Special Educational Needs and Disability Bill [Lords]

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Mr. Boswell: I beg to move amendment No. 19, in page 17, line 28, after `concerned', insert

    `including any element of apology which is appropriate'.

The Chairman: With this it will be convenient to discuss amendment No. 20, in page 17, line 29, after `relates;', insert—

    `(aa)includes power to invite local education authorities and education providers to re-examine their procedures and provisions for dealing with matters of wider application raised by the resolution of the particular case;'.

We are still dealing with tribunals. I hope that hon. Members will not repeat what was said on clause 17.

Mr. Boswell: Thank you, Mr. O'Brien. We shall not do that.

Amendment No. 19 is about the importance of redress, which can be the cause of great emotion. In the other place, views on that matter were divided, as they may be in the House of Commons. Some hon. Members—they may not be members of the Committee, but they should show themselves as we need to debate the matter—believe that the tribunal should be able to order pecuniary redress. I do not seek to exclude the caveat that rules out pecuniary remuneration. I agree with the Minister that that should not be included in the Bill.

Although an argument can be made in favour of pecuniary redress, it is, on balance, not right. The strongest argument in favour would be in cases of what might loosely be called wilful or delinquent behaviour by a local authority or a school's governing body. People may feel strongly that an LEA or governors should be punished by way of a fine or punitive damages to stop that happening again.

Were you to allow it, Mr. O'Brien, we could have a long debate on the impact of damages in cases of medical negligence—on whether such damages advance the nation's welfare or have negative consequences. I shall not be tempted down that route. Redress is provided for in equal opportunities legislation, and for gender and racial discrimination, but the Bill does not provide for it. Is the Minister comfortable about that? The balance is not right, and the amendments allow me to probe what the tribunal can order.

Paragraph 91 of the explanatory notes include a helpful list of the tribunal's

    ``wide powers to order any remedy''.

The list of powers should include the possibility of securing an apology or a re-examination of the case. I have singled out those two points because distressed parents or relatives often want those things to happen after a tragedy has occurred.

This may be neither the time nor the place for personal confession, but many of us will have experienced something pretty nasty or distressing, such as a death in the family. The financial implications for the loss of a life are small under English law. There may be damages for the loss of a business partner, a parent or a potential earning stream that would finance a child's education, but damages for death itself are comparatively small, a fact that feeds into my argument that a financial contribution would be inappropriate.

Another factor is what I might loosely call the Railtrack argument. Railtrack is a private sector company, but if all that we do every time that it fails is fine it, we make it more difficult for the company to put matters right. In the case of SEN, because of the size of the maintained sector, most of the traffic would be in the public sector of education, and any fines would come out of other educational provision.

What do relatives want? I shall recite the sad case of a family in my constituency. The husband and bread winner volunteered to help in a local country park, and met with a fatal accident when driving a dump truck as a volunteer. Someone slipped and put a JCB bucket through him. In due course, the family came to see me about the case. As people do in broadly similar, though perhaps less tragic, incidents, the family wanted the public authority to apologise, and it did so, most generously. The family also wanted—I am almost repeating its words—such events to be prevented from happening again, as a contribution towards the loss of its loved one.

In the real world, we know that some accidents are not as easy to predict as wise-after-the-event tabloid newspapers may say. Accidents may arise through unsatisfactory but institutionally embedded practices. The local authority may not be doing its job properly or sending the right signals. We must provide some differentiation.

It is not pleasant for any parent to have to make a case; I almost said that that is not pleasant even when the case is won. Life must go on, but parents want to feel that something positive has been achieved. The right remedy is needed. In my experience, that is not always easy, and the climate of litigation and litigiousness on which we have already touched tends against it. An admission that a terrible mess has been made in a specific child's case, and an apology for it, can be an important solvent of grief. That is the point of the amendment.

Amendment No. 20 moves us from the particular to the general. Mirroring the remarks in the sad case to which I referred, parents will say that if working practices are unsatisfactory, the public authority—most schools are public authorities—must ensure that something is done about the problem so that the situation is better in future. It would be unwise to stray into other territory, but we could have a long debate by analogy with, for example, institutionalised racialism. I do not want to do that, but some concerns must be dealt with. Incidentally, in my county, which does not have a particularly high component of ethnic minorities except in one or two places, I had a constructive conversation with our chief constable about his policies. He gave satisfactory answers and had clearly dealt with the issues.

If something goes wrong, and a case goes to tribunal, it is not just the money that counts, particularly for the individual. Although we should not forget the prescription for educational remedy, because that is the central point, it is sometimes important simply to have an LEA or a board of governors say, ``We got it wrong, but we are sorry and we are doing something about it.''

Amendment No. 20 sets out what would be done about that. If an LEA had had a dusting down at a SEN tribunal, it would be foolish and inappropriate of it simply to say, without its making any real changes, ``Oh well, we lost that one. Some you win, some you lose. On to the next.'' We want LEAs to say, ``We got it wrong. Perhaps we can learn from that. Perhaps we could do the children in our care and ourselves some good if we adopted a more positive and proactive attitude and actually did something about the problem.'' The Minister and Conservative Members would want that, and the amendment is intended to achieve it. In other words, out of a dispute may come some provision for specific educational remedy and, if appropriate, a generous apology. That must not be a matter of simply offering a few words: the authority must consider the case, learn from it and resolve to do better next time.

Mr. Hayes: I do not want to detain the Committee, and will make only a couple of further points. First, the issue dealt with by amendment No. 19 should be set in the context of prevailing assumptions about the relationship between parents and children and LEAs. Among many parents and young people with special educational needs and, one might say, people with disabilities in general, there is a feeling that those in authority can sometimes be arrogant. Such feelings are often exacerbated by people's sense of vulnerability, and, perhaps, by their earlier life experiences. My repeated experience of such matters suggests that parents frequently feel that the authorities do not take sufficient account of their concerns. They do not show sufficient humility. The apology that the amendment stipulates is designed to allow local authorities in such circumstances to be a little more humble—to say that they got it wrong.

Mr. Boswell: If I might just correct a small mistake in terminology in my hon. Friend's powerful speech, it is a matter not of allowing but of requiring authorities to do something about it.

Mr. Hayes: Indeed. I was being excessively polite, as I am wont to be. My hon. Friend is right. The current position is variable, as I would be the first to acknowledge. However, as an apology has frequently not been offered voluntarily, it is vital to introduce an element of obligation. Frequently, local authorities have not shown the requisite humanity and have not made it clear that they sometimes get things wrong. That is why we wish to strengthen the Bill.

I do not want to open up a hornet's nest, but the amendment would raise the issue of compensation for discrimination, which my hon. Friend has hinted at. That matter was debated at considerable length in the other place, not least by Lord Ashley, who discussed the tribunal's power, when it finds in favour of the parents, to insist that people are properly compensated. As we are probing the Government, it would be useful if the Minister would refer to the issue of an apology, which was debated at some length. I put it no more strongly than that.

On amendment No. 20, I want to add one point to what my hon. Friend has said. We might find, as matters proceed—the Minister was right to say that these are early days—that particular problems arise in certain areas and particular local authorities, and we may find that cases are concentrated in one part of the country.

Mr. Boswell: May I assist my hon. Friend by saying that, in conducting its inspections, Ofsted might also find that there is some systematic flaw in provision?

11.15 am

Mr. Hayes: Precisely. My hon. Friend anticipates my conclusion. If there is a concentration of cases in one part of the country, that might be indicative of an endemic or, as my hon. Friend describes it, a systematic problem. That is why it would be inappropriate not to include in the Bill provision for local authorities to learn from mistakes by examining specific examples or a collection of examples. If there is a concentration of cases or a repeated theme, that may indicate that there is a flaw. Amendment No. 20 simply suggests, arguing from the specific to the general, that it would be wrong if the Bill did not cover that possibility, allow local authorities to consider how systems and procedures work, and offer them an opportunity to iron out and amend their practices.

Once we have had a chance to see how the legislation beds down, get a feel for the number of cases, where they are, and what cases typically arise, we could learn from that experience and incorporate it in good practice. The amendment is constructive and persuasive—I suppose that I would say that. It would help local authorities and give extra protection to people who go to a tribunal, win their case and say, ``Let's hope that this does not happen to anyone else. We have won our case, but we do not want anyone else in a month, a year or five years' time to face the same challenges and go through the same process.'' If the amendment is rejected, intransigent local authorities may not learn from mistakes, and we know from experience that that has happened. Such situations will be testing for the parents and children involved. They would take comfort from an apology and from knowing that their case was a landmark. People are not entirely selfish in such matters; they hope that others will benefit from the difficult circumstances that they have had to endure. On that basis, I urge the Committee to support the amendment.

 
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