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Baroness Blatch: My Lords, perhaps I may ask the Minister a question. A concern that has always received a great deal of sympathy in this House in relation to young people with special educational needs—"looked-after children", to invoke the reference of the noble Earl, Lord Listowel—is in relation to children between the ages of 19 and 25. What is the status of that age group when it comes to meeting their needs?

Baroness Ashton of Upholland: My Lords, we have always made sure that within legislation we define where the application of different age groups is. For the purposes of this Bill, what I have said is what would

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apply. I take the noble Baroness's point. But it would be the case that that is applicable for those particular groups in legislation as we have said throughout. So in this context, it is not applicable; but it would be applicable in legislation where we made a point of referring to that particular age group. I am happy to send an explanation to the noble Baroness and place a copy of my letter in the Library of the House, but that is the case for the purposes of this part of the Bill.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 2:

    Page 2, line 7, at end insert—

""children" means persons under the age of nineteen;"

On Question, amendment agreed to.

Clause 2 [Power to suspend statutory requirements etc.]:

Baroness Darcy de Knayth moved Amendment No. 3:

    Page 3, line 10, at end insert—

"(5A) Notwithstanding the provisions of subsection (5), no order under this section shall confer on the applicant exemption from any of the provisions determined by the following sections of the Education Act 1996 (c. 56)—
(a) section 321 (the duty to identify children with special educational needs as defined by section 312);
(b) section 317 (the duty on governing bodies of schools to use their best endeavours to meet the needs of pupils with special educational needs);
(c) section 323 (the duty to assess children's special educational needs, when necessary);
(d) section 324 (the duty to make and maintain statements of special educational needs, when necessary);
(e) section 331 (the duty to assess and provide for children under 2 years of age)."

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 4, which represents a fallback position designed to incorporate in regulations the list of key duties set out in Amendment No. 3; namely, duties of school governing bodies and LEAs towards children with special educational needs.

The purpose of both amendments is to secure for the future the legal safety net for children with special educational needs which was created by certain duties in the Education Act 1981 and which now form part of the Education Act 1996. I am very grateful to my noble friend Lady Warnock, the catalyst of the 1981 Act, and to the noble Baroness, Lady Blatch, the mother of the 1996 Act, for adding their names to these amendments. The proposals have the backing of the Special Educational Needs Consortium, which includes IPSEA. I should declare that I am a patron of IPSEA. These essential duties are set out in Amendment No. 3. I am encouraged that they were identified, apart from Section 331, as key duties in special education law by the Audit Commission in its recent report.

Why are they necessary? Clause 2 as it stands allows the Secretary of State or the National Assembly for Wales to exempt applicant schools and LEAs from any requirements of education legislation to allow the

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implementation of innovative projects that may, in the opinion of the Secretary of State, contribute to the raising of educational standards.

Both in Committee and on Report, several noble Lords moved and spoke to amendments supported by the SEC which were designed to remove legislation relating to children with special educational needs from the Secretary of State's power to exempt.

I shall not bore your Lordships by repeating the speech that I made in Committee on 2nd May, at cols. 845 to 846, stressing that the protection afforded by the statement of special education provision depends on the linking together of several separate duties as set out in Amendment No. 3. Paragraph (b) referring to Section 317 relates to children with special educational needs but without a statement.

As with any chain, the removal of one link—for example, an LEA being relieved of one of its legal duties by a future Secretary of State—would totally undermine a child's legal entitlement to special educational provision. One duties goes, and the safety net collapses.

No one was saying that we should not innovate, but people were concerned that the Bill as it stood threatened the legal safety net. The noble Lord, Lord Lucas, summed it up very well in our debate on 2nd May when he said that the Government must,

    "find a way of making the protections sacrosanct, while leaving as much room as possible for SEN education to do better than is the case at present".—[Official Report, 2/5/02; col. 848.]

The Minister argued at both stages that our amendments would not allow innovative projects to apply to children with SEN. On Report she brought forward an amendment requiring the Secretary of State or the National Assembly for Wales to refuse to use the power to exempt if it,

    "would be likely to have a detrimental effect on the education of children with special educational needs".

That requirement is now included in Clause 2(2)(5). The consortium welcomed this amendment as affording some protection from the consequences of exemption from education legislation. The noble Baroness, Lady Sharp, and my noble friend Lord Rix were satisfied that the amendment secured the protection we had been seeking.

Throughout the passage of the Bill, the Minister has been very generous with the time she has given us for meetings and discussions. I stress that I am in no way imputing an evil intention to the Minister. I know that she is fully committed to the improvement of the lot of children with SEN. During our discussions, I said that I was satisfied with the proposed amendment, but I became increasingly uneasy, as did the SEC, that nowhere does the government amendment in Clause 2(2)(5) state that the key duties are secured. It leaves it to any future Secretary of State to determine whether their suspension would have a detrimental effect on the education of children with special educational needs. I am immensely encouraged by the support of my noble friend Lady Warnock and of the noble Baroness, Lady Blatch.

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Why are we so concerned about the safety net? Innovation and flexibility go hand in hand. Many noble Lords will recognise that "flexibility" can send a shiver down the spine of those who provide support and advice for the parents of children with special educational needs. Noble Lords will remember the debate about quantification of special educational provision in statements, about woolly statements—so christened by the noble Lord, Lord Lucas—being detrimental, and how the then Secretary of State, David Blunkett, agreed two hours before the Second Reading of the Special Educational Needs and Disability Bill that the provision should be specified rather than set out. During the course of that Bill, the noble Baroness, Lady Blackstone, brought forward many amendments in response to mine to plug loopholes in the 1996 Act. The noble Baroness, Lady Ashton, was rightly applauded for her courage and common sense in taking back the draft code of practice and rewriting the relevant parts—one of her first acts as a Minister. All this required pressure and vigilance.

The noble Earl, Lord Russell, is wont to say that Ministers resisting an amendment have two arguments: either that it is wrecking, or that it is unnecessary. I now understand that, while not wrecking the Bill, our previous attempts at amendments all had the effect of barring any innovation for children with special educational needs. I hope that the Minister will not argue that these amendments, pared down to the bare essentials, are unnecessary.

Amendment No. 3 would exempt only the key duties from Clause 2 and would in no way inhibit the ability of LEAs or schools to develop innovative projects aimed at better meeting the needs of all children, but it would keep the safety net in place, just in case, for those children with special educational needs. Let us remember that it is only for the few—the 2 per cent, not the 80 per cent—of those with special educational needs who need the protection of the statement where their school or nursery cannot meet their needs with provision ordinarily available.

Amendment No. 4 would enable all these duties to be specified in regulations, if the Minister agrees—although obviously it would be preferable to have that specified on the face of the Bill. What we need is to be sure that these key duties will remain the law despite exemption for innovation. I hope that the Minister will respond very positively either by accepting one of the amendments or by finding some other way of reassuring us beyond all doubt. It may be that the noble Baroness, Lady Sharp, and my noble friend Lord Rix are right and that the protection is there. But many of us are concerned, as is the SEC. We need it clearly stated that the key duties will remain in place as a matter of law and not at the discretion of the Secretary of State. I beg to move.

3.15 p.m.

Baroness Warnock: My Lords, I want to speak briefly in support of the amendment. I have in mind two points which it makes clearly. One is that the children who are most at risk of being swallowed in the

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excitement of innovations of various kinds may well be those children who fall into the so-called 80 per cent of children who will not have statements. Those are the children who are most in need of having this protection on the face of the Bill.

Secondly, in the new subsection (5A)(a) proposed by the amendment, the duty to identify children with special educational needs must be protected. I believe this to be the most important part of the amendment. A school may innovate by introducing enrichment programmes and all kinds of different ways of teaching children who may have high ability, which I greatly welcome. Nevertheless, in whatever category or class of children—I mean "class" literally—there are certain to be a number of children who will not have statements but who will be entering into, perhaps temporarily, a condition of special educational needs and who have emotional or behavioural problems or who are falling behind in one way or another. It is essential, in the spirit of previous Acts, beginning with the 1981 Act, that the protection for such children should be on the face of the Bill.

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