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Lord Filkin: First, perhaps I may refer to what paragraph 32 of the prospectus means. My noble friend Lord Berkeley was patient and I should deal with it without further delay. The noble Baroness, Lady Walmsley, quoted paragraph 32, which states:
in the neighbourhood. That means that no pupils with SEN will be charged more than other children in the neighbourhood who attend the nearest suitable school; that is, no extra charges if they travel further to a special school, or no extra charges if other children walk a short distance to school that a pupil in a wheelchair cannot.
As regards the specifics of the amendment tabled by the noble Lord, Lord Rix, and others, paragraph 2 of the schedule in the Bill requires local authorities to
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make "appropriate" travel arrangements. What is appropriate will depend on the circumstances in each child's case. When seeking applications to run the new innovative schemes, we will require LEAs to include in their applications a description of how their proposals cater for pupils with statements of SEN and/or pupils with disabilities.
We are clear that "statutory walking distance" is not a relevant criterion where a child physically cannot walk or cannot be expected to walk due to his special needs. If a child cannot walk for those reasons, it would be unreasonable for the local authority to say that it was not appropriate to make travel arrangements for him.
To clarify that, we have made changes to the draft prospectus to the effect that in deciding what is appropriate, the scheme authority should consider the needs of the child, the nature of the route, and so on, and should not take into account parental means.
"Our other area of concern is for pupils with mobility difficulties, and those with SEN, where the minimum obligation to provide transport is not sufficient to meet their needs. Paragraph 2 of the schedule to the Bill requires LEAs to make appropriate travel arrangements for children, and we are clear that a child with mobility or other difficulties who is unable to walk 2 or 3 miles would have to be provided with transport or other assistance. In deciding what transport arrangements are appropriate, the scheme authority should look at the needs of the child, the nature of the route to school and the suitability of existing transport options. Parental means should not play a part in the decision as to whether transport arrangements are suitable".
This up-dated version of the prospectus has been shared with members of the Special Educational Consortium. I pay tribute to the thoughtful way in which the consortium and the noble Lord, Lord Rix, has addressed these issues. It is sensible and realistic. We believe that in principle they are both content with the provisions, but it is important that they are put into the record in Hansard as part of the debate on the amendment.
Other legislation offers protection. Article 14 of the EDHR outlaws discrimination "on any ground", which would include disability, in the exercise of convention rights. Article 14 in conjunction with Article 2 means that scheme authorities may not discriminate on grounds of disability in providing school transport, unless that discrimination can be objectively and reasonably justified.
The noble Baroness, Lady Walmsley, referred to the Joint Committee on Human Rights, questioning whether reliance of "statutory walking distance" was a breach of the non-discrimination provisions. Following our clarification based on paragraph 37 of the published prospectus, the JCHR's 17th report said:
"We welcome the Government's response that, because the draft Bill requires local authorities to make appropriate travel arrangements for children, a child who has mobility difficulties and is unable to walk, or walk 2 or 3 miles, 'would have to be provided with transport or appropriate transport assistance'.".
In addition, the Disability Discrimination Act 1995, as amended by the Special Needs and Disability Act 2001, also places a duty on local authorities not to discriminate against disabled pupils or prospective pupils in discharging their functions under the Education Acts. This would include their functions in providing school transport under Section 509 or our new Section 509ZAA of the 1996 Act. That is to say that a scheme authority could not, for a reason which relates to his disability, treat a disabled pupil less favourably than it treats, or would treat, others to whom that reason does not or would not apply, unless it can show that that treatment is justified.
In summary, while we do not see any strong reasons to go further than the Bill, we would be happy to insert the above references to the DDA and to the ECHR into the prospectus as an up-front reminder to the LEAs of their responsibilities.
The noble Baroness, Lady Walmsley, referred to judicial review. I remind her that because of the power of the Government in terms of agreeing a scheme, we have a strong grip on an authority in that respect. That grip would apply subsequently because if it did something which we felt was in breach, after due inquiry we have the ability to impose sanctions as a consequence.
Lord Berkeley: I would like clarification on one of the Minister's remarks. He said that if in the statutory walking distance an SEN child clearly needs transport, the child may be provided with that transport. However, he did not say whether the parents would have to pay for it or whether it would be free.
Lord Filkin: I shall do my best, but there is probably a limit to how far one should go on expressing exactly how the law will apply in the situation. Essentially, the child who has a disability must not be treated any worse than a comparator child unless that can be specifically justified. Let us imagine a child who was disabled. If a comparator child were not to be charged, the disabled child should also not be charged. If a comparator child were charged, that could mean that the disabled child could be charged
Lord Filkin: But it could be charged no more than the comparator child. I hope that the noble Baroness
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will bear with me. That is a clarification, which I think is essentially what was sought. It is a guarantee of no "worsenment" or disadvantage.
Baroness Walmsley: Will the Minister take into account the point that I made? It was that, if a child lives within the walking-to-school distance and chooses to go on the bus, he or she may be charged and probably will be in future. I think that the Minister is saying that a child with disabilities in such a situation would also be chargedno more, no less. Is that correct?
Lord Filkin: Yes. Within the statutory walking distance of, say, three miles, if a child with SEN or disabilitiesthey may not be physical disabilitiesis able to use the bus, their access to education is effectively not physically impeded. They are able to get to school. If a comparator child were charged a pound for using the busfor the sake of argumentthe disabled child could be charged a pound also. However, the reverse could not apply. The disabled child could not be charged when other children were not to be so charged.
Lord Rix: That still does not make sense. If an able-bodied child chooses to use the bus, perhaps they have to pay charges. If a disabled child is unable to walk, surely the bus should be provided free to move that child from home to school.
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