Special Educational Needs and Disability Bill [Lords]

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The Parliamentary Under-Secretary of State for Education and Employment (Ms Margaret Hodge): Clause 17 extends the jurisdiction of the special educational needs tribunal to cases of disability discrimination in schools and renames it the special educational needs and disability tribunal. Its reconstituted jurisdiction will extend only to England and Wales, as does that of the current special educational needs tribunal.

The hon. Members for Daventry (Mr. Boswell) and for South Holland and The Deepings (Mr. Hayes) raised the issues of cost and traffic. It is very early days and therefore difficult to judge. There is not even sufficient case law under part III of the Disability Discrimination Act for us to predict with any confidence the volume of cases that will be brought under the powers in the new part IV. However, I would draw the attention of both hon. Members to the fact that we established a conciliation service under the Disability Rights Commission specifically to minimise the number of cases that would need to come before the tribunal.

The hon. Member for Daventry was with me last night at the reception for disability organisations when I referred to that service as a key element of the role of the new commission. I am watching its development with great interest. It should minimise traffic.

Mr. Boswell: I hope that the Minister is right. On Second Reading, I said that experience of the operation of the 1995 Act has shown that employment tribunals, which hear cases relating to part II duties and to which access is relatively easy, have borne very much more traffic than the county courts, which hear cases in relation to part III duties. I accept that that occurred before the establishment of the Disability Rights Commission. My concern is that because this is tribunal territory, which, for an applicant, is relatively easy to access and relatively cost-free, there might be more traffic than either of us anticipates.

Ms Hodge: That might be true, but I hope that the anticipatory duties on schools and LEAs will ensure that action is taken before a tribunal is needed. I accept the difference between the county court and the tribunal, but as there have been so few cases so far, none of us has much experience of part III. Nevertheless, we make estimates of costs, and these have been supplied to the Committee in documents relating to the Bill. The tribunal has estimated that the cost will be approximately £400,000, rising to £1.25 million in the longer term, and that 20 more staff will be required. However, I would put a number of provisos on those figures as they are guesstimates, and we shall have to revisit them in the light of proper knowledge.

The hon. Member for Daventry also talked about whether the members of the tribunal would have the appropriate knowledge and experience to deal with discrimination matters in relation to disability—

Mr. Boswell: Or training.

Ms Hodge: Yes, or training. I can give the hon. Gentleman some reassurance on that.

First, the regulations that govern appointments to the tribunal will require its members to have knowledge of disability issues. That is one way of ensuring that appropriate people participate in the tribunal. Secondly, the composition of the tribunal will be not dissimilar to the current composition of the SEN tribunal, in that the chair will have a legal qualification and a minimum of seven years experience, and be appointed by the Lord Chancellor. The tribunal is a non-departmental public body, and has for some time been planning for expansion and changes in its duties and functions. It has also been training people appropriately.

Mr. Win Griffiths (Bridgend): I previously referred to the devolution conundrum, whereby some devolved issues, which are the responsibility of the Welsh Assembly, are relevant but there are other, non-devolved matters in the same connection. The tribunal is one such matter, because it will consider issues relating to schools, but the Lord Chancellor's Department is not a devolved Department and the tribunal is not a devolved tribunal. Have there been any discussions with the National Assembly about the possibility, at some future date, of it having a more direct role and about the establishment of a separate tribunal in Wales? In addition, what administrative arrangements will be made in the immediate future, once the tribunal has been established?

Ms Hodge: English lay members of the tribunal will be appointed by the Secretary of State for Education and Employment, but the National Assembly for Wales will appoint Welsh members. Clearly, we must be extremely sensitive to the Welsh dimension as the development of the tribunal proceeds.

Mr. Boswell: May I first respond to the point made by the hon. Member for Bridgend (Mr. Griffiths). It is not simply a matter of the tribunal's jurisdiction. Under clause 18, the tribunal's power to make remedial orders will be binding on LEAs in Wales, despite the fact that they are bespoken to the National Assembly. Therefore, an extra-territorial jurisdiction will impact on them.

I believe that, in its first seven years of operation, the SEN tribunal has established considerable credibility and done a good job for all parties involved. It is important that we build on that credibility and ensure a constructive outcome.

Ms Hodge: I, too, believe that the SEN tribunal has been a success story, which we want to develop. We must be sensitive to the Welsh dimension, and review the impact that the legislation has on Wales. It is tricky, because the measure involves both a reserved power and a devolved responsibility, so we must ensure that the two interact effectively.

The tribunal has a comprehensive and on-going training programme for its members, which includes training on the legal developments, on the new powers created by the Bill and on the implications of the Human Rights Act 1998, which the tribunal will take seriously. The tribunal will enforce new rights under disability discrimination legislation, but it also has a history of enforcing rights with respect to special educational needs. We selected the mechanism for enforcing those rights for many of the reasons that Opposition Members have described. It is informal, it works more quickly and sensibly, and it is more responsive to a child's needs. It puts the educational remedy at the heart of the work that is done, which is vital in ensuring that children develop their potential without suffering any unnecessary disadvantages from discrimination or from their special educational needs.

The Disability Rights Commission will be preparing guidance, which will support and inform the tribunal in its new role. We have examined all the perspectives from which the Human Rights Act 1998 might affect the Bill, and have ensured that the Bill complies.

I want to mention one or two issues raised by the hon. Member for Holland and The Deepings.

Mr. Hayes: South Holland; I do not want to offend people in North Holland.

Ms Hodge: I am sorry; I want to answer the hon. Member for South Holland and The Deepings. The desire to keep the proceedings informal reflects our approach to respecting the rights of the child in the tribunal. In seeking effective determinations and in pursuing the child's rights in education, it is better that a parent should bring a case on behalf of the child. Parents have a better chance of identifying the child's rights at an appropriate age and of mounting a challenge.

The tribunal, rather than any other jurisdiction, is appropriate because it can work more swiftly and effectively, and can focus on an educational outcome for the child, rather than becoming entangled with lawyers and giving an overly litigious and formal impression. The child's rights would be less well served by that than they would by the more informal tribunal.

Mr. Hayes: I am sympathetic to the Minister's case. She may want to deal with two issues that I raised, first about disagreements between parents and children—which is a possibility particularly relevant to slightly older children in secondary education--and secondly, about circumstances in which parents are no longer in loco parentis, for whatever reason. My noble Friend Baroness Blatch raised the latter point in the other place. A conflict of interest might arise with respect to children in care or children whose parents were not in a position to represent their interests, if the local authority were called on to represent a child as well as putting its own case. That is a sticking point in the Minister's otherwise persuasive case.

Ms Hodge: As to the first point, we are ensuring that the rights of the child are protected in other ways. For example, under the new tribunal regulations, which will come into force in September, local education authorities will be required to state the views of the child or to state why they have not ascertained them. That will be covered by regulation 13. We plan similar provisions in disability-related tribunal regulations. I hope that that provides some comfort for the hon. Gentleman.

When a child's parents are no longer in loco parentis, social services departments will represent the child's interests and act in loco parentis in relevant circumstances. Local authorities have a duty under the Children Act 1989 to promote the welfare of the child. That may place the relevant departments in conflict with the local education authority, but each would observe the separate duties imposed on it by law.

Mr. Boswell: A Chinese wall.

Ms Hodge: It is a Chinese wall.

I have explained how we think the system will work in practice. The issues raised by Opposition Members are important, and we considered them when we framed the duties of the tribunal.

Question put and agreed to.

Clause 17 ordered to stand part of the Bill.

Clause 18

Jurisdiction and powers of the tribunal

11 am

 
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