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Lord Beaumont of Whitley: I was in much the same position as the noble Lord, Lord Ashley, in that I was unable to move my first amendments to this Bill and he very kindly spoke most ably to them on my behalf. I am extremely grateful to him. I now support the two amendments that he has put forward and one of my own, Amendment No. 141.
My party is particularly keen on giving the children concerned as far as is possible and sensible--and it very often is extremely sensible--a say in their future. These amendments will go a long way towards that and I hope that the Government will see their way to accepting them.
Baroness Blackstone: I was very sorry that my noble friend Lord Ashley of Stoke was unwell last week. We missed him and I am glad that he is better today. Previous discussions in this Committee illustrate all too well how difficult an area this is; it really is very tricky. However, the parent's right to bring disability discrimination cases in relation to school education is the best way to assure an effective determination of a child's rights. Parents will have a better chance than the child of identifying discrimination and challenging it. In cases where there is a difference of opinion between the child and the parents, it would be very unhelpful to exacerbate that difference.
Even in the informal environment of the tribunal an unassisted child is likely to be at a disadvantage which may lead to increased use of representation generally, affecting in turn the informality of those proceedings. Different rights of access could also lead to confusion between SEN cases and disability cases before the tribunals, especially where there is some overlap between the two. My noble friend is probably not suggesting that children should be given an unfettered right to bring their own cases to the tribunal but even allowing children that right in specified circumstances risks adding significantly to the length, the cost and the complexity of hearings.
However, we think it important that the views of children and young people should be taken into account. That commitment has led us to propose very important changes in relation to the procedure of the existing tribunal. These will strengthen the rights of the child in relation to hearings and formalise the tribunal's established procedure whereby they already accept evidence from the child. Formalising it is crucial here. It is our intention that the equivalent regulation for disability cases at the reconstituted tribunal should reflect those for SEN cases, so that they benefit from the practical experiences of the operation of the SEN regulations and facilitate the hearing of joint SEN and disability cases where this is appropriate.
I hope that, in providing this explanation of the extent to which we are strengthening the rights of the child, this will persuade both my noble friend and, indeed, the noble Lord, Lord Beaumont of Whitley, that what we are doing is establishing improved rights of the child. In the light of that explanation, I hope that the amendment will be withdrawn.
Baroness Blatch: We have touched on this aspect of the debate before but where a young person, particularly of upper secondary school age, is aggrieved by the provision that has been made for him and wishes to pursue that, we have already said it is inconceivable that the school will take action against itself, or that the LEA would support an application to the tribunal against itself. The young person may well have parents who are no longer in loco parentis, because of intervention by the courts, or the young person may have no parents and may simply be orphaned. In that case, who speaks for the child?
It seems to me that there needs to be some facility whereby the child's interests can be championed and, if not by an adult who would have a very real vested interest in not pursuing a case to the tribunal, it should be possible to have access to a third party, or, in the event of a particular grievance and--I believe the caveat is in the amendment of the noble Lord, Lord Ashley of Stoke--with the leave of the tribunal; in other words, the tribunal should be in a position to make a judgment as to whether it believes that the competence of the young person is sufficient to sustain a complaint to the tribunal.
Baroness Blackstone: In the case of an orphan, I assume that the child's guardian would bring the case. I do not think that any child under the age of 16 who is orphaned is without a guardian. However, if the child is in care, the local authority rather than the LEA has the responsibility. So it is the social services department of the local authority that would bring the case on behalf of the aggrieved child. Then, of course, it is up to the tribunal to decide, taking into account as objectively as possible all the views that are heard, who is right and to make the appropriate provision available.
Baroness Blatch: I am sorry but it is fanciful not to accept that, because the LEA is not technically the authority, or the authority is not technically the LEA, they are all of the authority. Certainly, in court an LEA is often regarded as the local authority in a particular aspect of a case. Therefore, a local authority to would, in effect, be taken to court by itself. I wonder about the independence and the proper interests of the child being respected if the carer of the child is the local authority and the local authority is caring for the child under domestic arrangements but the child, when at school, is the responsibility of the LEA. At different parts of the day he will be a local authority subject and also an LEA subject. There needs to be some facility for a child who feels aggrieved, especially one of
Baroness Blackstone: We should be a little careful about describing a tribunal in the same terms as a court. The tribunal is set up to ensure a proper discussion in an atmosphere somewhat different from that of a court when there is a dispute.
I understand that some social services departments have brought SEN tribunal cases against their own LEA, so the noble Baroness is not right to suggest that that could never happen and that a local authority is one body for that purpose. I expect the social services departments to act appropriately and to bring a case on behalf of a child who is aggrieved and unhappy.
Lord Ashley of Stoke: I thank those who have supported my amendments and I thank my noble friend for her response. I will make a bargain with her. I will take account of the advances made by the Government, as she suggests, if she will take account of the strong feeling of the Committee. Let us reflect on how we can go forward to help each other on this important issue. I beg leave to withdraw the amendment.
The noble Lord said: I shall speak also to Amendment No. 140. I hope that we agree that if a tribunal establishes discrimination, the priority should be the welfare of the child who suffered the discrimination. That is the purpose of the amendment.
New Section 28I(3)(b) permits--that is the operative word--the tribunal to make an order if it finds that a claim about discrimination is well founded. The amendment would require--not just permit--such an order to be made with a view, in the convoluted language of the Bill, to obviating or reducing the adverse effect of the discrimination on the child. That is very appropriate. I would probably have used different language--perhaps "to deal with"--but I put the exact wording to the Committee.
It may not always be possible to remedy the damage caused to a child by discrimination, especially if it is severe. There may be serious psychological effects or the child may have left the school concerned. The damage is then done. That strengthens the case for putting pressure on the tribunal to make an order that will help the child. It should be a requirement, not a possibility. For example, if a child leaves a school because of a hostile or unsympathetic attitude or because of bullying, they may need personal tuition or counselling or both. The Bill should put pressure on authorities to provide such remedies when they are clearly necessary.
The purpose of Amendment No. 140 is to enable tribunals to order the payment of compensation--perhaps one of the more controversial issues in the Bill. I know that many people are unhappy with the idea of compensation for discrimination.
As drafted, the Bill bans the tribunals from awarding compensation. That ban is entirely unreasonable and it should go. We seem unanimous on education remedies--and of course education remedies are crucial. We are all agreed that we must have education remedies. But some noble Lords, including myself, believe that compensation should be paid not as an alternative to education remedies but as an addition and as a powerful incentive for the prevention of discrimination.
Disabled youngsters suffering race or sex discrimination may obtain compensation. It is observed that the same children should have it refused to them as regards similar provision in education simply because it is an education remedy. In addition, it is possible that any education remedy may come too late to prevent damage to the child's development or self-esteem. As I mentioned a moment ago, the child may have left by the time the damage is done.
That would be very unjust. A child receives no compensation from the tribunal simply because it is not allowed to award compensation. Going to court is not a satisfactorily, readily available option. We must look at what motivates authorities. I have no doubt that the payment of financial compensation in education, as in every other field, would provide an incentive to authorities to prevent discrimination. What could be better than that: justice for the child and pressure to prevent discrimination. That would be particularly true if the number of discrimination payments were regularly published in the form of a league table.
I am well aware of the argument that payment of compensation would divert money from providing education remedies which could benefit many children. That argument is relevant and would apply only if excessive compensation were paid--many thousands or millions of pounds--as in those crazy cases where celebrities go to court and receive a few million pounds because someone said they were an idiot or frivolous. I do not have that in mind. I have limited compensation in mind, rather like the small claims court--limited, but not so limited that it has no effect on the authority. The maximum amount could be laid down in regulation. Above all, the individual has a right to some benefit if discrimination is established. I see nothing wrong in that.
It would be tedious and costly if compensation could be awarded only by the courts. As the tribunal has to take account of all aspects of the case, it is likely to throw out any compensation. I hope that my noble friend will begin to meet me for once. Any compensation awarded by the tribunal and not by the courts should be because the tribunal has taken account of all aspects of the case. I beg to move.
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