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Baroness Wilkins: My Lords, because of the lateness of the hour, my noble friend Lord Ashley has had to leave as he has been unwell over the past two weeks. I wish to speak to Amendment No. 108 on his behalf, and shall read from his notes.

The amendment would permit compensation in "exceptional circumstances", such as when provision for educational need is not possible. The arguments and counter arguments on compensation in general were presented in Committee, but the present amendment limits the possibility of compensation to "exceptional circumstances". There is no doubt that the amendment is principled, logical and reasonable.

My noble friend repeats that we all accept that an educational remedy is the ideal. The Minister recounted long lists of possible remedies, but I hope that she will admit that there will be some situations when an educational remedy is not possible. If so, and if the amendment is not accepted, the child will be denied any remedy. The amendment would ensure some measure of justice for all.

If discrimination can arise for a further education student, for which no educational remedy is possible, it can also arise for a school child. The Minister's reply in Committee about this was noticeably weak. She said that the circumstances are rather different. I see no significant difference between a 17 year-old in a school sixth form and a 17 year-old at a further education college.

The Minister claimed that if the sex and race discrimination Acts were being enacted now, they might consider a different forum for compensation. We are not talking about a forum but about whether or not financial compensation is allowed. It is inconceivable that any revision of the sex and race Acts would remove the power to compensate.

Voluntary organisations believe that this particular clause is incompatible with the Human Rights Act. We are now asking for compensation to be payable only in exceptional circumstances. That implies serious discrimination with no educational remedy. But Article 13 of the convention says that there must be a remedy for a breach of convention rights. Article 2 prescribes a right to education. Although Article 13 is not included in the Human Rights Act, the Government stated at the time that it could still be relied on. If this amendment is not accepted, the Government are laying themselves open to a well-publicised test case.

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In Committee, the Minister claimed that paying compensation would damage the tribunal's ability to base decisions on what is best for children in educational terms. But the tribunal should be considering what is best for children without qualification, although in most, but not all, cases it will be in educational terms.

I believe to be totally misguided the argument that the change proposed by my amendment would make tribunals formal, acrimonious and adversarial. Employment tribunals cope very satisfactorily with awarding compensation and still remain informal. The SEN tribunal will inevitably change a little when it becomes SENDIST, with new powers of enforcement against LEAs. As the Minister pointed out, the ability to require an educational remedy will put costs on LEAs and that could lead to acrimony. However, there is no reason at all why the tribunal proceedings should become more acrimonious and legally based by the addition of making payments of compensation possible, particularly as the cost could be less than for educational remedies.

I have no doubt that publicly recorded payments of compensation would cause LEAs to think again, and that will be a powerful protection for disabled children. If the Government continue to deny financial compensation, they will be deliberately weakening the rights of all disabled children. I urge the Minister to think again.

2.30 a.m.

Baroness Blackstone: My Lords, we believe that allowing for the possibility of financial compensation, even to the limited extent now proposed by my noble friend Lady Wilkins, would fatally undermine the ability of the tribunal to operate as successfully in disability cases as it has done in SEN cases. If financial compensation were available in addition to other remedies, the tendency would be to focus on the financial rather than the educational remedy and make less likely any positive change in the child's educational experience.

The tribunal has done a good job in making itself accessible to parents from all walks of life. It currently receives about 2,500 appeals each year and parents feel the need for legal representation in only one in five cases. We want to ensure that that relative informality and user friendliness of the tribunal is preserved so that parents will feel confident that they can bring disability cases without incurring great expense and that they will not be disadvantaged by not having any legal or other representation.

We must remember that the DRTF recommended that those cases should be heard by a reconstituted tribunal. Allowing the tribunal to award financial compensation would, I am afraid, in spite of what my noble friend has just said, undermine those positive features of which the DRTF approved and make it less likely that children will receive the educational remedy which is so crucial to shaping their future prospects. There will be very few cases where no educational

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remedy for the individual child is possible. But even in those cases, the tribunal can direct an apology and a change to policies, practices and procedures to make sure that the school or LEA does not discriminate in that way again.

I should point out to the noble Lord, Lord Addington, that we have never said that the reason for not paying financial compensation is that the money might be better spent elsewhere in the education system. On the contrary, we have always been clear that being found to discriminate will cost both LEAs and schools. The difference is that the money they spend will go to benefit the child in the best possible way by improving his or her educational experience.

I turn to the noble Earl's amendments about redress for disability discrimination in Scotland. I have already set out the reasons why we do not believe that financial compensation is appropriate. This applies wherever in Great Britain such discrimination has occurred. It is important that the rights of disabled children should be the same throughout the United Kingdom.

As I said in Committee, the situation in Scotland on the rights of redress is, of course, not exactly the same as that in England and Wales. Scotland does not have a tribunal, and cases of alleged discrimination will be heard in the sheriff court. None the less, the sheriff will have a range of remedies at his disposal, including the power to order a responsible body to refrain from discriminatory practices. The sheriff will also be able to order positive measures to be set in place to rectify shortcomings in the educational provision made for a disabled child. These are strong measures. We believe that they are an appropriate means of redress.

The noble Earl would like to see damages awarded for hurt feelings, but I find it hard to accept that money could ever properly compensate for hurt feelings. Surely it is better to focus on a change in the discriminatory behaviour. A financial award would not remove the fact that a child had suffered discrimination. Making a payment does not require the discriminator to change his or her behaviour, or even to say, "I'm sorry". However, the educational remedy will ensure that a real difference is made to the quality of the child's educational experience. From the discriminator's point of view, it may be easier to give money to get rid of a problem than tackle its root causes; for example, it would be easier for a school to pay a few hundred pounds' compensation to a disabled child than to arrange additional "catch-up" tuition for a child who has been unfairly excluded from lessons.

I know that this is an issue on which there are strong and sincerely held views. However, I hope that what I have said will persuade noble Lords not to press their amendments.

Lord Addington: My Lords, the Minister does not seem to have moved very far from her previous position. It is possible that I slightly over-stated one or two matters. However, financial compensation should be available if all other remedies have failed. There are certain people who will simply be outside the

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education system when this happens, or, indeed, who will not want to go back into it. If you have had an incredibly bad educational experience and you happen to be 17 or 18 when this is offered, I suggest that that may not be the way forward. Indeed, you may not want to go back into an educational establishment.

I propose to withdraw my amendment at this stage, but I shall consider what might be done at a later stage in the Bill's proceedings. I believe that we on these Benches are bumping very hard into a matter of principle. This is probably not the first time that we have done so, but it is certainly one of the few times that we have hit hard in this respect. The idea that the issue might be dealt with somewhere else does not take away from the fact that this provision should at least be a back-stop. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Wilkins had given notice of her intention to move Amendment No. 108:

    Page 17, line 31, leave out from ("relates;") to end of line 33 and insert--

("(b) includes power to order the payment of compensation in exceptional circumstances, such as when provision for an educational need is not possible.").

The noble Baroness said: My Lords, I, too, am disappointed with the Minister's response. I should like to reserve the position of the noble Lord, Lord Ashley, on the matter. I shall not move the amendment.

[Amendment No. 108 not moved.]

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