Special Educational Needs and Disability Bill [Lords]

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Mr. Boswell: The Minister is being helpful, but for the avoidance of doubt, will she confirm that some of the transitional duties will bite on children with special needs who are not statemented, although the duties are more specific towards those who are?

Ms Hodge: I am happy to confirm that. We hope that section 140 assessments will build on previous work, which will help the transition process.

I will address some of the specific concerns that hon. Members have raised. Under section 13 of the Learning and Skills Act 2000, the Connexions service and the learning and skills councils will have a responsibility to have regard to the needs of learners with difficulties or disabilities. That provision was included in the Act by an amendment in another place, to ensure that all those connected with the learning and skills councils, and the institutions for which they are responsible, properly meet such people's needs. The combination of section 140 assessments and section 13 duties should persuade Opposition Members that we have tried to create proper transition protection.

Summer holidays have been mentioned. When a young person moves from school to college, the college will be responsible for preparing for admission. The Connexions service will probably be responsible for general support during the holiday period because it will have undertaken the assessment during the student's latter days at school.

Several hon. Members mentioned the provision of information on transition. The current SEN code of practice gives advice on the transfer of information, and that will be strengthened in the revised code. The Connexions service will seek the agreement of students and parents for the transfer of information. A statement of the SEN transitional plan will be sent to the Department of Social Services and post-16 providers. Information will be properly shared so that the best services can be provided to the pupil in transition.

The hon. Member for Daventry asked whether the views of the pupil or young student would be considered during the transition period. The current SEN code of practice advises that the views of pupils must be taken in account. The revised code and supplementary guidance will strengthen that advice, especially on transition. The principles that it must be young people centred and must consider their views lie at the heart of the Connexions service.

The hon. Member for South Holland and The Deepings asked what would happen if someone's condition changed during his or her period in a post-16 institution. I reassure him that the Connexions service has the power to assess any young person of up to 25 years of age whom it believes to have special educational needs.

Mr. Boswell: On the competence of the individual components of the Connexions service, we have heard a great deal about personal mentors, and I have exchanged parliamentary questions and written answers in relation to the qualifications required. If there are to be such assessments in the Connexions service, will the Minister assure us that those who carry them out will be fully competent on educational grounds? Even if they are not front-line advisers, will they have recourse to persons capable of ensuring that assessments are seen to be professionally respectable?

Ms Hodge: The hon. Gentleman raised that issue during consideration of the Learning and Skills Act 2000. As he knows, personal advisers will be drawn from a range of backgrounds, depending on the needs of young people in the partnership area. It will be important for personal adviser networks to include personnel who have special knowledge and expertise in dealing with learning difficulty and disability issues. The hon. Gentleman should be reassured to learn that that will include specialist careers advisers. We are piloting a training programme for personal advisers in the Connexions service, which will include training on the Connexion assessment framework, which sets out the process by which personal advisers can make assessments of students. They will therefore know what duties are owed to students, and institutions will be clear on their obligations.

I have covered most of the specific issues raised in a debate that concerned transition rather than the rights of individuals to seek redress during the transition period, which is why I have focused on that. Following my reassurances, I hope that the hon. Gentleman can withdraw new clause 4.

Mr. Boswell: As I said on the previous new clause, we have had a good discussion on an important issue of substance and legality. Opposition Members have had some reservations about the operation of the Learning and Skills Council, though, we should record, in fairness, and following the comments of my hon. Friend the Member for Guildford, that the LSC has been in existence for all of four days: if it has not yet bedded down, we can understand why. The same applies to the Connexions service, which is being rolled out across the country and has not yet extended nationally. We may be sceptical about how it will fit together, but the Minister has demonstrated at least that there is a principle of provision. The issue is being addressed in principle, but there is a great deal more to be done in practice. However, in a spirit of goodwill, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 5

Unreasonable action

    `.—After section 496(2) of the Education Act 1996 there shall be inserted—

    ``(3) In connection with the operation of this section as it applies to Part IV of this Act (Special Educational Needs), any conduct by any body which fails to give priority to the educational interests of a particular child with special needs (provided only that this is not inconsistent with the duty on that body to provide efficient education for other children) may be held to be unreasonable action for the purposes of this Act.''.'.—[Mr. Boswell.]

Brought up, and read the First time.

Mr. Boswell: I beg to move, That the clause be read a Second time.

It will soon be apparent to the Committee, if it is not already, that I am no lawyer. It is foolish and potentially expensive to pretend to be a lawyer when one is not. However, my daughter is a judicial review buff—I shall return to that in a moment—and I have been fascinated, ever since I served in the Department in which the Minister serves, by issues of reasonability and behaviour.

One reason for that is that Mr. Ricks, the chief legal adviser to what was then the Department for Education, was the author of an estimable little book, ``The Judge over your Shoulder'', a guide for civil servants. We discussed earlier whether we looked in the glass in the morning, and what we thought about when we did. Ever since being at that Department, when I look—metaphorically—in the glass every morning, I ask myself, ``Am I being reasonable?'' That is a legal term, but it is a jolly good discipline for Ministers and persons in all kinds of public office.

I cannot give the Committee a legal lecture, but I will explain the thinking behind the new clause. I owe a debt of gratitude to the Under-Secretary, the hon. Member for Redditch. Had it not been for her response to an earlier new clause and amendments tabled to clause 1, I would not have found the references that have enabled me to construct the new clause, albeit imperfectly.

As I understand it, any public body—one that is publicly financed, or has some public handle—is, in principle, open to judicial review or to the intervention of the courts over the way in which it conducts its duties. The body and those who conduct its business have a duty to be reasonable. The so-called Wednesbury rules, although they do not operate quite as they used to, set out the groundwork for this important area of law, which did not exist in the United Kingdom until 30 or 40 years ago. Lord Denning was perhaps the person most responsible for that. The aim is to ensure that public officials, including Ministers, behave in a proper manner. That applies to schools, colleges, local education authorities, learning and skills councils and any publicly funded bodies. They must act reasonably.

That reasonability does not mean that somebody who intervenes to stop a public authority's decision is required to agree or disagree with it. A decision may be overturned only on grounds of process. In other words, if a competent authority makes a decision in good faith, based on the facts known to it, the decision cannot be overturned simply because the Secretary of State, Parliament or the courts think that another decision should have been taken. Proper intervention can occur only when no reasonable person could possibly have come to the decision taken.

An attempt to put reasonability into the process implies that a body's conduct is so unreasonable that no reasonable person could have contemplated it. That is not a matter of a difference of professional view, but of serious professional failure. That will relate to the intervention of the Secretary of State, which is touched on in the new clause.

The new clause would insert new subsection (3) in section 496(2) of the Education Act 1996. I am sure that all members of the Committee are thoroughly familiar with that, but for anyone who is not, the relevant chapter is headed ``Ancillary functions of Secretary of State''. Just as the Secretary of State could not intervene unless someone had behaved unreasonably, within the broad terms that I have defined, nor could he continually jump up and down to intervene in matters in which a school or LEA had not done exactly as he wanted. I construe that to mean that the Secretary of State has a fall-back power. Indeed, section 495, the first of the chapter, deals with the Secretary of State's role in resolving disputes as a kind of court of last resort.

10 am

We propose—in the spirit of our earlier discussions about the rights of the child—that the Secretary of State should have a reserve power to intervene if, in the conduct of special education, any body had acted unreasonably within the broad non-legal terms that I have described. That would mean simply that he took a view different from that of an LEA or board of governors; there would have to be some systematic failure to carry out their duties in relation to education.

The Secretary of State would not want to intervene all the time. Moreover, in reality it is not only the Secretary of State, but junior Ministers and officials who may become involved. I can remember only one case, concerning the conduct of a certain matter in further education, in which I could have been tempted to intervene. I was extremely reluctant to do so, and ultimately avoided it. Such interventions are contemplated only once a year, or even once a decade.

Ministers may take the view that they already have the power to intervene under section 496 if an LEA or governing body is failing to promote the interests of a particular child. However, the new clause would ensure that failure to put the child first could be an unreasonable act. I spoke at great length at an earlier stage about the rights of the child. I am sure that all members of the Committee agree that children with special educational needs should come first, with the caveat that that priority should be consistent with the efficient education of other children. The new clause would provide for that. We are not saying to the LEA or school, ``Because you have one child, or a group of children, with special needs, you have to consider them at all costs and without any regard to any other children and their efficient education.'' We seek a balance. Our abiding concern is that an LEA should put children first and should be seen to be doing so.

First, that is, in a sense, a kind of forensic test of the fall-back power. The Secretary of State will not issue a circular on day one saying that SEN children must be put first. There could, however, be a complaint about which the LEA is intransigent. If it can be demonstrated to the satisfaction of the Secretary of State that the conduct of the LEA or body is, for no good reason, not putting the interests of children first—a good reason would be, for example, the efficient education of other children—he or she should be able to say that that is unreasonable. There should be a way to change the decision and to lean on the body to get something done. The kind of situation that I have in mind would involve an LEA that systematically refuses to issue a statement, in which case the matter could go to tribunal. However, it might be that the way in which the LEA leant on individual parents to try to dissuade them from going to tribunal was cynical and not in the interests of children. The new clause is an attempt to put children first.

Secondly, and I am grateful to the Minister for her earlier response on this matter, all our earlier discussions about giving priority to the child were in the context of admission to mainstream education. Opposition Members think it important that there should be a balance of provision among the various options and an effective choice for parents. However, that idea is tangled up with the question of whether there should be mainstream or other provision, which is partly a result of the architecture of the Bill. The Committee will recall—and Ministers have said this—that the Special Educational Consortium did not want an amendment. It did not want to retain the caveat about the educational interests of the child because it felt that LEAs had abused it. I do not accept that, but I can see the line of argument in relation to admissions to mainstream schools. If there is a debate about what is appropriate, there is not a level playing field for parents, who are not experts, and the SEN experts in the LEA who think a child unsuitable for mainstream inclusion.

New clause 5 is more neutral than that because it is not confined to admissions. It does not reopen the fraught and sometimes theological debates between special and mainstream education. It simply states that an LEA or body, including a school or governing body, has a general duty to act reasonably when it conducts special education for children with special educational needs, and that is incontestable. In our view, that embraces a duty to put the educational interests of the child first, and not to put anything ahead of those, provided that that is consistent with the efficient education of other children. That would provide an objective for the conductors of education, the authority and the schools, and it would provide a means of recourse to parents if they felt that that duty was not being discharged.

I suspect that the Minister will say that we are in tribunal territory, and I can understand that. However, it would strengthen safeguards for the child if the compass of reasonability could give priority to the educational interests of a child with special needs.

 
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