We have identified the parameters within which I hope it will be possible to identify a formula that we can live with and that will stick in the legislation for years to come. I hope that we will be able to have a discussion with Ministers and the department on these issues, basing ourselves on this debate which has identified the parameters of discussions within which we need to forge a legislative formula. I hope that we can pursue those discussions after today and come back with something that we can unite around on Report. With that, I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

Amendments 112 to 117 not moved.

Clause 30 agreed.

Amendment 118 not moved.

Clause 31 agreed.

Clause 32: Advice and information for parents and young people

The Deputy Chairman of Committees (Lord Haskel) (Lab): My Lords, there is an error in Amendment 119. It should read, “Page 26, line 16, after the first ‘responsible’, insert ‘and children’”.

Amendments 119 to 122 not moved.

Clause 32 agreed.

Amendment 123 not moved.

Clause 33: Children and young people with EHC plans

Amendment 123A

Moved by Lord Low of Dalston

123A: Clause 33, page 26, line 38, leave out paragraph (b)

Lord Low of Dalston: This is beginning to feel a bit like hard work. I shall speak also to my Amendment 126, which is in this group. I am not quite sure why it is in this group but it is, so I shall speak to it. Clause 33 provides that a local authority is not required to secure the education of a child or young person with

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special educational needs in a maintained nursery school, mainstream school or mainstream post-16 institution where it is incompatible with the provision of efficient education for others. This reproduces the wording of the current legislation relating to school education but is not present in the current learning difficulty assessment guidance that covers learners moving to and within post-16 provision. It has been put to me that subsection (2)(b) should be deleted to ensure that colleges and post-16 institutions continue to make the necessary adjustments to include disabled applicants. This includes making adjustments to provisions, criteria and practices, and the provision of auxiliary aids and services.

In the context of post-16 education, the retention of subsection (2)(b) could undermine students’ existing rights and protections under the Equality Act, and provide an excuse for colleges to exclude learners with learning difficulties and/or disabilities on the grounds of cost or inconvenience to other students. In other words, it would interpose a hurdle that does not exist at present in relation to post-16 education. Furthermore, there is an inconsistency in that those learners without an education, health and care plan cannot be refused a place on these grounds. The implication is that a disabled person with a plan potentially has fewer rights than one without. It is not quite clear why subsection (2)(b) is needed when the Equality Act is clear on the requirements around reasonable adjustments.

These arguments clearly have force so far as post-school education is concerned but, thinking about it, they have just as much force as regards school education. In any case, in a Bill which introduces a unified approach for all those aged nought to 25, it seems clear that the language should be consistent across the whole age range. It therefore seems only right to delete subsection (2)(b) altogether, which is what Amendment 123A would achieve.

The purpose of Amendment 126 is to protect a child or young person with a special educational need and ensure that they get the education and support best suited to them. The provision contained in Clause 34(9) would allow a special school, academy or free school to admit a child without a statutory assessment of their needs and without an education, health and care plan. Currently, any child who has special educational needs but who does not have a statement must be educated in a mainstream school. The change that Clause 34(9) would bring about undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as being the most appropriate placement, following a statutory assessment process, and where it is in line with the wishes of the parent.

The draft code of practice suggests that an individual professional, such as an educational psychologist, could provide a report to support a child’s admission to a special academy or free school. This could constitute a diminution in parents’ rights to express a preference for a particular school in the full knowledge of the nature of their child’s needs, as assessed by a range of professionals. Inclusion of this provision seems to devalue the assessment and planning process which sits at the heart of the Government’s reforms. It seems

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obvious, too, that any head teacher would want as much information as possible about a new child or young person with a special educational need to be sure that the school could meet their needs.

There is also concern that a placement agreed in this way without an assessment and a plan would provide parents and carers with no entitlement to an annual review or any right of appeal. This provision would also make it easier for those head teachers who are reluctant to accept a child or young person with a special educational need to try to persuade parents that their child would be better off in a special school, thus undermining the principle of inclusion we were talking about last week. Therefore, it seems clear that the process of admission of children and young people with special educational needs to special schools should continue to be based on assessment, as at present. It would be dangerous to dispense with that, as I think would be the result of Clause 34(9). I beg to move.

7.15 pm

Baroness Jones of Whitchurch: My Lords, I shall speak to our Amendment 124 in this group and support the arguments which the noble Lord, Lord Low, has put forward in support of his amendment.

We began this debate about inclusion and access to mainstream education in Committee last week, but I am very pleased to have the opportunity to return to some of those issues. During that debate, the Minister sought to reassure us that duties were already in existence, including under the Equality Act 2010, to prevent discrimination against disabled people and that that addressed some of the issues about which we were concerned. However, I support the amendments that have been tabled by the noble Baroness, Lady Howe, because she has identified some of the remaining contradictions between the Equality Act and some of the duties that this Bill is spelling out. It is important that those issues are bottomed out, and I support her amendments.

We remain concerned that, by agreeing to this wording unamended, we will be introducing a get-out clause which would allow schools to duck out of their responsibilities to provide mainstream education when requested. As the noble Lord, Lord Low, pointed out, Clause 33 places a duty on local authorities to ensure that children and young people with an EHC plan are placed in mainstream education. There are two important caveats. The first is if a place is incompatible with the wishes of the child’s parents or the young person. Obviously we support that caveat. As we have said before, parental choice and the views of young people are crucial in identifying the best educational provision for a particular child.

It seems to us that the second caveat goes against the whole spirit and intent of the Bill. Clause 33(2)(b) provides that local authorities can opt out of providing mainstream education if it is incompatible with,

“the provision of efficient education for others”.

We feel that we should have moved on from that wording at this stage.

The wording raises questions about who defines what level of disruption is incompatible with efficient education. For example, could it be argued that any

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child with health issues in a school environment could potentially interfere with the efficient education of others? Or could any child whose educational needs required additional attention from a teacher arguably be taking the teacher’s time away from others, thereby affecting their education? How far are we going to apply this wording?

The Minister said that the Equality Act protects against discrimination, but is there not something rather worrying about defining disabled children’s rights by the level of inconvenience that they might cause? Therefore, our amendment would remove that reference and replace it with a much more positive commitment to meet the specific needs of children and young people.

Reference has been made to the draft code of conduct. It appears to me that it adds a further reason why a request for mainstream education could be refused, and that is the incompatibility with the efficient use of resources. As I understand it, this used to be a factor that schools could fall back on, basically arguing that it was too costly to educate children with SEN in mainstream schools. However, it was removed by the previous Government in 2001, so it now appears that we are going backwards, making it more difficult to access mainstream education.

We believe that ensuring that the needs and wishes of children, young people and their families ought to be the only justifiable basis on which they should be placed in a non-mainstream setting. We acknowledge that many mainstream schools still lack the capacity to provide a good education to children with certain learning difficulties and disabilities, but surely the solution is to address those failings in a structured and positive way within a given timetable, not to give those schools an opt-out. However, we have to accept that some schools are reluctant to admit children with special educational needs or to take the steps necessary to modify their facilities, particularly with the pressure of league tables uppermost in their minds. There is no doubt that some academies and free schools are seeking to operate more stringent admissions policies. This comes back to the issues raised by the Equality and Human Rights Commission about the alignment of the reasonable adjustment duty with the duties in the Bill. We need to make sure that they are properly aligned. Our concern is that the provisions in the Bill and the draft code of conduct give schools an excuse not to make any changes.

At Second Reading, this issue was addressed with some passion by several noble Lords, including the noble Baroness, Lady Grey-Thompson. We feel there is a need to address the failings in the Bill and the code in this respect. The Green Paper referred to creating a bias towards inclusion. If we are serious about that, we should remove Clause 33(2)(b). In his letter to Peers after Second Reading, the Minister referred to the fact that the Bill already provides for the wishes of children, young people and their parents to be taken into account and, of course, it does, but that misses the point if their wishes can be overridden by the needs of so-called efficient education for others or the efficient use of resources. I hope the Minister will take these issues seriously and look again at what we believe

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is increasingly backward-looking wording which goes so far against the spirit and intent of the Bill and that we can come back with a more positive form of words.

Baroness Howe of Idlicote: My Lords, I have three amendments in this group, two of them on equality rights. I shall start with Amendment 125, which is a probing amendment regarding a concern of the Association of Educational Psychologists. There are two more amendments later, but I want to deal with this amendment because in answering the Minister may be able to give reassurance.

Currently any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps ensure that children and young people are not inappropriately placed in special schools. The concern is that Clause 34(3) allows special academies, including free schools, to admit children or young people permanently without them having had their special educational needs statutorily assessed or an EHC plan having been put in place for them. This proposal seems to undermine the principle that a mainstream school must be able to make provision for all children without a statement or plan and for most children with a statement or plan.

Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice, such as a report from an educational psychologist, the concern is that there is no formal role for the local authority in this process. The worry is that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young persons with EHC plans, extremely difficult.

If this proposal went through, there would be a danger that mainstream special schools would be incentivised to persuade parents that their child would be better off in a special school just because they do not want them in their schools. This would take us back to the situation that existed before the Education Act 1981. There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this clause remains, I would question the point of mainstream places within a special school.

I fear that this proposal would result in medical labels determining whether a child secures a place in a special academy. If a special academy had been set up for a particular type of SEN—for example, SpLD or ASD/Asperger’s—would it result in an increase in the number of children being diagnosed with that condition? How can the Government ensure that there is a framework process so that inappropriate placements do not occur?

There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would educational psychologists’ views be protected and advocated? How would places be allocated within school year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan

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places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they are making adequate progress?

This amendment has been tabled because it is hoped that the Minister will look again at the proposals and help to allay serious concerns in the SEN sector that this clause could result in children and young people being inappropriately placed in special schools. Ideally, the Association of Educational Psychologists would like to see the clause amended so that special academies are not able to admit children and young people without an EHC plan. I hope that when the Minister replies he will be able to dispel those doubts.

I turn now to Clause 33, which relates to children and young people with education, health and care plans, and Clause 34, which relates to children and young people with special educational needs but no education, health and care plans. Amendment 124A seeks to insert a new subsection in Clause 33 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

Amendment 126A seeks to insert a new subsection in Clause 34 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

The amendments are about ensuring that schools and local authorities are fully aware of the reasonable adjustments duty owed by schools to disabled pupils where the child has special educational needs. Some disabled pupils will have special educational needs and may be receiving support via school-based special educational needs provision or have an educational, health and care plan under the new arrangements. Just because a disabled pupil has special educational needs or an education, health and care plan, it does not take away a school’s duty to make reasonable adjustments for them.

7.30 pm

In practice, many disabled pupils who also have an education, health and care plan will receive all the support that they need through the special educational needs framework, and the school will have to do nothing extra. However, some disabled pupils will not have special educational needs, and some disabled pupils with special educational needs will still need reasonable adjustments to be made for them in addition to any support they receive through the special educational needs framework. The duty to make reasonable adjustments requires a school to take positive steps to ensure that disabled students can fully participate in the education provided by the school and that they can enjoy the other benefits, facilities and services that the school provides for pupils.

Many reasonable adjustments are inexpensive and will often involve a change of practice rather than the provision of expensive pieces of equipment or additional staff. Many of the reasonable adjustments that schools

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are already making for disabled pupils undoubtedly include the use of some auxiliary aids, such as coloured layovers for dyslexic pupils, pen grips, adapted PE equipment and adapted keyboards and computer software. These adjustments are often low cost and easily available—indeed, some of them were mentioned by the noble Lord, Lord Addington. For example, a disabled pupil has a statement of special educational needs and attends a mainstream secondary school. Through her statement, she receives two hours a week of specialist teaching and uses an electronic note-taker in lessons. Since the support that she requires is provided through her statement, the school does not have to make reasonable adjustments by providing these auxiliary aids and services for her. A second example would be where a disabled pupil at an infants’ school has diabetes and requires daily support with reading blood sugar levels and insulin injections. He is not classified as having special educational needs and therefore receives no support through the SEN framework. He is, however, disabled, and if the lack of daily support places him at a substantial disadvantage, the school is under a duty to make the adjustment of providing support if it would be reasonable to do so.

These are two important amendments, and I very much hope that the Minister will respond sympathetically and agree with them. No doubt, it will again be a question of adapting what is required to fit within the Government’s framework.

The Earl of Listowel: Listening to noble Lords speaking to this string of amendments I am reminded of the challenges that our school workforce faces. The best teachers know that inclusion benefits the whole school. It is nevertheless challenging to try as far as possible to include every child in schools. I am reminded of the reputation of Finland, which has an inclusive school system, a high-status teaching profession and for many years has successfully recruited and retained high-calibre graduates who work seamlessly with health and other social services in that country.

This is a good opportunity to thank the Minister for his recent letter following our debate on child development training for teachers. He highlighted that, in these standards for teachers, there is a now a clear standard for child development. That is very welcome. I think of an experience a few years ago, working with a child psychotherapist on a paper. He provided support to staff groups in 10 schools in Brent, north London. He found that teachers and school staff who had this support—a group discussion of work in the school—on a regular basis were found, over a period of time, to have a lower rate of sickness absence because they had the opportunity to think about what they were doing, and were supported in that by a professional. He also offered the service to Westminster School, around the corner from here, of which he was a former pupil.

To make this happen, and make our schools as inclusive as possible, we need above all to recruit, retain and support the workforce that can do this. I am encouraged by what the Government have done in making it clear in the standards that child development is now very much expected to be well understood by our teaching workforce.

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Baroness Sharp of Guildford (LD): My Lords, my name is attached to Amendment 125. I was slightly surprised by this amendment and spent some time puzzling as to what the noble Baroness, Lady Howe, meant by it. I am not totally sure when my name got attached to it but it did and I therefore briefed myself accordingly. I think I am right that the noble Baroness previously argued for the deletion of Clause 34(9) rather than subsection (3). She argued against special academies and so forth. Subsection (3) says:

“The child or young person may be educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State”.

As I understand it, the noble Baroness did not argue about that subsection at all.

Nevertheless, I have a question about this area. I really saw this as a probing amendment because I cannot quite see how it is compatible with Clause 59, which deals with the local authority paying fees for special educational provision and makes it quite clear. My reading of Clause 34 is that it effectively says that no child may go to a special school except in very special circumstances and when everybody else agrees. Then Clause 59 makes it clear that a child without an EHC plan may be at a special school and paid for by a local authority. Yet it may be that that child, without an EHC plan and paid for by a local authority, needs to be assessed and sent to a special school. It strikes me that there is an incompatibility between those two.

Baroness Howe of Idlicote: To make it clear, I suggested that it was a probing amendment. As it had been tabled, I felt it was my duty to put the case given to me. I am sorry that the noble Baroness and I did not have time to discuss it.

Baroness Sharp of Guildford: I am sorry about that, too. While I am on my feet, I should say that I have a great deal of sympathy with the other amendments in this group. In particular, I sympathise with the arguments put forward by the noble Lord, Lord Low. In some ways, my preference would be for Amendment 124 because it seems to me that there are occasions when perhaps a special school is appropriate. The wording of Amendment 124 makes it absolutely clear that, when it is in the interests of,

“the specific needs of the child or young person”,

this might be the case. That is why I think that that amendment has some merit. I also very much support the amendments put forward by the noble Baroness, Lady Howe, concerning the Equality Act. I think that it is very important that we make it quite clear that this Bill in no sense overrides the responsibilities of local authorities under the Equality Act.

Lord Nash: I thank noble Lords for their amendments on inclusive provision. This is the second debate that we have had on the principle of inclusion. Today’s debate has focused on how decisions are made about where individual children and young people with EHC plans are taught. As I said in responding to our earlier debate, our aim with this Bill is to build on what has gone before and to create a new framework that improves

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both support for children and young people so that they achieve better outcomes and choice for parents and young people.

I will take Amendments 123A and 124, from the noble Lord, Lord Low, and the noble Baronesses, Lady Hughes and Lady Jones, together, as they both relate to the factors that local authorities should take into account when naming an education setting in a child or young person’s EHC plan, where no request has been made for a particular institution or the parent or young person’s request for one has not been met. The statutory provisions in the Bill are designed to ensure that a mainstream place is considered thoroughly and properly, recognising that, with the right support, children and young people with special educational needs are successfully supported in mainstream settings. They also recognise that there will be occasions where a child’s inclusion in a mainstream setting would significantly impact on the education of others, whose interests should also be safeguarded. This could occur, for example, when the extremely challenging and disruptive behaviour of a child or young person could not be managed. The provision for local authorities to consider the efficient education of others is important in this respect.

I understand concerns about this condition being used indiscriminately. Clause 33(3) and (4) guard against this. A local authority can only rely on it if there are no reasonable steps that could be taken to prevent the placement of the child or young person being incompatible with the efficient education of others. In section 7.11 of the draft SEN code of practice, we set out a number of examples of reasonable steps that can be taken to support inclusion. I believe that provision on meeting the specific needs of the child should not be the preserve of a single clause. It is at the heart of Part 3 and is reflected in Clause 19 on general principles, Clause 36 on assessments and EHC plans, Clause 42 on duties to secure provision in EHC plans and Clause 62 on the duty on schools to use their best endeavours to meet children’s needs.

Regarding the concern of the noble Lord, Lord Low, that the Bill gives FE colleges a get-out clause by allowing them to refuse entry to disabled students that they previously would have accepted in line with their duties under the Equality Act, I can assure noble Lords that the Equality Act 2010 will continue to apply in full to colleges, and that they must continue to make reasonable adjustments to support the participation of disabled young people. Nothing in this Bill overrides these very important duties imposed by the Equality Act.

We believe that the principle behind Clause 33 is the right one. Young people with EHC plans should have the right to be educated in a mainstream setting if that is what they want. This Bill, for the first time, gives young people the right to say where they want to study, by requesting that a particular school or college is named in their EHC plan.

I understand the motivation for Amendments 124A and 126A from the noble Baroness, Lady Howe. During our helpful debate on disabled children and young people last Wednesday, I made it clear that we had

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drawn attention to the Equality Act duties in the SEN code of practice, in Chapters 1 and 6, and referred to other relevant guidance on those duties. We recognise the importance of making appropriate links between SEN and the Equality Act duties in the code of practice, and in last Wednesday’s debate I undertook to look again at the scope for improving the draft code of practice on this. I hope that that reassures the noble Baroness, Lady Howe.

7.45 pm

I turn to Amendment 125 in the name of the noble Baroness, Lady Howe, and my noble friend Lady Sharp. The provision in Clause 34(3) is designed to allow children and young people with special educational needs who do not have an education, health and care plan to be educated in an independent school, non-maintained special school or independent special post-16 institution where someone other than the local authority or the Secretary of State—most likely the child’s parents or the young person themselves—makes the arrangements and meets the costs. I am concerned that Amendment 125 would remove that possibility and deny those without EHC plans the chance to be taught in such settings where it was their wish and public funds were not involved. I assure the noble Baroness that there is no dark plan here. We are merely trying to expand provision and choice. Choice for parents and young people is essential, and I do not wish to restrict that.

I thank the noble Lord, Lord Low, for tabling Amendment 126 and enabling us to debate the provision in Clause 34(9). This provision would enable a child or young person with SEN but without an EHC plan to be educated in a special academy, special free school or special post-16 academy whose academy arrangements permitted this. It is intended to allow some flexibility in the application of the general principle of inclusion for children and young people with special educational needs who do not have an EHC plan.

The admission of children or young people without education, health and care plans to special academies or special post-16 academies would be limited to those where the Secretary of State for Education had agreed to permit this in their funding agreement. The Government’s intention is to facilitate innovative new approaches and new provision. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy, considering its educational merits and viability.

It is important for noble Lords to note that a child or young person without an EHC plan would be placed at such an institution only if their parents or the young person themselves requested it. Funding agreements would stipulate that the special academy or special post-16 academy could admit only children or young people with the type of SEN for which they were designated and that their admission should be supported by relevant professional opinion, such as that of an educational psychologist. The academy would also have to adopt fair practices and arrangements in accordance with those in the school admissions code for the admission of children without an EHC plan. Therefore, this is not a blanket policy. It is

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designed to improve provision for those without plans while putting safeguards in place to address the concerns expressed by the noble Lord, Lord Low, and others.

Concerning the point raised by the noble Lord, Lord Low, that the proposal to allow special academies and free schools to admit children without EHC plans will encourage schools to turn away children with SEN, no pupil should leave the roll of their school unless they are either permanently excluded or their parent wishes them to move to a different school. For that reason, no academy or indeed any school will be able to use the new provisions in this way. The regulations and statutory guidance on exclusions apply to academies and maintained schools. Therefore, if a school or academy wishes to exclude a child, it must follow proper statutory processes, and we will take a very firm approach with any school abusing those processes. Also, knowing, as I do, the sort of people who are responsible for running academies, I do not believe that this approach is one with which they would wish to be associated. Certainly in my own school, we did not believe in exclusion other than in absolute extremis which, thankfully, in more than five years, we had to resort to in only a couple of cases.

We have had a lively and interesting debate. The measures in the Bill aim to improve outcomes for all children and young people with special educational needs wherever they are educated. The measures in the Bill reflect the principle that mainstream education is right for most children and young people, and they seek to improve choice and safeguard appropriately the interests of other children. As I said before, I would be happy to have further discussions with noble Lords on these issues if that would be helpful. In the mean time, I hope that, in view of the assurances that I have given, the noble Lord will feel able to withdraw his amendment.

Lord Low of Dalston: My Lords, in welcoming the noble Baroness, Lady Sharp, to the Committee, now that she has been able to get away from her previous commitments, I offer her an apology. I had undertaken to make it clear when I moved Amendment 101, which she put her name to, that she wished her support for it to be placed on the record. I am afraid that I neglected to do that, so perhaps I may be permitted to rectify that omission now.

I thank all those who have spoken. This debate has enriched in detail the one we had about inclusion last week. It is clear from the interchange between the noble Baroness, Lady Sharp, and my noble friend Lady Howe that we have got our amendments in a bit

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of a tangle at one or two points, so we may have some work to do to sort them out. I am sure, however, that in the course of the further discussions which the Minister promised we should be able to do that. I thank the noble Baroness, Lady Sharp, for her support for my amendments. I agree with her that placement in a special school as provided for by Amendment 124, if it is in the interests of the child, makes sense—provided that that is the conclusion of a proper process of assessment. I hope that she would accept that.

We had two particularly valuable speeches from the noble Baroness, Lady Jones, and my noble friend Lady Howe. I wish that I had made them myself in moving the amendment. I must find out where they get their briefing from. However, those contributions have enriched the debate that we had last week in detail and will clearly feed into the further discussions that we are to have.

Finally, I thank the Minister for his careful exegesis of the law as it is enshrined in the Bill. This will provide a helpful background to the further discussions he has promised us, and which I am sure it will be important for us to have before Report. I conclude by hoping that this debate, like last week’s, will feed into those discussions but, with that, I beg leave to withdraw my amendment.

Amendment 123A withdrawn.

Amendments 124 and 124A not moved.

Clause 33 agreed.

Clause 34: Children and young people with special educational needs but no EHC plan

Amendments 125 to 126A not moved.

Clause 34 agreed.

Clause 35 agreed.

Amendments 127 and 128 not moved.

Baroness Northover: My Lords, this may be a convenient moment for the Committee to adjourn.

The Deputy Chairman of Committees: My Lords, the Committee stands adjourned.

Committee adjourned at 7.54 pm.