked and often treated as being "naughty" rather than in need of help.

Two separate reports in the 1990s of academic research found that approximately 90 per cent of excluded pupils were presenting with special educational needs. In the light of that research evidence, the case for the utilisation of the Special Educational Needs and Disability Tribunal is very strong. In his critique of the school exclusion appeal system entitled Challenges to School Exclusion, Professor Neville Harris urged that panels should be able to play both a judicial and a welfare role, recommending next steps for children.

Under the terms of Amendment No. 222, the Special Educational Needs and Disability Tribunal, in tandem with the Community Legal Service, could play an important role in spotting children who should have received a statement but have been missed. Together, they could make a significant improvement to current practice.

The purpose of Amendment No. 224 is to ensure that excluded children receive a fair hearing. Perhaps I may take this opportunity to thank the noble Baroness, Lady Blatch, for her earlier support, which I much appreciated, for the idea of advocacy for looked-after children in school. Exclusion is a critical event in the lives of these children. The Leggatt report on tribunals recommended that tribunals, such as independent appeals panels, should have a legally qualified chair. Professor Neville Harris has also recommended that panels should be chaired by appropriately trained lawyers.

These cases are becoming increasingly complex—a complexity that will be sharpened by the implementation of the Special Educational Needs and Disability Act 2001. An exclusion clerk, a former deputy head of a special school, suggested to me that a legally-qualified chair would ensure greater consistency in outcome, which would be welcomed by schools. I would prefer the amendment of the noble Lord, Lord Lucas, but, failing that, I hope that my amendment will find sympathy with the Minister.

7.30 p.m.

Baroness Ashton of Upholland: Before I begin to speak to this group of amendments, perhaps I may make clear the fact that I have a good deal of sympathy with the intentions that lie behind them. That applies also to the remarks made by all noble Lords who have spoken in this debate. At this point it may be helpful for me to make a few general remarks which may take the debate forward.

In this Bill we are trying to set out the key principles of the law, which will be backed up by provision in regulations and in guidance. While our view is that legislation must be in place to secure the key rights and duties of all parties concerned, we equally know that legislation can be a blunt instrument when dealing with very serious matters of judgment and as regards guiding appeal panels to ensure that all appeals are heard on their merits.

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I turn to Amendment No. 217, moved by the noble Baroness, Lady Darcy de Knayth. Although I sympathise with the intention of the amendment, I believe that it is a matter best left to guidance. We are very aware of the increased risk of exclusion that children with SEN face. I do not think that the noble Baroness was in the Chamber earlier when I said that the figures that have been released today were interesting. The figure that such children were seven times more likely to be excluded has dropped to three times more likely. That figure is still on the wrong side, but it is interesting and I look forward to discussing it in more detail with the noble Baroness and others as we begin to understand precisely what has happened.

We have put in place a requirement on local education authorities to arrange for parents of children with SEN to be provided with advice and information about matters relating to their child's needs. The LEA must make this service known to appropriate people and must make arrangements to avoid or resolve disagreements between parents, schools and LEAs.

The guidance on exclusions also makes it clear that schools should avoid permanently excluding pupils with statements or who are being assessed for a statement. I believe that such matters are best left to guidance. But we shall look to ensure that the guidance is as clear as it can be on that point.

I turn to Amendment No. 218. This part of the Bill refers to both permanent and temporary exclusions. If it were a permanent exclusion, there would be a right of appeal, so that is why the wording is as it is. I assure noble Lords that in making regulations we intend to preserve the key features of the existing exclusion and exclusion appeal legislation which builds in rights for parents, pupils and schools.

In addition, we are establishing a right of appeal in relation to exclusions from pupil referral units. As I said, the clause deals with both permanent and fixed term exclusions. Under the provisions included in Sections 64 to 67 of, and Schedule 18 to, the School Standards and Framework Act 1998, only parents of pupils who have been permanently excluded may appeal to an independent appeal panel. As noble Lords will know, fixed period exclusions do not attract the same rights—they are a matter for the governing body alone.

Therefore, the wording in the Bill is intended only to preserve this position. There will be a right of appeal to an independent panel in relation to all permanent exclusions, but not in relation to fixed period exclusions. I hope that that reassures the noble Lord, Lord Lucas.

Amendments Nos. 219, 223 and 224 all deal with the nature of the body that hears exclusion appeals. Amendment No. 219 seeks to have appeals heard by the SEN and Disability Tribunal, while Amendments Nos. 223 and 224 suggest that there should be legally qualified chairs of appeal panels.

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It is my view that exclusion appeals are, and will be adequately dealt with by independent appeal panels. The task of an exclusion appeal panel is quite simple. It must first consider whether the pupil committed the offence, or offences, which prompted his or her exclusion. If the answer is yes, the question that it then has to consider is whether permanent exclusion is a reasonable response to that behaviour, taking account of all the circumstances and any mitigating or aggravating factors. Panels provide an appropriate forum for redress and an appropriate educational remedy. They can direct reinstatement.

We believe that a lay panel can deal with those issues without the need for a lawyer to chair the panel. There is a risk that the requirement to involve a lawyer would unnecessarily formalise the appeal process, potentially raise costs and cause delays in constituting a panel. Appeal panel members are unpaid volunteers and panels are arranged locally by LEAs, involving local people of good sense, if I may so describe them, many of whom are known to your Lordships. We believe that they can perform the job well.

We have made it clear in statutory guidance that we expect every clerk to the appeal panel to have legal training and to be familiar with exclusions and equal opportunities legislation. I hope that that gives the noble Baroness the reassurance that she seeks. Exclusion appeal panels already deal satisfactorily with issues including sex and race equality, and there is no reason to believe that they will be unable to deal satisfactorily with issues of disability discrimination.

I would also point out that the new arrangements introduced by the SEN and Disability Act will apply for the first time from September this year. During the passage of that Act, our starting point in considering rights of redress was to use the existing appeals mechanisms where they were suitable. Therefore, although the SEN and disability tribunal will hear most cases of disability discrimination, it does not have jurisdiction to deal with exclusion appeals. The House accepted during the passage of the SEN and Disability Act that independent appeal panels were the best route for hearing appeals against permanent exclusion from maintained schools. The panels work well and can provide a quick and appropriate remedy by directing the school to reinstate the child.

In turning to Amendment No. 220, I can assure the noble Lord, Lord Lucas, and others that we are committed to providing every excluded child with an appropriate education suitable to age, ability, aptitude and any special educational needs. That is why we have said that we want every LEA by September of this year to provide full-time education for all pupils excluded for more than 15 school days.

However, I do not believe that the independent appeal panels should be given powers to deal with the LEA's duty under Section 19(1) of the Education Act 1996. The appropriate remedy if a child has been wrongly excluded is clear—reinstatement. But an independent panel has no power and is not the right body to direct an LEA as to how it should discharge its duty to provide suitable education for that child. There

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is an existing mechanism for resolving disputes between parents and LEAs on this duty under Section 496 of the Education Act 1996.

In relation to Amendment No. 225, I am grateful to the noble Baroness, Lady Walmsley, for allowing me to make it clear that we shall certainly keep exclusions guidance in force. The existing guidance is set out in circular 10/99, which explains what should be done before resorting to exclusion, when exclusion should be used and the procedures for excluding pupils. We have issued for consultation draft revised guidance and plan to issue revised guidance in its final form later this year.

I turn to Amendment No. 226. The current guidance on social inclusion and pupil support already makes it clear that a head teacher who excludes a pupil should notify the parent immediately, ideally by telephone, and should write within one school day. The letter should include the name and telephone number of a contact at the LEA who can provide advice on the exclusions process, and a helpline number for the Advisory Centre for Education, an independent body that is well known to the noble Lord, Lord Lucas, and others, which provides free advice and support for the parents of excluded pupils.

We have strengthened the arrangements for identifying, assessing and providing for children's special educational needs and have taken action to promote partnership between parents, schools and local education authorities. I therefore believe that strong arrangements are being put in place to support children with SEN and their parents in these circumstances.

I now turn to Amendments Nos. 221 and 227. I confirm that the important matters in Amendment No. 221 will be dealt with in guidance, which can more fully set out the subtle matters of judgment to be taken into account here. To address the first part of the amendment, Clause 49(4)(b) requires a person or body administering or reviewing an exclusion


    "to have regard to any guidance given from time to time . . . by the Secretary of State or . . . the National Assembly for Wales".

I believe that to put such matters in regulations would be too inflexible.

The second part of Amendment No. 221 covers an important issue, which is also addressed by Amendment No. 227, which is the reintegration of an excluded pupil. The noble Baroness, Lady Darcy de Knayth, has already referred to the judgment that was handed down, from which I shall quote shortly. This is an important part. The Appeal Court has recently confirmed that an appeal panel's direction to reinstate means the removal of the exclusion but not necessarily a return to the status quo. Lord Justice Laws in his lead judgment said:


    "The reality is that once he is reinstated, his exclusion is cancelled and he is to be treated like any other pupil; and in respect of any pupil, special or particular measures or initiatives may be required at any time".

That means that although it must always be the intention to ensure that the reinstated pupil is fully re-integrated into school as quickly as possible, there may

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be circumstances when an immediate return to the classroom on the same conditions will not be possible. I think that deciding how to manage a pupil's reinstatement is best left to the judgment of the school or PRU concerned, perhaps with assistance from the LEA, taking into account all relevant factors and conditions.

I hope that in the light of all I have said, noble Lords will be able to withdraw their amendments.


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