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Baroness Blatch: I, too, lend my support. Young people applying for further and higher education are at a particularly sensitive time in their life for talking openly about disabilities--or, rather, not talking about them, which is probably more the order of the day. Providing an extra tick box on a form would not cost the institutions much and I expect that they would willingly accept the obligation to allow applicants to be open. The form ought also to include an invitation to the potential student to discuss any disabilities or provision that they may require when they get to university. Our further and higher education colleges are doing an enormous amount to help young people with disabilities to be accepted into their institutions. That serves everybody's interests and I am happy to put it on record, as I have done before. We are dealing with another aspect of that. They need to be proactive in soliciting information from potential students about any disabilities that they have and whether those

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disabilities would require any particular provision and they need to be sensitive about that information. I support the amendments.

Baroness Darcy de Knayth: I cannot add any useful arguments, but I would like to add very strong support to the object of the amendments.

Lord Davies of Oldham: I have great sympathy with the intentions behind the amendments. First, I shall address all the amendments except Amendment No. 111, spoken to by my noble friend Lord Morris of Manchester in the stead of the noble Lord, Lord Ashley. The other amendments are all concerned with ensuring that schools and post-16 institutions have taken steps or have policies and structures in place to find out whether a student or a pupil has a disability. I have the greatest sympathy with the intent behind the amendments.

The duty on schools and post-16 institutions to make reasonable adjustments is anticipatory. A school or post-16 institution cannot, in general, wait until a disabled pupil or student arrives before making an adjustment. Most schools, colleges and universities should have--indeed, most already do have--procedures in place to ascertain whether or not a pupil or student, or potential pupil or student, has any disabilities or special requirements. For many institutions that will be part of the information requested in their listings procedure. It is good practice, although I do not know how many institutions use the recommendation of the noble Lord, Lord Addington, of the box being ticked by the intending student.

Schools and post-16 institutions will have to anticipate and plan ahead. They will need to review their policies, practices and procedures, including those relating to admissions, as a matter of course to ensure that they do not discriminate against potential disabled pupils or students by placing them at a substantial disadvantage. We will thereby ensure that good practice becomes standard practice throughout our educational institutions.

Clauses 11 and 26 make provision for responsible bodies not to be liable in respect of the duty to make reasonable adjustments where they do not know or could not reasonably be expected to know of a person's disability. An institution certainly would not be able to rely on a defence that it could not know of a student's disability if it had not done what it could be reasonably expected to do in order to find out whether that person had a disability.

Amendment No. 97 includes the words,


    "and identified special needs of pupils and prospective pupils".

We do not intend to extend the disability duties to cover children with special educational needs who are not disabled within the DDA definition. There is a whole framework surrounding the identification and assessment of children with special educational needs. The revised SEN code of practice will be published later this year. There is also a requirement in the

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maintained sector on LEAs and governing bodies to ensure that a child's needs are made known to all who are likely to teach him or her.

I turn to Amendment No. 111 in the name of my noble friend Lord Ashley and spoken to by my noble friend Lord Morris. This would place a duty on schools to take account of a disabled child's wishes to have his disability treated as confidential in determining whether to make a reasonable adjustment. I understand that the intention behind the amendment is to seek a formal voice for the child and we have already had substantial discussion in the course of the SEN framework of the Bill on the role of the child.

I know that what my noble friend Lord Ashley intends is that the proposed duty would only bite having sensible regard to the child's age and maturity. The problem is: who makes the decision about the child's age and maturity? The school would have to make that decision. What, then, if there is a difference of opinion between the school and the parents or between the parents and the child? It cannot be sensible to add potential layers of conflict to the situation.

We believe that it is appropriate that the child's view should be taken into account. But in the inevitable hierarchy of rights of where the final responsibility lies, the parents' voice surely must be paramount. Children may rightfully have views about their disability and about keeping it confidential, and of course they should be taken into account by the school. In some cases it will only be after talking to the disabled child that a school will be aware of what adjustments need to be made.

The most effective provision for a disabled child will be the result of a partnership between the school, the parents and the child. However, it is appropriate to place schools under a legal duty to take account of the parents' view in respect of keeping the child's disability confidential. It is an established feature of our school system that the parents act on behalf of their children. This ranges from the choice of school to appeal against non-admission or an exclusion from the school as well as giving consent to certain activities, school trips and so on. It is right that the position of the parents should be the same in this case. Many children may lack the capacity to make the informed decisions that are required.

I hope, therefore, that Members of the Committee will recognise that the Government agree with the intentions of Amendments Nos. 97, 98, 163, 164, 165 and 166. My point is that they are unnecessary because the Bill already covers the intentions behind them. These reassurances and the comments that I have made in respect of Amendment No. 111 should enable noble Lords to withdraw the amendments.

Baroness Blatch: I have tried desperately not to be political in this debate. It is an issue that goes across all parties. However, after the debate yesterday and having asked my Question today, for the Minister to say that many children lack the capacity to make such

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a request for confidentiality fits ill with the fact that the same children of the same age will be asked to request confidentiality to receive the morning-after pill.

Lord Rix: Clauses 3 and 4 are a "cop out". They are weasel words. Why could it not be kept simple by just striking out those two clauses? The meaning of discrimination is the whole purpose of Clause 11 and subsections (3) and (4) seem to negate that whole purpose.

Lord Addington: The noble Lord, Lord Rix, is right. If the Government wish to include these sections, that is reasonable, particularly with regard to colleges. I shall have to read more carefully what the noble Lord said as regards schools. I agree that we have obligations. The Bill states that,


    "it did not know and could not reasonably have been expected to know, that he was disabled".

We should get rid of that and indicate that that provision has gone. The Minister said that the Government are required to have some provision to deal with this. This is a total nonsense; we are chasing our tails when we can give clarity. The only people who stand to benefit from these subsections are lawyers. If we are to be a job creation scheme for lawyers, I suggest that we have another Bill for that purpose. I cannot see that the provision has any function here. We shall have to return to this issue at a later date. However, at this point I beg leave to withdraw this amendment.

Lord Morris of Manchester: I thank my noble friend for his response to Amendments Nos. 98, 99 and 111. I assure him that my noble friend Lord Ashley and I will look at it very carefully. I know that the Minister will not be surprised to see us returning to these issues on Report. Meanwhile I reserve my noble friend Lord Ashley's position and will not press the amendments at this stage.

Lord Lucas: Before my noble friend withdraws the amendment, may I also encourage the noble Lord, Lord Morris of Manchester, and his noble friend to pursue Amendment No. 111? I was not really impressed by the Minister's answer. All that is required is that the authority have regard to the confidentiality request. I cannot see why they do not have due regard to the confidentiality request made by a disabled person under whatever circumstances. They can make their own decisions as to what weight to put on it. It seems to me absolutely right that they should have to take notice of it, and due notice according to the particular circumstances involved. We cannot be more specific than that. Clearly the child should have a right to request confidentiality.

5.45 p.m.

Lord Morris of Manchester: I am grateful to the noble Lord, Lord Lucas, as I know my noble friend Lord Ashley will be when he reads the Official Report.


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