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Lord Rix: I should like to add to the argument of the noble Baroness, Lady Sharp, on Amendment No. 105. It is not saying that we want to remove these regulations; we are saying that they should be expressed in the code of practice. The reason is that when these regulations are on the face of the Bill there seems to be a draconian element to them and they seem to provide in tablets of stone the excuses that schools are looking for. Whereas yesterday the noble Lord, Lord Davies of Oldham, said, in response to a question of mine:


I would have thought that applied to these particular clauses precisely, and I would have thought we would all be delighted if they went into this ever-increasing size of code of practice. On the other hand it would be capable of interpretation perhaps more liberally than on the face of the Bill.

Baroness Sharp of Guildford: Before the noble Lord, Lord Morris, replies, I endorse the points made by the noble Lord, Lord Lucas, and by the noble Lord, Lord Rix. The measure that is particularly objectionable is paragraph (a) of subsection (4) because it leads to selectivity and to exclusion. It would be very unfortunate if that were on the face of the Bill.

Lord Morris of Manchester: While I thank my noble friend Lady Blackstone for her response, as before, I reserve the position of my noble friend Lord Ashley in regard to pressing the amendments further on Report. Meanwhile I know that he will be as appreciative as I am of the support they received in Committee here today. Indeed, I thought my noble friend Lady Blackstone ended her speech on a highly positive note. It may therefore not be necessary for my noble friend and I to work too strenuously to carry the amendment on Report. It seems that we may have the Minister's support at that stage. I trust that is not undue optimism. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 105 and 106 not moved.]

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7.15 p.m.

Baroness Blatch moved Amendment No. 107:


    Clause 12, page 11, line 19, leave out ("or services") and insert (", services or finance").

The noble Baroness said: In moving Amendment No. 107, I shall speak also to Amendments Nos. 108 and 172. We are still on Clause 12 with the theme of what is reasonable for a school to do in order to overcome disadvantage to a disabled pupil and what would be unreasonable or excessive. In making that judgment the governors of the school have a list of considerations given to them in the Bill, which they need to take into account when assessing what steps they can reasonably take to accommodate a disabled pupil.

I am pleased to note that subsection (4)(c) lists the costs of taking any particular step and it is a pity that cost was not similarly emphasised in Part I of this Bill dealing with children with special educational needs. Whether we like it or not, costs matter and, in the real world, finances available to local authorities and their schools are always limited. However, subsection (4)(e) goes on to advise the governors that they can take into account which aids or services would be provided under legislation.

That does require amendment. It is not just aids or services to be provided; it is money. The governors will naturally bear in mind the cost of any improvement proposed to assist a disabled child as well as the finances they have to meet that cost. They would not be good governors if they did not ensure financial probity in these matters. The real concern is the inevitable tension that will result from a Bill that raises everybody's expectations; which puts legal obligations on local authorities and schools who may not have the resources or who may have no choice but to meet such obligations resulting in serious financial problems elsewhere in the system.

Amendments Nos. 108 and 172 are about proportionality. It was, I believe, my noble friend Lord Lucas--or somebody else around the table earlier this afternoon--who addressed this whole issue of proportionality. The amendment to Clause 12 of the Bill relates to provisions requiring disabled children not to be substantially disadvantaged in respect of a school's admissions policy or, where they are in school, in respect of their education there. There are similar provisions relating to disabled students in higher education in Clause 27 of the Bill, to which we are proposing a similar amendment.

In summary, I welcome and support the policy embodied in this part of the Bill, which seeks to protect disabled children from discrimination at school. I also endorse the Government's recognition in this clause that the anti-discrimination requirements need to be tempered by reasonableness, having regard among other things to the interests of the other, non-disabled schoolchildren. The amendment is designed to give specific practical effect to this principle in one important way.

By way of background, Clause 12 is designed to extend the scope of the Disability Discrimination Act 1995 by inserting a new provision--the proposed new

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Section 28C of the 1995 Act. The proposed new Section 28C would extend the anti-discrimination rules to the sphere of school education. In particular under the proposed subsection (1), the responsible body for a school--generally the LEA or, for a private school, the governor or proprietor or, as I argued yesterday, the same person--is obliged to take such steps as are reasonable to ensure that disabled children are not placed at a substantial disadvantage compared with non-disabled. However, both in its policy for determining school admissions and, once children are in school, in respect of their education and associated services, the proposed subsection (4) is intended to clarify what is meant by "reasonable" in this context; that is, what is the extent of the duty to take such steps as are reasonable?

The proposed subsection (4) lists seven factors--(a) to (g)--to which regard shall be given in determining reasonableness. The last one in paragraph (g) of the proposed subsection (4) is that regard must be had to the interests of other pupils and persons who may be admitted to the school as pupils--"other" meaning non-disabled pupils and applicants. We support that principle. It does seem right in determining the rights of disabled children not to be discriminated against, to take account also of the rights of the rest of the children. The right to be educated properly and effectively at school is something that should be enjoyed by all children.

Our aim is to give practical effect to the Government's principle. We propose that the principle in subsection (4)(g) should expressly state the consideration that the interests of non-disabled children,


    "will depend in part on the proportion that disabled pupils constitute of the total number of pupils in any one lesson or class or school".

The example has been given of a school that gains a reputation for dealing with children with autism. Over a period, more and more children with that particular problem go there, to the point when the education of all the children--those with autism problems and the rest--is affected. My amendment is about proportionality.

We hope that the Minister will agree with that proposal. We support the compassionate objectives of the Government's provisions. It is right that disabled children should not be discriminated against. However, allowing that to result in a disproportionate concentration of disabled children in any one class or lesson or school would be a form of dogmatic political correctness, which I would not want to support.

I emphasise again that the important point is what is appropriate. If it is appropriate to have a large number of children with similar disabilities and that is accommodated by the school, by the parents and by the LEA, of course that is the right thing to do. However schools that are particularly effective in dealing with children with particular conditions or

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behavioural problems may suddenly find themselves with so many placements that their provision becomes ineffective. I beg to move.

Baroness Blackstone: The amendments relate to the factors in Clauses 12 and 27, which provide guidance on what schools and post-16 institutions should have regard to in determining what is and is not reasonable in the context of the duty to make reasonable adjustments.

Amendments Nos. 107, 108 and 172 would add factors to the lists. Amendment No. 107 would insert the need to take account of the finance provided for the disabled pupil under the SEN framework. The aids and services needed to cater for a child's SEN needs will be identified and provided through the SEN framework. For those with the most acute needs, they will be set out in the statement of SEN. The resources made available to meet particular SEN are an intrinsic part of the provision of those aids and services. More generally, they will form part of the resources available to a responsible body, so they can be taken into account under subsection (4)(b).

The intention behind Amendments Nos. 108 and 172 is to make the school or post-16 institution consider the proportion of disabled pupils or students in a class when considering what reasonable adjustments should be made. However, in many cases the proportion of disabled children or students in a class has no relevance to the question of whether any particular reasonable adjustment will affect the interests of other children. For example, if a school has a practice of allowing a disabled child to do an alternative sport to the one that the rest of the class are doing, it will rarely make any difference to the interests of the other children if a few extra children take that alternative sport.

Similarly, if college students who are blind receive material on audio tape, whether one person or five people in the class receive this will not affect the interests of the other students. The interests of other students will not always depend even in part on the proportion of children with disabilities in the class, as the amendment suggests. We do not think that the Bill should suggest that it does. If the interests of the other students are affected in that way, the school or post-16 institution will be able to take that into account when deciding what adjustments to make under the Bill as it is currently drafted.

The amendments are not necessary and they are not very helpful either, so I hope that the noble Baroness will not want to press them.


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