Special Educational Needs and Disability Bill [Lords]

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Mr. Hayes: In a real sense, this discussion turns attention away from admissions, although it is true that admissions might give rise to questions of reasonableness. Necessarily, and certainly predictably, the Committee has tended to focus on getting a child into a particular type of school, be it mainstream or special. We have perhaps dealt insufficiently with what happens thereafter, and nor, perhaps, has the Bill, although I do not want to make a judgment in that regard. The tribunal is part of that process, but my hon. Friend the Member for Daventry makes a persuasive case for the need for an additional safeguard to give parents confidence that, once a decision is reached on the location of education provision, continuing issues will be dealt with properly.

Mr. Boswell: I am drawing my remarks to a close, and my hon. Friend has helped me. In securing a child's educational best interests, the first safeguards are the professionalism of the local authority special educational needs officers, special educational needs co-ordinators in individual schools and the system itself. One should not demonise local authority officers. They are under great pressure and try to do their best with the resources available, but certain cases give cause for concern, and the question arises of recourse.

As my hon. Friend said, a great deal falls within the remit of the tribunal. However, to be positive, we seek not merely a defensive, ``You-can-complain-along-these-lines'' route, but a statutory obligation and understanding that local authority officers and others should put the child's special educational interests first. No Committee member will disagree with that principle, although we need to argue about how to secure it. None the less, it is right to end as we began by reminding ourselves that that is the most important issue that we must consider. We must satisfy not just ourselves, but parents and future generations, that the arrangements to secure that objective are the strongest possible.

Jacqui Smith: As the hon. Member for Daventry pointed out, we conclude by returning—probably rightly—to the important issue of the child's needs and best interests. I am sure that, like the Government, all Committee members believe that the interests of children with special educational needs and their peers must be safeguarded, and I hope that the Government's commitment to that is not in doubt. The hon. Gentleman's choice of the sections of the Education Act 1996 on which to focus has proved helpful. I hope to give some reassurance about the possibilities to which existing sections give rise, and what the Department can do, and has done, in that regard.

In the debate on clause 1, I highlighted the way in which the Secretary of State could use his powers under sections 496, 497 and 497A of the 1996 Act to help protect the interests of the child. Clearly, the hon. Member for Daventry has reflected on that and is trying to make explicit the link between section 496 and the Bill. We cannot accept the new clause, largely because we believe that children's best interests are already safeguarded. In the light of the hon. Gentleman's comments, however, it is important to point out that the Secretary of State's powers of intervention are already clear. I assure the Committee that section 496 of the 1996 Act allows the Secretary of State to intervene when LEAs and governing bodies of maintained schools are performing their functions unreasonably, or propose to do so, and that includes those functions that relate to special educational needs.

10.15 am

The hon. Gentleman's interpretation of ``unreasonable'' was reasonable. If an LEA or maintained school abuses new section 316--the hon. Gentleman said that that is not the primary target of the new clause, but it is an important consideration--the Secretary of State will be able to act. If the abuse goes beyond acting unreasonably and amounts to acting in bad faith, the LEA's actions may be judicially reviewed.

When we discussed the Secretary of State's powers of intervention last week, the hon. Gentleman said, at column 68 of Hansard, that he hoped that we might be

    ``able to take the final step and achieve a system that stipulates . . . that LEAs and schools must do right by special educational needs children.''—[Official Report, Standing Committee B, 27 March 2001; c. 68.]

The Government applaud that sentiment. I am happy to give an assurance that the statutory guidance that will back up the new inclusion framework will set out clearly the Secretary of State's powers of intervention and the general circumstances in which they can be used to safeguard the interests of children with special educational needs. I believe that that is the hon. Gentleman's main concern.

I confirm that my right hon. Friend the Secretary of State has used the powers to protect pupils with special educational needs, and I shall give some examples that will, I hope, reassure Opposition Members. Section 497 was used recently to direct a maintained school in London to admit a child whose statement named it as the school preferred by the child's parents. Its failure to admit the child was in default of a statutory duty, and, in reaching his decision, my right hon. Friend had to assure himself that the school was suitable for the child's age, ability and special educational needs.

As the hon. Member for Daventry said, sometimes it is not the use of particular powers but the fact of their existence that helps Ministers and others to achieve the objectives that we all share. Officials, acting on our instructions, have called in a number of local education authorities when we have had concerns, often promoted by parents, about special educational needs provision. Those concerns go wider than simply the issue of admission to a particular school. For example, an authority was called in because it was operating a blanket policy not to quantify provision in statements, and that issue has caused much concern as we have examined revisions to the code. We also called in an LEA in which a child had been out of school for a long time because of a dispute about the school to be named in the statement. Those meetings were held on the basis that the authority had been called in to justify why the Secretary of State should not act. In such cases, the mere threat of using his powers resulted in LEAs putting matters right as quickly as possible.

The hon. Gentleman raised the matters of leaning on parents and cases in which LEAs refuse to issue a statement. He was right to say that if an LEA refuses to issue a statement, that decision could be taken to the tribunal, and that if a parent complains of LEA conduct leading to the statement decision, the Secretary of State could investigate in a similar way. If bad faith were alleged, judicial review could be more appropriate. That shows that the Secretary of State's existing powers of intervention, provided by sections 496, 497 and 497A, allow him to take action to help pupils with special educational needs.

I should point out some of the dangers of the new clause. The hon. Gentleman has argued that it is not about inclusion or the placement of children. It would, however, undermine our proposals to strengthen the right to a mainstream place for children with special educational needs. I accept the hon. Gentleman's assertion that its sole intention was to protect children, but it would have a similar effect to the reinstatement of provisions in the first caveat of section 316. It would allow LEAs and maintained schools wide scope to argue that inclusion in the mainstream was not in a child's educational interests.

I pray in aid the arguments of Dr. Phillipa Russell, the director of the Council for Disabled Children. In a response to the shadow Secretary of State for Education and Employment, the hon. Member for Maidenhead (Mrs. May), she noted concern that the needs of the child were ignored, but pointed out that clause 1 amended only one section of the Education Act 1996. Dr. Russell said that the needs of the child were explicitly referred to elsewhere in the Act, the associated regulations and the code of practice.

That brings us back to arguments that I made in relation to amendments tabled to clause 1. The interests of children are widely covered, and are central to everything that we are trying to do in terms of special educational needs.

Mr. Boswell: I am listening with interest to the Minister's explanation. It would help if she were to write to Committee members to explain in which other parts of the Education Act 1996 the needs of the child were put first. It would be useful for that to be codified, so that we could review it before subsequent consideration of the Bill.

Jacqui Smith: I am certainly willing to write to Committee members about the way in which education legislation and the SEN framework ensure that children's educational needs are appropriately met. That is the crux of the argument. There is no dispute about the importance of ensuring that the interests of all children are met. Our argument is about the extent to which they are properly represented in legislation, the extent to which they could be highlighted in statutory guidance on inclusion, and the extent to which the Secretary of State's powers have and can be used to ensure that children's interests can be safeguarded and that LEAs and schools cannot act unreasonably.

As I have given those assurances, and as the gap between our positions has narrowed, I hope that the hon. Gentleman can withdraw the motion.

Mr. Boswell: I am grateful for the Minister's response, particularly for her undertaking to detail the safeguards to the Committee. Even if one could find them by looking through legislation, it would be useful to have them consolidated and codified.

I remain in considerable doubt about whether perverse effects would occur. That was, as she acknowledged, one of my reasons for bringing the argument away from an explicit consideration of admissions policy and widening it to deal with the conduct of various bodies with respect to the Education Act. She has noticed the approximation being resorted to in the discussion of this matter, which has been based on the common principle of wanting to put the child first and the common understanding that, although most local authorities and schools want to do the right thing by children with special educational needs, there are deficiencies that sometimes go beyond mere inadvertence. They are sometimes institutional, and it is necessary to tackle them and put them right.

We are not hugely at odds on that issue. My hon. Friends and I remain concerned that unless explicit provision is made for the educational rights of the child, those rights may not be well served. The argument that it would be perverse to assert those educational rights is odd in a world filled with attention to human rights. We have had the incorporation into United Kingdom law of the European convention on human rights, for example. It is both odd and implausible to argue that declaring a child to have educational rights could subvert the exercise of those rights.

I do not want to replay past arguments, however. The Opposition will closely consider what the Minister has said. I welcome, for example, the fact that she has added more flesh to the argument that the Secretary of State really has teeth and will call in delinquent local education authorities and beat them up if necessary. I shall study with interest the safeguards that the Minister has said already exist. I shall seek an overview and try to judge whether those safeguards will be sufficient.

I should like the Minister to do something too, however. Will she consider whether, beyond today's discussion and my imperfect drafting and knowledge of administrative law, some wise heads can formulate a way to safeguard the special educational interests of the child, while minimising, to the satisfaction of the Minister and others, the likelihood of those rights being subverted in practice? I do not ask her to commit herself, but to reflect on what I have asked.

We have been afforded a fortunate opportunity in considering the Bill. Having thought that we should be running to the country tonight to begin other activities, we now find that we have another month. The opportunity for proper consideration on Report has already been set down as parliamentary business, and I cannot think that it is beyond the wit of man to come up with something to satisfy us. I shall see what I can offer, and perhaps the Minister can do likewise. We should have a benign arms race to find a way to safeguard a right that we all think is important and to find an approach to advancing the special educational interests of children that would not risk doing the opposite. That is the paradox that we face.

With genuine good will, in what has been a constructive Committee, and pending a further round of discussion on this matter, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

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