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Baroness Wilkins: I wish to support Amendments Nos. 138 and 140 moved in the name of my noble friend. I do so mainly because the threat of being forced to pay compensation concentrates the minds of recalcitrant authorities so that they do not discriminate in the first place. If schools or LEAs face
The fact that a person under the age of 16 will not receive compensation while someone over that age might win a case for exactly the same injustice seems grossly unfair. Moreover, as my noble friend Lord Ashley of Stoke pointed out, if a young person is discriminated against on the grounds of sex or race, he will receive compensation. It is discriminatory in itself that it should not be the same in relation to disability. There will be exceptional cases where it is not possible to get an educational remedy for an act which has taken place which has put the child at a substantial disadvantage, for example, the child who is not allowed to go on a year six school trip or is not allowed to take part in the end-of-year school play. In those cases compensation is the only means to address the hurt to that young person. I hope that my noble friend the Minister will reconsider and include financial compensation in the SENDIST armoury.
The Earl of Mar and Kellie: I speak to my Amendments Nos. 155 and 156. My Amendment No. 155 is being moved following the receipt of briefing material from The Law Society of Scotland, the consortium Children in Scotland and RNIB Scotland. This amendment is relevant to the Scottish situation. The proposal to exclude financial remedies in cases of discrimination against school pupils may possibly be appropriate in the English and Welsh context, where the SEN tribunal scheme is already well-established but seems to me a rather poor graft on to the Scottish system; that is, that these matters are dealt with in the sheriff court. There is indeed some doubt that this was adequately consulted upon in Scotland.
The sheriff court is an admirable institution, but it is not a cosy place. I was very much at home as a social work department court duty officer. However, most citizens do not look forward to a visit to the sheriff court. The sheriff court always has the powers of a financial remedy. It is odd to try to deny the sheriff court its usual powers, especially as the rural and remoter areas are most likely to produce cases for which there is no educational remedy.
There are at least three issues behind the amendment. The first is that already spoken about, the powers and traditions of the sheriff court. The second is the fact that discrimination against school pupils is not being dealt with as seriously as discrimination against older students. The third is that the treatment of school age discrimination will not be dealt with in line with other equal opportunities legislation.
Because I believe that Scottish children deserve to be treated before the law in the same way as adults in educational matters, I believe that the Bill should give the sheriff the opportunity to force the issue with education providers. They must be focused on their task of providing what they should provide, and not just be able to walk away without doing anything,
Finally, and very briefly, I speak to Amendment No. 156. This amendment clarifies that damages for discrimination will be equal under Chapter I to those in Chapter II of the Bill. The amendment clarifies that injury to feelings is a substantive reason for damages in both chapters.
Lord Addington: I support the noble Lord, Lord Ashley, the noble Baroness, Lady Wilkins, and my noble friend in these amendments. I have always felt that the fact that there should be no compensation in educational matters is unacceptable. As I have already said--and I believe I said it at Second Reading--if one followed the logic that the money might be better spent on somebody else that would mean that every single claim that is laid against hospitals would be invalid. I feel that this is something of a slap in the face for the whole principle of inclusion.
Baroness Blackstone: The Bill provides a wide right of redress for disabled pupils in school who have experienced discrimination. It will echo that for children with SEN, with an emphasis on remedy by educational means rather than financial compensation. That might involve allowing a pupil to participate in a theatre visit, for example, or to take part in a lesson or other activity from which he or she had been unfairly barred. If the discrimination resulted in the child missing education, a school might be ordered to provide additional tuition to allow them to catch up. The tribunal may require the school to change its policy on bullying in order to meet the needs of disabled pupils. Alternatively, it may order the school to offer the child pastoral support to come to terms with the effect of the discrimination. All of that should put the child's education back on track, which is what we are concerned about.
We are mindful of the reasons for the DRTF's recommendation that the jurisdiction of the SEN tribunal should be extended. The DRTF was impressed by the work of the tribunal in hearing SEN appeals, particularly the less formal nature of the process, which reduces the need for parents to pay for formal legal representation.
Allowing for the payment of financial compensation would undermine the ability of the tribunal to be informal and user-friendly, as we want it to be, and to base its decisions on what is best for the individual child in educational terms. It might well create a culture of litigation, resulting in the process becoming more formal, more adversarial and possibly more acrimonious. It would certainly encourage greater use of paid advocates, which we want to avoid. The Committee surely does not want to jeopardise all that is good about the tribunal for the sake of what in many cases would be a very small sum of money. Financial compensation paid to parents of disabled children who have suffered discrimination may soothe feelings, but
I shall not pretend that financial compensation is a simple issue, though. There are clearly precedents in sex and race discrimination cases, as the noble Earl said. We are proposing financial compensation as a means of redress for cases of disability discrimination in non-school further and higher education settings. However, the sex and race discrimination legislation was introduced 25 years ago, when there was no alternative to redress through the courts. If that legislation was being enacted today, a different forum for redress might be considered appropriate. The fact that there is no financial compensation does not mean that there will be no costs for LEAs and schools that discriminate. If the tribunal orders a remedy, there is likely to be a cost to the school or LEA that has discriminated. However, the money that they spend will go directly towards improving the educational experience of the child. That is the right approach.
The same arguments apply in Scotland. Educational remedies are paramount for a disabled child who has suffered discrimination in school. It is important that disabled children in Scotland, England and Wales have the same rights.
We have consulted across the whole of England, Wales and Scotland on the Bill. We commissioned the University of Edinburgh to support the consultation exercise in Scotland to ensure proper coverage. We want the same provision across Great Britain because the issue of equal rights is a matter reserved to the UK Parliament. There is no reason to have a different approach in Scotland from that in England and Wales. A disabled child who is discriminated against suffers an educational loss whether he lives in Stirling, Sunderland or Swansea. I know that strong views are held on the issue, but, having heard what I have said about the importance of educational remedies, I hope that my noble friend and the noble Earl will not press their amendments.
The Earl of Mar and Kellie: Perhaps I may make two comments about the response of the noble Baroness. First, it is important that some public mark identifies the local authority as a discriminator. That the local authority has had damages awarded against it is a better headline. Everyone knows what has happened.
Baroness Blackstone: The whole purpose of the Bill is to prevent LEAs from walking away in these circumstances. As far as publicising the findings of a tribunal, I accept what the noble Earl says: that it is right that it should be made known if an LEA has discriminated. But I do not believe that there is anything to prevent that happening.
Baroness Blackstone: It is rather more difficult to specify precise educational remedies when talking about further and higher education than it is for children in schools. The circumstances are rather different. For those reasons the Government reached the conclusion that it is right with respect to school children to have a clear educational remedy to support that child's educational future. However, if a university has been found to discriminate and it has already damaged the opportunities of a young person in relation to his future career, a slightly different approach is right. Indeed, that is exactly what was recommended by the DRTF.
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