Special Educational Needs and Disability Bill [Lords]

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The Parliamentary Under-Secretary of State for Education and Employment (Jacqui Smith) indicated assent.

Mr. Boswell: The Minister is nodding. I recently paid a stimulating and enjoyable visit to the Sibyl Elgar school, which is run by the National Autistic Society. I also visited the specialist residential college for mature students run by the Royal National Institute for the Blind in Loughborough, which is between the further education college and the university. The college makes outstanding provision to reskill mature people, enabling them to gain access to mainstream employment using new technology. That is exactly the sort of thing that we want to encourage. That school is not maintained, but because the teachers are specialists in the field, they know that they are outstanding at their jobs. Wherever children will benefit from such provision, we want to make absolutely sure that they have access to it.

That is all we seek from the Minister. There is no hidden agenda to put in place a difficult set of legal hurdles to be overcome before a child can be placed in the non-maintained sector. Most schools in the non-maintained sector are not profit-making organisations. To be a full member of NASS, a school cannot be a profit-making organisation, but must be charitable or run not for profit. Otherwise, an organisation can be only an associate member of NASS. We must ensure that such provision fits in, and that the Bill does not create a shift in the balance, even by accident.

I appreciate that these issues are complicated, which is why we seek assurances from the Minister on three matters. First, she must take us through the legal hoops and make sure that the Bill does not fall down on delivering choice. Secondly, we do not want the legislation to be framed in such a way that local authorities, especially those who are under financial pressure from time to time, can wag bits of the statute—perhaps selectively quoted—at parents who are not well advised or who do not have an advocate, and say, ``We would love to help, but the law prevents us from doing so.'' Thirdly, we want an assurance that the Minister, the Department and the regional partnerships do not have an agenda that may result in a shift in the balance away from specialist non-maintained provision.

I do not want to overstate the case to the Committee, but concerns remain. We look to the Minister—as the non-maintained sector also looks to the Minister—to make absolutely sure that we have got the legislation right and that the Bill will have no unintended consequences that would substantiate our fears.

Jacqui Smith: It is a pleasure to be back here this morning, Mr. O'Brien. Perhaps I can start by allaying the fears of the hon. Member for Daventry (Mr. Boswell) about the legal position. I understand that the amendment is prompted by concerns that the Bill will make it more difficult for local education authorities to fund placements in the non-maintained sector, or prevent them from doing so, but I assure the hon. Gentleman that that is neither the intention nor the legal effect of clause 1.

Clause 1 strengthens the right to a mainstream place for children with statements if that is what their parents want. I think that the hon. Gentleman already realises that it will not make it harder for parents to have a special school, maintained or non-maintained, named in their child's statement. The clause preserves the parents' ability to object to mainstream provision. If they do, the duty to educate the child in the mainstream is immediately lifted.

The amendment seeks to incorporate into clause 1 the wording from section 348 of the Education Act 1996, which allows LEAs to fund non-maintained placements. To that extent, it plays a slightly different role to new section 316, which is about the education of students. The amendment is unnecessary, as new section 316A(3) already ensures that new section 316 will not effect the operation of section 348 of the 1996 Act.

9.30 am

The hon. Gentleman highlighted the considerable confusion that has been expressed about the possible effect of new section 316A(1). However, he has already mentioned the intention of that section, which I reiterate. It simply ensures that parents of a child with SEN continue to have the right to educate that child, at their own expense, at an independent or non-maintained school. Without that provision, given the earlier provisions in clause 1, parents of children with SEN but without statements would not be able to choose to send their child with SEN to a non-maintained school at their own expense.

We seek to protect that ability in new section 316A(1). If it were prevented, it would make the Bill incompatible with the Human Rights Act 1998. New section 316A(1) ensures that when a parent exercises that right, it is not at the expense of the public purse. However, it does not mean that LEAs are prevented from funding placements. That is the relationship between subsections 316A(1) and 316A(3).

Nothing in new section 316A is capable of affecting an LEA's duties in respect of funding non-maintained placements as set out in section 348 of the 1996 Act. Parents will continue to have the right to make representations to have a non-maintained school named in their child's statement. If the LEA agrees, and a non-maintained school is named in a statement, it must fund the placement. If a non-maintained school is not named, parents have a right of appeal to the SEN tribunal. That ensures that, when appropriate, non-maintained schools are named in children's statements. The responsibility for funding remains the same as it is now.

Mr. Boswell: The Minister is helpfully setting out the assurances that we seek. She draws an interesting distinction between funding and placing. She spotted that the amendment borrows the provisions of section 348 of the 1996 Act. As I read it, section 348 enables the LEA to fund a place if the school is specified or if it is satisfied that the child's interests require necessary special education provision to be made at a particular non-maintained school. The hon. Lady says that the funding for a statemented child at a specific named school would be protected. I take it that that also applies to the LEA's ability to fund the place if it deems it appropriate. I want to be clear that a statemented child can be sent to X school and that, if an LEA judges that it would be best for the child, it is not ruled out from doing that. It would be useful if the Minister were to clarify that.

Jacqui Smith: If the hon. Gentleman is referring to a child without a statement, the clarification that he seeks is covered by new section 316A(2). It lays out the conditions in which a local education authority could place a child without a statement in a non-maintained special school. They are the equivalent conditions that are laid out in regulation for the placement of a child without a statement in a maintained special school. In those circumstances, there is nothing in the Bill to prevent the local education authority from funding a placement in a non-maintained special school.

I reassure the hon. Gentleman about the relationship between new sections 316A(3) and 316A(1). The important point is that both provisions are exceptions to new section 316. They both relate to that new section; they do not relate to each other. New section 316A(1) does not have an effect on section 348. New section 316 might have the potential to affect section 348, which is why we have made sure that it does not under new section 316A(3). I accept the hon. Gentleman's point about how the issue could be understood, but I assure members of the Committee that that will be explained clearly in the revised SEN code of practice and the statutory guidance that will back up the new inclusion framework. I hope that he has been reassured about the legal position.

The hon. Gentleman said that he wanted reassurance about the Government's position in relation to special school places. I can only reiterate that we recognise and value the important role played by the non-maintained sector. It is not true that anything in the Bill would represent a danger to the special school sector. Clause 1 will not make it harder for parents whose children have statements to gain a special school place. That is why we have always inside and outside the Committee signalled a continuing role for special schools.

Clause 1 strengthens the right to a mainstream place for children with statements, but it fully preserves a parent's right to object to mainstream provision. It does not make it harder for parents to gain a place for their statemented child at a special school. We have emphasised that the wishes of parents should be listened to. I have already explained the role that the tribunal will continue to have when a parent had expressed that preference and was unhappy with the response of the local education authority.

The hon. Gentleman said that he was worried about our attitude to partnerships, particularly regional partnerships. We have ensured that the non-maintained sector is at the heart of the SEN regional partnerships that we are sponsoring. On Tuesday, I said that the chair of NASS is on the national steering group of the regional partnerships. The hon. Gentleman referred to the case study that was carried out by the east of England partnership that the Royal school highlighted. It studied the appropriate use of the non-maintained sector, as has been the intention with partnerships throughout the whole of their operation in partnership with the voluntary and the non-maintained sector.

In developing the partnerships, we asked all the partners to consider what changes may be necessary to improve the special educational needs provision within those areas. Partnerships and developments in special educational needs may well mean change for local education authorities, maintained schools and non-maintained schools. I reassure the hon. Gentleman that we take very seriously the role of the non-maintained sector in educational provision for children with special educational needs, and in the development of the regional partnerships.

Our commitment to the non-maintained sector is underlined by the significant funding that we have provided for non-maintained special schools—£4.8 million from April, which builds on the £3.4 million that we provided this year. I do not wish to strike a partisan note, but no other Government have provided that level of funding to the non-maintained sector. I was very impressed by activities at New College, an RNIB school in Worcester, when I visited it. That is why, as well as providing the support that I outlined, we have included that school in our beacon school project, to ensure that its good practice is shared.

I hope that with those reassurances, the hon. Member for Daventry will feel able to withdraw his amendment.

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