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Baroness Walmsley: This amendment is very similar to the third part of the next amendment in my name and therefore I want to say a few words about it now. I do not think that the noble Lord, Lord Berkeley, is the only one who is, as he described himself, thick. I think we are all thick because I, too, was somewhat confused by the Minister's earlier answer, detailed and careful though it was.
It strikes me that the Minister was saying that a child with an SEN or a disability may have to pay for his transport if he lives within the walking-to-school limit if his parents are not protected from charges because they are on a low income. That is a problem. I tried to intervene earlier but was too long-winded in making my point and another noble Lord intervened. The fact is that an able-bodied child can avoid such charges by deciding to walk to school but a child with disabilities cannot do so. That is the difference and that is why I do not think that disabled children are being treated the same as those who are fully able-bodied. Both groups of children may live within the statutory distance and be charged for their transport but they are different.
Lord Filkin: I suspect that any confusion is my fault but this is also a complicated issue. Therefore, I shall
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go once more into the breach, but it may well mean that noble Lords will be threatened with a seriousbut, I hope, not too complexand very thorough letter on these matters.
I shall start where the noble Baroness, Lady Walmsley, ended and set out the position on one point. She said that it would be unreasonable for children with some form of special educational needs within the three-mile limit to have to pay if they were within walking distance. But that is the current situation. Many children with SEN living within a three-mile limit may currently be paying something towards their transport. That is a fact of life and it is the current situation. Not every child with SEN receives totally free transport.
I turn to the specific example given by my noble friend Lord Berkley. One should never respond to specific examples from the Dispatch Box but it may be helpful in this case. The charges will not be high, if paid at all. They would be no more than those for a child who travels to an ordinary school. Of course, that situation in London is relatively straightforward because, as from September, all transport for children in London will be free. Therefore, it follows that in that situation transport for SEN pupils must also be free so that there is no worsenment under the ECHR.
Under the legislation, a child with SEN would be protected if his peer group walked to school but not if the peer group paid for transport by bus. But the child in question would not pay any more than the peer group on the bus, irrespective of the complexity of need or the distance travelled by the child with SEN. The issue is not simple but I hope that I have started to clarify the matter, although my letter may achieve more. If the Committee can bear with me, I shall give noble Lords the full benefit of my admirable speaking notes because, again, that may help reflection.
A number of problems are associated with Amendment No. 8not least that a child with special educational needs is not a legally defined term and there are no entitlements to free transport as such. An LEA is under a duty to provide transport where it considers it necessary to facilitate attendance.
Amendment No. 21 seeks to include in the definition of "protected child" a limited proportion of children with a special educational need or a disability. Those included will be pupils who, because of their SEN or disability, are unable to use transport ordinarily available to children without that SEN or disability and who attend the nearest suitable school or another school where it has been agreed with the scheme authorities that they should be registered as a consequence of their SEN. Amendment No. 23 seeks to ensure that any pupils with mobility problems that prevent them walking to school will have transport provided and that they will be protected from charges.
From my discussions with the Special Educational Consortium, I know that there is a helpful consensus that parents of pupils with an SEN should not be disadvantaged in comparison with parents whose children make their own way to their local school on
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foot or by bicycle or bus and that, where possible, improvements to existing arrangements might accrue from travel schemes.
After listening to these points being made in another place, we have provided a number of clarifications of that policy. LEAs will need to include in scheme applications their policy on providing transport to pupils with SEN. They are not approved schemes unless they protect pupils with SEN or mobility problems from charges which would be additional to those that accrue to the parents of pupils of the same age in the area in which they reside where special arrangements have been made by reason of disability or special needs.
These provisions would cover transport provided as a result of mobility limitations or where a child's SEN prevented him making his way to school independently on foot where that was the normal mode of travel for children resident in the neighbourhood. It would also cover transport provided in order to meet a pupil's SEN where it could not be met through transport available to pupils generally in an area. It would include specialised transport to a local school attended by pupils with SEN and non-specialised transport to schools further away than those attended by pupils resident in the area.
However, we cannot accept that throughout the Bill all SEN children can necessarily be protected from charges and that all SEN children should be able to travel free. I believe that in part that is what is behind the amendment. That is not currently the law and we do not think that it should be the law in the future. If, on the back of this Bill, one sought to make a major change of this sort, it would effectively frustrate to a major extent any possibility of flexibility or creativity by local authorities.
It would be a nice world in which every parent of a child with SEN, whatever the nature of the disability, had everything free. But that is not the current law and we do not believe that it is reasonable to change the law in this respect. I pay tribute to the noble Lord, Lord Rix, for the fact that, when we touched on this matter at Second Reading, he made it clear that he was not seeking to be adventurous in that respect on the back of this Bill. That was reputable, given the pressures that were no doubt placed on him. I think that that was the difference between us and the noble Baroness, Lady Walmsley, on this matter.
In many respects, the measure that I have outlined goes further than the amendment. It protects pupils who are unable to walk or cycle to school, along with their peers, from charges where they require transport. The amendment offers protection for children only where transport is normally available to the child's peers. In addition, there are practical difficulties but I shall not go into those.
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With regard to Amendment No. 23, the children in question must already be provided with transport where it is needed. The Bill requires scheme authorities to make such travel arrangements as they consider appropriate for each child.
Amendment No. 25 seeks to extend free school transport to pupils who have to attend a specific school because it caters for their special educational needs. I agree that it is important that transport costs and availability do not prevent pupils with SEN attending the nearest school that makes appropriate provision for those needs. However, I think that the existing system strikes the right balance between the needs of this group and the needs of mainstream pupils. Pupils with statements of special educational needs may have specialised transport needs, such as oxygen dependency or measures to prevent those with brittle bone disease sustaining injuries. In these cases, the statement will set out the type of transport that is requiredwhich will continue to be provided free.
In other cases, pupils with SEN will be able to attend a mainstream school alongside their peers and share transport. Pupils with severe dyslexia, for example, may fall into this category, as may pupils who are blind or deaf. In these cases, we would expect pupils with SEN to be treated in the same way as their mainstream peerswhich is the situation now.
Some other pupils with special educational needs will have to travel to special schools or mainstream schools with specialised units attached. In these cases, children may have to travel a significant distance to a suitable school. If a local travel scheme has charges in place, then their parents are more likely to have to pay than when their children attend mainstream provision. We fully understand that parents in these circumstances may think that additional charges are unfair and I think that we have made it clear that LEAs will not be able to discriminate in that way.
This does not specify that the school has to be the closest school that can cater for the pupil with special educational needs. A parent could choose a school a considerable distance away rather than one with adequate provision that is closer to home. In some cases, a further school may be named on a statement by agreement between parents and the local education authority, with the agreement that parents will pay for transportputting these parents in the same position as other parents who exercise parental preference in the educational mainstream.
If the Bill overturned these existing agreements which work, making all transport to special schools free, there could be unacceptable pressure on LEA budgets. We are not using the Bill to change the existing structure of protection further than is required to ensure compliance with the ECHR or DDA, or whatever.
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I hope that the Committee will accept that a blanket exemption from charges for all pupils with SEN is not appropriate, as a proportionate response, for the reasons that I have given. Nevertheless, this stuff is so complex that I hope the Committee will bear with me in sending a pretty full and as succinct a letter as possible in the circumstancesperhaps with some illustrations, because the more we illustrate it the more likely it is to be grounded in real life, rather than lawyers' necessary sophistications.
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