|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Davies of Oldham: My Lords, I shall reply to the points made by the noble Baroness, Lady Blatch. However, following the comments of the noble Lord, Lord Baker, it is an interesting constitutional point whether one can amend a ministerial letter to change the law. He seemed to be doing that in part of his
We continue to view the amendments as unnecessary. Clause 9 relieves LEAs of the duty to name a school in a statement only if parents have made suitable alternative arrangements. The intention is to make available to children who need them places that LEAs might otherwise have to hold open indefinitely, even though the children concerned may never take them up. As I have explained in previous debates, nothing in Clause 9 changes the fact that if parents cease to make suitable alternative arrangements for their children, the LEA will continue to be responsible for arranging special educational provision for the child.
Nothing in the clause is intended to reduce the availability of maintained sector places for children with SEN. The noble Baroness has repeated the argument that she made on Report that parents may be in a catch-22 situation.
Lord Davies of Oldham: My Lords, I withdraw the word, "indefinitely", but for a period of time the place would not be available to another child who might need it. The burden of the case that we have presented in Committee and on Report is that local authorities are under an obligation to use their resources efficiently. Part of that must be to make available places for children with those needs and to ensure that, as far as possible, places are not kept open unnecessarily, although I accept the point that the noble Baroness has just made about the change from her previous suggestion.
If parents disagree with the provision or school proposed by the LEA, they will make either stopgap arrangements or alternative suitable arrangements. Case law indicates that suitable arrangements must be intended to continue and be capable of continuing for a reasonable period. LEAs will be able to rely on the provision in the clause only if parents have made suitable arrangements. Otherwise the arrangements will be considered stopgap arrangements and the responsibility will remain on the local authority.
If parents in that situation disagree with the provision or school proposed by the LEA and place their child in another school--as the noble Baroness said, it might be an independent school at their own cost--and then appeal to the tribunal to try to have that school named, they may be worried that any school place proposed by the LEA would be lost. However, if the tribunal agrees with the parents' choice of school, the LEA will be obliged to include that school formally in the statement. If the parents lose, the tribunal will be able to order the name of a different school proposed by the LEA or parent, including the original school, to be included in the statement. The original school may not be available, but requiring an LEA not to fill that place just in case, even for a short period--if the case went to the tribunal it would be a longer period--would be unfair to other parents who might want and need the place for their child.
We do not accept that the amendments are necessary or desirable. As we have said before, the LEA will be under a statutory duty to make suitable provision in all cases if the parents are not making suitable arrangements of their own. By definition, stopgap arrangements do not count as suitable arrangements.
Baroness Blatch: My Lords, again I am grateful to the Minister for his answer. We shall have to agree to disagree about this issue. I have two points. First, the department has been incredibly good about answering letters since Report. I record my thanks for that. However, I have had a request in for 18 months for information about education action zones. I am still waiting for the evaluation report.
Secondly, like my noble friend Lord Baker, I am pleased that there is something on the record about resources that gives some reassurance. However, my noble friend had a Written Question printed in yesterday's Hansard asking for an estimate of the number of extra teachers and teacher assistants trained in special educational needs skills that will be needed to implement the Bill. There is a very long Answer, but it does not give the number of teachers that will be needed, or even an estimate. That may well link with the fact that a parent could be denied a place in a mainstream school simply because the financial appraisal of the Bill says that no extra staff will be required. I beg leave to withdraw the amendment.
The noble Lord said: My Lords, we dealt with the same amendment on Report, when I thought that the Government were simply being lazy. Since then they have done the same again. The grammatical construction that the amendment refers to should not
In statute, the convention has largely been to refer to a subsection by name. Indeed, in Clause 13, subsection (1) is referred to on two subsequent occasions. On both occasions, the word "that" could be substituted and, with much thought, someone could work out that "that" meant subsection (1). If someone applies a lot of thought and care to the matter, no exactness will be lost, but it causes people to stop and think about why the word "that" is being used rather than "subsection (1)", which is the way in which statutes are usually written.
We employ a rather unusual version of English in statute. There may be something to be said for trying to write statutes in more ordinary English, but the Government have randomly decided that "subsection (1)" should be substituted by "that" if it appears at the beginning of subsection (2)--and only then--and that otherwise it is called subsection (1). That merely causes confusion. If the word "that" means "subsection (1)" and "subsection (1)" is the usual way in which such a reference would be made in statute, we should call it subsection (1) so that everyone knows that that is what is meant. Using the word "That", as is proposed, merely makes one pause and wonder whether it could mean anything else. After much thought, one decides that it must mean subsection (1). However, everyone could have been saved five minutes' work if the words "Subsection (1)" had been used in the first place. I beg to move.
Baroness Blackstone: My Lords, I am rather surprised that the noble Lord has chosen to bring back this amendment yet again at Third Reading. As I explained on Report, "That" in new Section 28C(2) under Clause 13 refers to the duty on schools to take reasonable steps to ensure that disabled pupils are not placed at a substantial disadvantage. That is perfectly clear.
I could take up the time of the House by giving other examples of where this drafting style has been used in recent legislation, but I shall not do so. I hope that the noble Lord will withdraw his amendment.
Lord Lucas: My Lords, I shall withdraw it, but I shall continue to protest whenever I notice that that style of drafting has been used. I hope that at some stage, in order to save time in the House, if nothing else, the Government will relent. I beg leave to withdraw the amendment.
The noble Baroness said: My Lords, in moving Amendment No. 18, I shall speak also to Amendment No. 35. These two amendments relate to the reasonable steps that need to be taken either by a school or, in relation to Amendment No. 35, by a further or higher education institution in order to comply with their obligations under Part II of the Bill.
We argued this issue both in Committee and on Report, and I do not want to repeat the arguments that I made then. However, I shall summarise them briefly. First, I have argued previously that it is unnecessary to have on the face of the Bill this detailed listing of the factors which underlie what "reasonable steps" will be. I have argued that the wording, and in particular that in subsection (4)(a), which relates to Amendment No. 19 tabled by the noble Lord, Lord Lucas, is objectionable. In the words of the noble Lord, Lord Rix, in Committee, it provides, a "cop out" for both schools and further education institutions in relation to their obligations here.
On Report, the Minister responded to my request by quoting a letter from the noble Baroness, Lady Warwick, which dealt with the position of universities and encouraged her to keep the wording on the face of the Bill. My response to that was, "Well, she would do that, wouldn't she?". Coming, as I do, from the university sector, I know how poorly universities are placed in relation to disability. They need to do a great deal and I do not believe that they should be let off the hook in terms of those obligations. I fear that subsection (4)(a) does let them off the hook. Similarly, we argue that subsection (4)(g) is unnecessary because it duplicates the caveat which already appears in Clause 1(3)(b).
Finally, we argue that, in so far as it is necessary to spell out these matters, it is much better that they are put into the code of practice. That is what these two amendments seek to achieve. That is done in the case of the SEN part of the Bill. I am delighted that the amendment that we put forward in that respect, which suggested that there should be explicit mention of the guidance, is now incorporated into the Bill.
The Minister said that one reason for wanting the guidance to appear at that stage and for rejecting the amendments that we put forward in Committee, where there might be an illustration of what "reasonable steps" were, was that any illustration would become out of date and that one needed flexibility. Again, we argue that putting the wording into the code of practice provides a degree of flexibility. Therefore, I repeat that this detailed guidance should not be on the face of the Bill but should appear in the code of practice. I beg to move.
Back to Table of Contents
Lords Hansard Home Page