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Baroness Wilkins moved Amendment No. 109:

("( ) may in particular take account of--
(i) any personal hurt experienced by the person concerned;
(ii) any experience denied the person concerned because of unlawful discrimination; and
(iii) any necessary changes to accessibility strategies and plans to ensure that the unlawful discrimination does not happen again;").

The noble Baroness said: My Lords, this is the same amendment to which I spoke in Committee. It is designed to probe the extent of educational remedy in cases of discrimination. I speak to the amendment again in the hope of probing a little further. The amendment seeks to determine whether changes could be made to accessibility strategies and plans in order to ensure that,

    "unlawful discrimination does not happen again".

I am grateful to my noble friend Lord Davies for the reassurances that he gave in Committee in regard to personal hurt, and the experiences denied to the child. In particular he made clear that a number of remedies might be included such as making up for lost tuition and giving a formal apology. However, the Minister was not forthcoming on the third and most significant issue; that is, how to ensure that the discrimination does not happen again. In his reply he rejected this part of the amendment on the grounds that accessibility

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strategies and plans are the responsibility of the Secretary of State, and so the SEN and disability tribunal would not have powers in relation to them. Furthermore, he argued that there were pragmatic grounds because it would add to the length, formality and complexity of the tribunal hearings.

I would be most grateful if my noble friend the Minister would reconsider. Surely it is possible to find a mechanism to make sure that unlawful discrimination cannot be repeated. If the SEN and Disability Rights Tribunal cannot order a change to accessibility plans and strategies to ensure that unlawful discrimination does not happen again, then who can? Could the tribunal refer the case to Ofsted, who will be inspecting the plans? And if so, could Ofsted do anything more than comment critically?

As the Minister has pointed out, the Secretary of State has responsibility for these strategies and plans. In that case can he order them to be redrawn if it is shown that the plan or strategy will continue to discriminate? Lastly, could the Minister indicate whether the powers of the Disability Rights Commission would enable it to investigate in such situations? I hope that my noble friend the Minister will be able to add to the reassurance which he has already given by pointing to a mechanism to ensure that unlawful discrimination will not be repeated. I beg to move.

Lord Rix: My Lords, I add my voice to that of the noble Baroness, Lady Wilkins. There has to be some effective form of redress.

Baroness Blackstone: My Lords, the Bill gives the tribunal wide powers to order appropriate remedies. When we discussed the amendment of my noble friend Lady Wilkins in Committee, I offered reassurance that the first two factors which the amendment seeks to insert are things which the Bill already provides for.

As I explained during Committee, the third factor is different. The tribunal will not have the power to order LEAs or schools to make changes to their strategies and plans. Enforcement of the duty to plan will, in the first instance, be by the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales. The Secretary of State or the National Assembly will have the power to call in an LEA's strategy or a school's plan and will ultimately direct it to take the necessary action if it is acting unreasonably or has not carried out its duties. If necessary, they will be able to apply to the court for a mandatory order to enforce their directions.

The tribunal operates in a very child-centred and relatively informal way and asking it to review the operation of a strategic duty, such as the duty to plan, would sit badly with this. However, there are other strands to the monitoring and enforcement of the planning duty which I did not mention in Committee. I can confirm that Ofsted is one strand and the DRC is another. The commission will have a role in monitoring the operation of the planning duty. It could, if it thought fit, conduct a general investigation into the operation of this duty which could lead to

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recommendations for change. So, for example, the DRC could look at a range of LEA plans and offer recommendations as to how LEAs might change them. The DRC is under a duty to keep the working of the entire DDA under review and can, of its own volition, give advice and make recommendations on its operation to Ministers, government agencies and public authorities. I very much hope that my explanation will enable my noble friend to withdraw the amendment.

Baroness Wilkins: My Lords, I am most grateful to the Minister for filling out her response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Procedure]:

[Amendments Nos. 109A to 113 not moved.]

Clause 21 [Roles of the Secretary of State and the National Assembly]:

2.45 a.m.

Lord Lucas moved Amendment No. 114:

    Page 20, line 44, leave out from ("in") to ("the") in line 45.

The noble Lord said: My Lords, the amendment deletes the words at the bottom of page 20 of the Bill,

    "in the exercise of a power conferred ... under section 28D or 28E".

No powers are conferred under these sections. The words are entirely unnecessary. I beg to move.

Lord Davies of Oldham: My Lords, perhaps I may express my enthusiasm at seeing the noble Lord, Lord Lucas, in his place. I should have felt deprived if I could not take this moment to congratulate him on his amendment. We do not accept it entirely because there is a defect. But we accept the amendment entirely in principle and will bring forward an amendment at Third Reading to follow exactly what he says.

Lord Lucas: My Lords, I feel quite chuffed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 115:

    Page 21, line 24, leave out ("appear to it to be expedient") and insert ("are reasonable in all the circumstances").

The noble Lord said: My Lords, I hope for similar luck on this amendment but it is perhaps a more difficult question.

The noble Baroness was kind enough to write to me after our discussions in Committee on this part of the Bill. The amendment concerns the way in which the Minister, in the case of England, has the right to enforce on a school the performance of its obligations under the need to plan for provision for people with disabilities. I understand that effectively at the end of the day the Minister can impose her own will and all that is left for the school is judicial review. For independent schools in particular substantial liabilities could be imposed. A lot of building work may be required. I believe that the provision should be more

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equitable. Rather than appearing expedient to the Minister, the noble Baroness should have to show that what she demands of the school is reasonable in all the circumstances. That would be a better balance. The school could effectively challenge the Minister's judgment on a more equal footing if that were seen to be the correct thing to do.

Schools do not often sue. It costs them a lot of money and they do not have it to spare. It would have to be a pretty tough ministerial demand to justify a school going to court over it. However, if a school felt that it was placed in that position by the Minister, then it should have a more equal playing field than is provided by a judicial review style of combat. I beg to move.

Lord Davies of Oldham: My Lords, I cannot be quite so positive on this amendment. The noble Lord will recognise that we want the planning duty to make a difference. To do that, it needs to be properly enforced. But we do not envisage that the Secretary of State or the National Assembly for Wales will use their powers to direct in a frivolous way. They will not make directions without allowing the school to make representations first. When a school has not complied with its duties, or has acted unreasonably in complying with them, it is right that an appropriate direction can be issued.

I merely add that the wording replicates that used in the Education Act 1996 and therefore provides consistency.

Lord Lucas: My Lords, on that last point, I suspect that I shall have to give in. I am afraid that I had failed to spot that this was the old wording that we had lived under for a while. I thank the Minister for pointing it out. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Enforcement procedure: Scotland]:

[Amendments Nos. 116 to 118 not moved.]

Clause 25 [Discrimination against disabled students and prospective students]:

[Amendments Nos. 119 and 120 not moved.]

Clause 26 [Meaning of "discrimination"]:

[Amendment No. 121 not moved.]

Baroness Darcy de Knayth moved Amendment No. 122:

    Page 27, leave out lines 10 to 14.

The noble Baroness said: My Lords, this is a probing amendment on an issue that concerns SKILL--the National Bureau for Students with Disabilities--of which I am the president. The issue has cropped up since the Committee stage. The amendment would remove the defence of ignorance of an individual's disability when treating disabled people less favourably. I shall try to explain coherently.

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As we know, the Bill provides a defence for discrimination when a responsible body or institution does not know and could not reasonably have known that an individual was disabled. It is important that that defence is available to protect institutions from being found in breach of the law when their actions arise out of a genuine lack of knowledge.

Under Clause 26(3), an institution's failure to make reasonable adjustments is defensible if it could not have known that an individual was disabled and if the failure to make that adjustment was due to that knowledge. We all agree on that. However, the defence in Clause 26(4) to justify less favourable treatment is much more comprehensive than that provided for the failure to make reasonable adjustments. It provides a blanket justification for less favourable treatment if the institution can prove that it did not know and could not reasonably have known that the individual was disabled. It does not require the less favourable treatment to relate in any way to that knowledge.

That means that it would be possible for an institution to act in a discriminatory fashion as long as it could argue successfully that it could not know about the individual's disabilities. That is particularly dangerous in relation to potential students. For example, an institution recently responded to a request for information from SKILL by saying that it was not in a position to accept disabled students. If that information were made public, it might well act as a discouragement to an individual seeking admission. That potential student might feel with some justification that the institution was acting in a discriminatory fashion. However, because the potential student is unknown to the institution and therefore his disability could not be known, the institution could claim a defence.

I stress that this is a probing amendment and I very much look forward to the Minister's reply, which I hope will be more understandable than my comments. I beg to move.

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