Special Educational Needs and Disability Bill [Lords]

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Ms Hodge: I can perhaps provide some reassurance to the hon. Gentleman. The DRC will produce guidance on how the appeals panels should operate. I am sure that he has seen our guidance so far on the DDA, which contains examples of good practice and possible discrimination issues to which members of the panel should have regard. That guidance is a helpful way to disseminate information on previous cases. An anonymous digest of decisions, not case reports, is published annually. That is a better way in which to disseminate knowledge from previous appeals.

Overall, we are giving new powers to the DRC and others to mount formal investigations if they feel it appropriate. If an institution's appeals are persistently overturned or if it persistently has children admitted through the appeals mechanism, there might be something wrong with the procedures undertaken by that school. Such a case could be subject to the appeals mechanism. Schools and LEAs have an anticipatory duty not to discriminate, and that duty is crucial. I hope that that will deal with many of the issues raised by the hon. Gentleman.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.

Clause 21

Exclusions

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

Mr. Boswell: I shall be brief, as many of our concerns were aired in the previous debate. I want simply to ask the Minister whether there are any financial implications for individual schools in relation to the exclusion provisions on disability discrimination. As she rightly says, the purpose of exclusions and admissions appeals is to provide a quick and relatively straightforward means of resolving issues locally.

As I said on the previous clause, the panels will have to consider greater complexities in disability discrimination issues, and I hope that they have sufficient legal firepower to deal with them. It is almost certain, a priori, that the panels will take longer, as the issues are complicated and will have to be considered carefully. Advice may have to be taken from the Disability Rights Commission, which may want to be joined as a party with individual applicants, as we shall discuss under a later amendment. There will certainly be more difficulty than in simple cases of bad behaviour leading to exclusions and an appeal.

There are several sanctions on schools, of a financial or another nature, such as the pupil retention grant and whether pupils are counted as members of the school for the purposes of performance tables. The latter is not a financial sanction, but is sometimes felt to be. Such matters are frequently raised in a wider context by head teachers who do not think that the present arrangements fit fairly.

I have two more points. First, will the rules on exclusions appeals for disability discrimination have any impact on the grants? Secondly, will matters be reopened ex post facto? If schools know where they are financially, they can cope with it, even if they do not like it. If they suddenly find unanticipated, uncovenanted raids being made on their finances through the withdrawal of a grant—something that may take two or three years to resolve—they would have something to complain about.

12.15 pm

Ms Hodge: I accept that these are complex issues, but I remind the hon. Gentleman that they must still be dealt with within 15 school days after they are lodged, and that the full exclusion appeal procedure is usually completed within 45 days. It is important to reassure parents and children who may want to take advantage of the appeal mechanisms that they should be dealt with within that time, even though they are complicated. Schools will also be expected always to act within the reasonableness criteria that underpin much disability discrimination legislation, and they will always have to justify their actions in excluding or not excluding children.

Those key aspects of the Bill underpin the rights of the child at school, but protect the school from having to do anything unreasonable or that cannot be justified. The hon. Gentleman is probably aware that the Under-Secretary, my hon. Friend the Member for Redditch, has devolved the pupil retention grant to schools, so there is no question of schools losing access to those resources.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22

Roles of the Secretary of State and the National Assembly

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

Mr. John Randall (Uxbridge): I confess to being slightly confused. Subsection (8) states that the ``Appropriate authority'' is, for England, the Secretary of State and, for Wales, the National Assembly. The explanatory notes, however, state on pages 19-20 that the clause

    ``gives the Secretary of State or, as appropriate, the NAW the power to direct an LEA or school''

and then that it

    ``gives the Secretary of State the power to direct LEAs and schools in England and Wales''.

What is the reason for that difference? I am sure that it must be obvious, but I would be grateful for clarification.

Ms Hodge: I shall have to read the clause and the explanatory note. It may save the Committee's time if I respond in writing. On first reading, I do not understand the hon. Gentleman's problem, but may be able to help if he can explain it again.

Mr. Randall: I am sorry for being obtuse; it was not deliberate. It seems to me that the Secretary of State deals with matters regarding England and the National Assembly for Wales deals with matters in regard to Wales. The explanatory notes, however, seem to give the Secretary of State the power to direct LEAs and schools in both England and Wales.

Ms Hodge: I may be able to help. There are two different powers: the planning duty is a matter for the Secretary of State for Education and Employment and for the National Assembly of Wales; a failure to comply with a tribunal decision is a matter for the Secretary of State only. I hope that that assists the hon. Gentleman.

Mr. Boswell: I think that that was exactly the point made by the hon. Member for Bridgend. One is a reserved matter, and one devolved, and that is why there is a difference in the explanatory notes. However, the Minister may still want to give the matter more leisurely consideration.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Clause 23

Enforcement procedure: Scotland

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

Mr. Boswell: I shall try to follow the masterful intervention on the previous clause of my hon. Friend the Member for Uxbridge (Mr. Randall). He reminded me of the person who expressed confusion on a difficult matter, consulted his friend and was advised to go to a conference. On returning from the conference, he was debriefed by his friend and declared himself to be still confused, but at a somewhat higher level.

With great trepidation, I dip a toe in the water not only of English, but of Scottish law. Although I am aware that there is a Parliamentary Private Secretary in the Committee who will, no doubt, support the cause of Scotland in a silent capacity, I am sorry that the hon. Member for Aberdeen, South (Miss Begg) is unable to be with us.

The Scots have not had a special needs tribunal, and it was implicit in the arrangements drawn up by the Conservative Government that they felt that they did not need one. Victims of disability discrimination of all ages must go to the courts to obtain redress in Scotland. That differs from the position in England and Wales, except in the case of post-16 education, where England and Wales are more like Scotland. I am not saying that the situation in Scotland is wrong. Essentially, and not just within the new structure but already, that is a matter for the Scots to decide. However, I am anxious to secure what could loosely be called equality of redress.

The Minister will say—rightly—that the Government have provided for everybody to have redress. Obligations under the Human Rights Act 1998 apply across the United Kingdom. An hon. Member representing a Northern Ireland constituency made the point during an intervention on me during a debate on the programme motion, when I was less well-briefed than I am now, about the application of the legislation to Northern Ireland. I could have disabused him, if I had read the explanatory notes with more care. The provisions are not designed to apply to Northern Ireland. No doubt Northern Ireland will have its own procedures for dealing with these matters.

Although I do not object to the use of different legal forms or forums for determining people's rights, it is important that people should in general enjoy the same kind of redress. The Minister has made much of the relative informality of the special educational needs tribunal, and, on the basis of experience, we welcome that. However, parents in Scotland have to go to court to claim their rights. It is not difficult to construct a hypothetical case in which a marriage had been dissolved and one sibling had gone to live with a parent in England while the other had gone to live with a parent in Scotland. It may be that, as identical twins, they might suffer from the same special educational need. There would be potential for discrimination.

I am, I admit, building circumstance on circumstance, but such a situation is statistically likely to arise. There would be different provision for the two siblings. Whatever happens, people would have to go down different routes to obtain redress. I do not mind that, but if it meant that fewer Scottish parents than English or Welsh parents were able to avail themselves of the right, or if there were particular differences within natural families such as those that I have mentioned, we would not have done ourselves a lot of good.

A recent Royal National Institute for the Blind survey cogently pointed that while as many as 25,000 cases were heard by employment tribunals under section (2) of the Disability Discrimination Act, only a handful of cases—between 40 and 50—brought under part III for England and Wales went to court. It is a big assumption to make, but differences in application or compliance between part II and part III duties suggest that whatever the legal form, the avenues of redress are not the same. Whatever else we can say, discrimination on special educational needs in England and Wales is not likely to be hugely different from that in Scotland. I put down a marker that the Bill might not operate in the same way in Scotland, and that it might not afford the same rights there that it does in England and Wales.

 
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