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Lord Lucas: I am grateful for those comments. On Amendment No. 19 and subsection (1), I should be very grateful if the noble Baroness could write to me and tell me with which problem that subsection is meant to deal, just for my enlightenment. I should also be very grateful if the noble Baroness could save me having to table an amendment on Report, which is properly worded, and write to me about the second half of Amendment No. 220. As it is worded, I see that it deals with independent schools, but it is actually meant to be a reproduction of Clause 411(5) of the 1996 Act, which deals with maintained schools. I have just drafted the amendment wrongly and, if she could explain to me why that is not appropriate, then I will not table an amendment on Report to do what I should have done at this stage.

I am very grateful for what the noble Baroness said about Amendment No. 29 and I am much better informed as a result.

Lord Baker of Dorking: Before we part company with this group of amendments, the Minister kindly set out very explicitly the arrangements where there is a dispute between the LEA and parents--particularly where a school has been identified and failed. Disputes between parents and the LEA can occur much earlier during the process of when the statement is being determined and where the appeal is being made to the tribunal. It occurs to me--and this is fishing for later in the Bill--that it may have been drawn to the Minister's attention that a growing number of LEAs are now appointing barristers--counsel--to put their case at an SEN tribunal. Not all of them are doing so, but quite a few are. That definitely puts them at an advantage vis a vis the parents, unless the parents can also fund the very expensive legal advice involved. If this Bill is passed, will there be a perfectly level playing field? I do not think there will be. It may well be that in certain circumstances legal aid should be made available to parents, particularly when it is known that the local education authority is going to employ counsel, because that weights the argument strongly in favour of the experienced legal advice.

Baroness Blackstone: I am grateful to the noble Lord, Lord Lucas, for what he said about my explanation, especially on Amendment No. 29. I am very happy to write to him on the other two issues that he has raised.

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In response to what the noble Lord, Lord Baker, has just said, one reason why we want arrangements to resolve disputes before they reach a tribunal is to avoid those costs. I will certainly take back what he has said about the issue of local education authorities employing expensive barristers. Perhaps when we get to the relevant part of the Bill we can discuss the issue further.

Baroness Blatch: I shall withdraw Amendment No. 18, but I might also find it helpful to have a copy of the letter that is going to my noble friend Lord Lucas, because I am baffled by the provisions. I understand what the Minister has said--in a sense it repeats a number of responses to amendments that we have had already today. She is giving very accommodating answers, but they conflict with what is in the Bill.

The Bill says that Section 316 does not prevent a child from being educated at an independent school that is not a mainstream school or a school approved under Section 342 if the cost is met otherwise than by a local education authority.

I understood the Minister to say that the LEAs are free. She has mentioned other parts of the statute that refer to the freedom for LEAs to pay in whole or in part for a place at an independent school. However, as I understand the Minister's answer, Section 316 does not prevent a child from being educated in an independent school or a school approved under Section 342, whoever pays--the LEA, an individual, an organisation, a voluntary body or the parent.

I therefore find the reference to the cost being met otherwise than by an LEA confusing. In responding to the point made by my noble friend Lord Lucas and in writing the letter to explain this section, I hope that the Minister will reflect that these words are otiose here. A child is not prevented from being educated in an independent school, because the cost can be met by anybody. No one is prohibited from meeting the cost of the fees, including the LEA, as I understand the Minister's reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

7.15 p.m.

Lord Pearson of Rannoch moved Amendment No. 21:

    Page 2, line 10, at end insert--

("( ) Section 316 does not prevent a child from being educated in a special independent school where the cost is met by a local education authority.").

The noble Lord said: I shall not speak to Amendment No. 41, because it is on a different subject. Perhaps it should wait its turn on the Marshalled List.

I apologise for the typographical error in the wording of Amendment No. 21, which should, of course, refer to an "independent special school" and not to a "special independent school". The Minister may already have set my fears at rest over the amendment, so I can be brief.

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The amendment would merely make sure that independent special schools were not caught by the new provisions of Section 316A(1)(a), to which my noble friend, Lady Blatch, has just referred, and which seem to prevent funding by local education authorities of places in non-mainstream independent schools.

My worries may be unfounded, but I fear that an independent special school could be held to be neither a special school nor an independent school as those expressions appear technically on the face of the Bill, so I wanted to be quite clear on that. The previous section seems to make clear that special schools can continue to be funded by LEAs but the Bill is not clear to me on the position of independent special schools.

As usual, I should declare an interest because my daughter has received a wonderful education in an independent special school, one of the Steiner Camp Hill community schools and has moved on to a residential college with the same philosophy. There are, of course, other kinds of independent special schools, I believe more than 50 altogether, so I assume it is not the intention of the Bill to cut off their main line of support, which comes from the LEAs. I beg to move.

Lord Davies of Oldham: I shall try to be as brief as the noble Lord, if only because, if I set out to repeat what my noble friend the Minister has just said, there will be a danger of my either being totally repetitive, or deviating from it or, even worse, contradicting it and I should be in a parlous state.

I wish to re-emphasise that the points that were made with regard to the last amendment certainly obtain in relation to independent special schools. There is no separate legal category for them; they are all independent schools and, therefore, the argument presented by my noble friend a moment ago on the previous amendment obtains in respect of the special schools.

Lord Pearson of Rannoch: I am most grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 27 not moved.]

Lord Ashley of Stoke moved Amendment No. 28:

    Page 3, line 8, after ("steps") insert ("in relation to the arrangements it makes for education or associated services provided for, or offered to, pupils at the school").

The noble Lord said: Amendment No. 28 concerns the question of reasonable steps being taken by the local education authority or the school before excluding a child. It is yet another attempt to make sure that children with special educational needs cannot be unreasonably blocked by the LEA insisting on exclusion from mainstream schools. Time and time again this afternoon, we have heard that there are many genuine fears about children being unreasonably excluded.

The RNID has sent some striking examples--one being where it knows of teachers who refuse to wear neck loop microphones with a deaf child in the class. The significance of that is that that child's education

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stops dead because the teacher refuses unreasonably to wear a neck loop microphone. I find that really shocking and absolutely indefensible to be damaging a child in that way simply because of that excuse.

The second example that I know of is the exclusion of deaf children because the presence of communication support would distract other pupils. Perhaps we have seen this afternoon how nonsensical this is when you have communication support which goes almost totally unnoticed and to argue that the child should be excluded because of communication support is not only wrong, it is bizarre. On that basis, no handicapped child with any disability could be assisted in school, because any assistance could be construed as distracting to other children.

The clause permits exclusion only if the school is able to show that no reasonable steps could have been taken to include the child. The problem is that the clause has no indication of what is reasonable and the RNID says that it has many examples of necessary minor alterations to schools being used to justify exclusion. If they are going to change a window, a little brickwork, and use that as an excuse for excluding children, anything goes and we simply have to stop this.

I conclude by saying that the amendment will ensure a broad interpretation of "reasonable steps" and will clarify the point that these may go beyond a particular class and the phrasing in Clause 10 where it is intended to be comprehensive about what goes on in schools. I beg to move.

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