Special Educational Needs and Disability Bill [Lords]

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Mr. Hayes: I have a small and detailed point, not made by my hon. Friend, which I hope can be dealt with easily. Proposed new section 28J(3) stipulates that the proceedings of the tribunal are to be held in private. We all welcome that, as it would be inappropriate to do anything else. However, it would be helpful to have an assurance from the Minister that it will be considered appropriate, when the tribunal publishes its conclusions, to refer to some aspects of the proceedings, as long as all parties are happy with that. Some issues that arise during the course of the tribunal's proceedings will have a direct bearing on its conclusions, and it may be appropriate to air them.

If all parties are happy with such references, it is appropriate for such aspects of the proceedings to be made public. It may be implicit that that will happen, in which case there is no problem. However, if that is not implicit, will the Minister say something about the matter?

Ms Hodge: I hope that I can respond to the good, detailed and technical questions that hon. Members have asked. The first point raised by the hon. Member for Daventry concerned whether separate hearings could take place. I hope that he agrees that the structure that we are attempting to set up is designed to bring everything together into one hearing. That is why we have chosen the format of the SEN tribunal.

Following the passage of the legislation, we will make regulations that set out the precise circumstances in which a hearing can be a joint hearing on issues of discrimination and SEN. We will hold consultations on the issue, so there should be some clarity on it. Of course, nothing in the legislation would prevent two hearings from being held, if that were appropriate.

Mr. Boswell: I am grateful to the Minister. In cases where the interests of justice demand it, or in which, although they are closely related and may converge in the treatment of the individual child, the issues are separate, it is important to provide that separate hearings can occur—even if the normal, sensible practice is for them to be conducted together.

Ms Hodge: I hope that I have given the assurances that the hon. Gentleman sought.

I am delighted that the hon. Gentleman approves of the provisions in proposed new section 28J(2)(d), which will enable hearings to be conducted in the absence of any member other than the chairman. That has happened occasionally in SEN hearings, but always with the consent of all the parties involved. Obviously, it would occur only in exceptional circumstances, for example where a member had been unavoidably delayed.

Mr. Boswell: In that context, will the Minister assure the Committee that the consent of all parties will be required for that to happen? It is a matter of the vires not overriding the individual's rights.

Ms Hodge: Yes, I can assure the Committee of that.

The hon. Gentleman's third point related to costs. Under the current system for the SEN tribunal, the regulations state that costs will be awarded only in exceptional circumstances. Indeed, they have been awarded in a handful of cases during the five years since the tribunal's creation. The regulations that we intend to make for the new tribunal will be replicated in disability cases. We do not want parents to be deterred by the prospect of costs.

The hon. Gentleman asked whether members would receive allowances, and we already pay fees to members, as well as travel and subsistence expenses. We will do so for new members.

Mr. Boswell: The Minister may not want to answer this question substantively, and I do not want to cause a flurry of briefing. On the matter of hearings being conducted in the absence of any member other than the chairman, will she, in due course, consider situations in which it might be sensible for the lay members of a tribunal to examine potential provision in a particular place even when the chairman is unavailable?

12 noon

Ms Hodge: We shall obviously have to consider the implications of that, and I shall write to the hon. Gentleman to give him a proper answer.

The hon. Member for South Holland and The Deepings asked about the tribunal's ability to comment in its summing up on any issues that arise in a particular case. I thought that I had given the Committee some reassurance on that during our previous debate. The tribunal may comment on any issue that it feels is pertinent and that may have arisen as a side issue to the one that impacts directly on the child. We do not want to extend that provision beyond the power to comment. Our view is that the anticipatory powers provided for elsewhere will be sufficient to allow the wider implications of any case to be taken into account.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20


Question proposed, That the clause stand part of the Bill.

Mr. Boswell: We are moving into the territory of useful assurances on how the provisions will operate, but I want the Committee to pause briefly to consider three points on admissions. First, because the Minister, understandably, does not want to subvert the powers of appeal—either on admissions or exclusions, which, for this purpose, we can regard as raising similar issues—she has excluded them and left them to the competent authorities. I understand her reasoning, although that creates a strange situation, particularly in relation to exclusions, for which a temporary exclusion would be within the power of the tribunal and the more indelible permanent exclusion would be within the power of the appeals process. Will the Minister say something about that?

My second point is a juridical one. The arrangements for admissions and exclusions appeals will operate in a different context. They will operate not simply to make administrative decisions about admissions and exclusions, but to determine the operation of the Bill in relation to disability discrimination, which is a wide context. They are not, therefore, ancillary to the activities of the LEA and designed to provide an independent focus and natural justice, but will operate, in a sense, as a court of law. I doubt whether the persons involved in appeals are necessarily legally qualified. Nor am I sure whether they should be, because their normal traffic will not be in that area. I imagine that the Minister will say that the circumstances that I have outlined will be exceptional, but, sadly, they are neither unique nor inconceivable. People should, therefore, have access to legal advice.

Let me quote an anecdote from my experience on a tribunal. We once needed to subpoena someone, but the tribunal had never done so before, and we had to telephone the Lord Chancellor's Department to find out what to do. That raises the issue of training. The rules of evidence are extremely important in these matters. In other words, the appeals will take on a different character from that which they had previously, and they may be challenged in the High Court or referred eventually to the Secretary of State.

That raises the question of whether a decision will be reported and, if it has a wider implication, whether published and noted by other LEAs. A matter may not be just a one-off disappointment for an individual child, who feels that he or she has been unfairly excluded from a particular school—or not admitted, or excluded after admission. A case may have a bearing on the behaviour of the LEA. Although I do not propose to wrench specific powers from the LEA or from the new framework that has been set up to deal with local admission and exclusion policies, the Committee must ensure that those powers are being handled within the framework of natural justice and that the bodies concerned and their procedures are up to the job of handling these new, and rather onerous, duties.

Ms Hodge: Again, I stress that we have gone for the existing appeals and exclusion procedures because we wish to retain a procedure that works well and is informed, quick and effective. Where we have considered the existing appeal mechanisms to be suitable and robust, we have put new duties in place within them. The simple reason why temporary exclusions have had to go elsewhere is that there is no existing mechanism for them. Most parents who submit an appeal against admission are likely to submit it on more grounds than just disability. That is why it seemed sensible to deal with the relevant matters together.

We shall provide appropriate training for members of the appeals panels to ensure that they are aware of their new duties. We intend to revisit the training pack currently provided to lay members of appeals panels, with a view to providing guidance on the new disability duties. I shall write to the hon. Gentleman as soon as I can about whether members of appeals panels have recourse to the advice of a qualified lawyer.

We had not thought about any circumstances in which wider dissemination of the information arising from the proceedings of an appeals panel would be necessary or would add value in terms of preventing discrimination in other situations. We certainly do not feel constrained, but if schools had to receive that advice, it would add to their bureaucratic burden, unless there was clear value in ensuring that more bits of paper reached head teachers' in-trays. I know how anxious Opposition Members are for us to minimise bureaucracy. If the hon. Gentleman wishes to pursue the matter, perhaps he will come back to me.

Mr. Boswell: The Minister gives me an unavoidable challenge by taunting me about the need not to create additional paperwork. She is right about that, but I am not as sanguine as she is about the wider implications. If a child is disruptive, the nature of the disruption and the damage caused to other pupils might be entirely germane to what happens. If, for example, the behaviour of a child in year 11, whose parents were worried about the conduct of GCSEs, became intolerable and prejudiced the performance of other children, the school might decide to exclude him or her. A sibling in year nine might display similar behaviour—there are often family rivalries; I have a local case in mind—and it would be entirely relevant to know something about it.

Against that—and I make the point only because the Minister needs to debate it in drawing up the regulations—we do not, of course, want to wash in public the dirty linen of the behaviour of individuals. In matters of exclusion, particularly in the context of discrimination, it must be shown to the satisfaction of the general public and of the individual minority communities that there is a fair and principled basis across the piece. That would be relevant if, in a local LEA with maintained schools, one school made many exclusions but had successful appeals, while another with a broadly similar population did not.

I am not asking for a weekly law report of every decision. Nor do I need a final answer on the training pack today, but the Minister might consider whether chairmen of appeals panels who think that something has a wider application—a phrase used already in one of today's amendments—might be encouraged to report it and share it with others.

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