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Lord Davies of Oldham: My Lords, we are not in Committee; we are on Report. I merely reiterate what I have already said. Discrimination is specifically defined in Clause 11. Proposed new Section 28A will become Section 28A of the Disability Discrimination Act 1995. Nothing could be more explicit in linking this Bill to the position on discrimination and disability: that is the basis on which we hope that the noble Baroness will withdraw her amendments.

Baroness Blatch: My Lords, may I say that I asked a question, and my understanding is that under the rules of this House that is allowed at Report stage. Indeed, I am grateful for the clarification that the noble Lord has given. I am also grateful for the way in

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which we can use the Pepper v Hart example, which is firmly on the record to the effect that discrimination is quite specifically on the grounds of that person's disability. That in itself could be invoked in any future cases. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69 not moved.]

Lord Addington moved Amendment No. 70:

    Page 9, line 23, at end insert--

("( ) For the purposes of subsections (1) and (2) above, it shall be a defence for the body responsible for the school to show that the pupil could be equally well provided for at less cost, or could be better provided for in another school of the same kind and in the same district because that school already has facilities and staff (or both) trained to cope with the kind of special educational provision that child requires.").

The noble Lord said: My Lords, the noble Lord, Lord Northbourne, has asked me to move his amendment. I believe that the amendment is self-explanatory, and I beg to move.

Lord Lucas: My Lords, I shall be very interested to hear how the Government react to this. I am mostly interested in the principle that lies behind it. There are, for instance, three very good secondary schools in Winchester. Do they all have to provide for every kind of disability, or can they agree among themselves that a particular group of disabilities will be dealt with by one school, another group by another, and that they will thereby specialise and improve the overall service that they provide? If they are allowed to do that, they have to be able to say, "We do not provide a service, but one of the other schools does". I look forward to the Government's reply with great interest.

Baroness Blatch: My Lords, I want to add just one more point to that. This is an issue which applies also to the further and higher education sector. It would help to have clarification from the Government. To give the example of loop systems for hearing-impaired people, taking it to the extreme, one could expect every building in the land to be provided with a loop system which could be fitted into every nook and cranny of every college and educational establishment. Alternatively, there could be arrangements where, for example, a school might have no people with hearing or sight impairment but there could be an institution within reach in a local area where people are well provided for physically. It seems to me that there has to be some flexibility and, like my noble friend Lord Lucas, I hope that we shall hear something encouraging from the Minister.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for the precision with which he moved the amendment, and even more grateful to the two subsequent speakers, who have provided the basis for my response. The noble Lord, Lord Northbourne, raised these issues in Committee. His amendment would allow schools to discriminate in admissions or the provision of education where a similar school in the same area could provide as well for a child, at less cost, or better, because it is already equipped to do so.

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I fully understand the intention behind this, which is to allow schools to specialise in catering for one particular type of disability, thereby avoiding having to cater for a whole range of children with disabilities when they do not have the facilities or resources so to do. It is not the intention of the Government that every school in the land should be able to provide for every type of disability or need, however profound. I think it is recognised that this would be impractical in the short term and probably in the longer term. Indeed, we are encouraging special schools, which by their very nature cater for a particular type of disability, to link with their local mainstream schools to pass on their expertise as a contribution.

This will mean that some mainstream schools will become expert and competent in one type of disability or special educational need. I also accept that under the planning duty LEAs and schools may focus on making schools accessible to children with a particular type of disability. With that response, I hope that it will be recognised that the Government fully understand the representations made in relation to this amendment and that the amendment will be withdrawn.

Lord Addington: My Lords, I thank the Minister for his reply. I hope that the noble Lord, Lord Northbourne, will be happy with that. That was a precise answer. I can think of many questions for another stage, although I may resist them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 71 not moved.]

Lord Addington moved Amendment No. 72:

    Page 10, line 13, after ("know") insert ("(having given the opportunity for disclosure by parents, guardians or the child)").

The noble Lord said: My Lords, in relation to this amendment I am returning to a point raised at an earlier stage of the Bill. This group of amendments inserts the words "having given the opportunity" to disclose a disability when a pupil goes to a school or a college. I feel that we need to cater better for providing that opportunity as regards further and higher education. As the noble Lord said at an earlier stage, those methods and that power must be anticipatory. The fact is that if one does not know that one has to kick the methods into being, there will be delays and mistakes.

I appreciate that the Minister has said many helpful things, but I am concerned about the initial stage. People may well believe that they know what they are doing, because they have dealt with someone who is deaf before. If they need a different type of hearing aid or signing, as that was part of the person's previous education, they will not know what they are doing as everyone is different.

I have personal experience of just such a situation. Before the codes came into being, my own university thought that it knew how to deal with dyslexics because it had dealt with me, but someone else arrived who did not like dictating essays to a typist and wanted

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a few hours extra in which to write essays. They approached that person saying, "We know what we are doing", but they did not.

Blanket terms will always mean that an individual may not be dealt with properly. The amendments in this group merely allow a position in which to start a dialogue and to give some examples of what has taken place before. I hope that the Minister will be able to give me an answer that will show that such a dialogue will be given more opportunity.

I repeat that in further and higher education it is probably even more important for the simple reason that students are outside the mainstream of support. For the first time, and often after a break from education, students are studying without their parents' support. If somebody enters further education having had a bad experience of education in schools, I suggest that such assistance is even more appropriate. I hope that the Minister will be able to give me a positive assurance and take the matter further. I beg to move.

11.45 p.m.

Lord Davies of Oldham: My Lords, it goes without saying that I am sympathetic to the intention behind these amendments. The issue is whether they are necessary. I entirely understand the terms in which the noble Lord moved the amendment. It is aimed to ensure that a school or an institution has undertaken the responsibility before it can be deemed not to be liable under the less favourable treatment duty and the reasonable adjustments duty because it does not know and could not reasonably be expected to have known of a person's disability.

As I explained before, the duty on schools, as the noble Lord recognised, and post-16 institutions to make reasonable adjustments is anticipatory. Responsible bodies cannot, in general, simply wait until a disabled pupil or student arrives at the institution before considering making an adjustment. Nor can they claim that the fact that they did not know that a person was disabled excuses them from their duty to make reasonable adjustments to avoid substantial disadvantage to disabled students generally.

Under these duties, institutions and schools will have to anticipate and plan ahead. They must review their procedures and provision to ensure that they do not discriminate against potential disabled pupils or students.

Both Clauses 11 and 26 make provision for responsible bodies not to be liable in respect of both the less favourable treatment duty and the duty to make reasonable adjustments.

Most schools, colleges and universities should have, and indeed already do have, procedures in place to try and ascertain if a pupil or student or prospective pupil or student has any disabilities or special requirements. There are opportunities on the admissions form such as a tick-box, or at the admissions interview, to declare a disability or the need for any additional support. This self-identification can then form the basis for a discussion with a pupil or student to clarify their needs

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and how they will be met if that is required. I am happy to endorse such practices and to state our expectation that they should become universal. Indeed, I anticipate that this will be one of the effects of the Bill, if enacted. I am not convinced that we should make a specific provision on the face of the Bill, although of course we want the responsibility on the institution to be an active and not a passive one, which I believe was the burden of the representation of the noble Lord, Lord Addington.

I believe that the present drafting of the Bill provides for the right balance and will bring about the effect that we all want. We will be able to talk about resources in the later stages of the Bill. However, I believe that the noble Lord recognises that in schools, in further education and in higher education, significant sums have been allocated specifically to ensure that institutions meet their obligations. We all recognise that that cannot be done overnight. But, as I understood the representations by the noble Lord, it is important that there should be proactive and stimulus stages in relation to institutions. I maintain that the Bill as drafted will provide exactly this stimulus and demand.

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