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Baroness Blackstone moved Amendment No. 24:



(a) an accessibility plan;
(b) further such plans at such times as may be prescribed.
( ) An accessibility plan is a plan for, over a prescribed period--
(a) increasing the extent to which disabled pupils can participate in the school's curriculum;
(b) improving the physical environment of the school for the purpose of increasing the extent to which disabled pupils are able to take advantage of education and associated services provided or offered by the school; and
(c) improving the delivery to disabled pupils--
(i) within a reasonable time, and
(ii) in ways which are determined after taking account of their disabilities and any preferences expressed by them or their parents,
of information which is provided in writing for pupils who are not disabled.
( ) An accessibility plan must be in writing.").

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Clause 18 [Jurisdiction and powers of the Tribunal]:

Lord Addington moved Amendment No. 26:


    Page 17, line 22, leave out from ("relates;") to end of line 24 and insert--


("(b) includes the ability to order appropriate compensation in relation to the scale and type of discrimination proven."").

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The noble Lord said: My Lords, I can be brief. The idea was put forward that the ultimate form of compensation should not be allowed to those who are discriminated against within the school system. I do not agree.

When looking at the amendments on the Marshalled List I feel that Amendment No. 27 is slightly more appropriate to this point than my Amendment No. 26. I shall therefore give the noble Lord, Lord Ashley, my full support and curtail my remarks at this time. I beg to move.

7 p.m.

Lord Ashley of Stoke: My Lords, I am grateful for the comment made by the noble Lord, Lord Addington, who has been helpful on this issue. Perhaps I may remind the House that the original amendment was for financial compensation in addition to the educational remedy. Because I always try to oblige my noble friend the Minister, and lean over backwards to oblige her, I have narrowed it down so that now it merely asks for financial compensation to be paid in exceptional circumstances; in other words, when there is no educational remedy available.

My noble friend's response on Report was uncharacteristically feeble. I was astonished that she put it forward. I am hoping for a different response this evening. I am grateful to my noble friend Lady Wilkins for moving my amendment, as I was unwell at that time. However, I am not grateful to my noble friend the Minister, who exaggerated some points and ignored others. She said that allowing for financial compensation would fatally undermine the ability of the tribunal to continue successfully. That is a tremendous charge. To fatally undermine a tribunal means to destroy it. That is what my noble friend claimed on Report.

Here we have a case where the tribunal awards a few thousand pounds to a disabled child because it suffered discrimination. The self-destruct button is pressed and the tribunal goes up in flames because it is fatally undermined, according to my noble friend. That is the end of the tribunal system. Does my noble friend really believe that payments or financial compensation in exceptional circumstances, a limited number, would fatally undermine the tribunal? I do not believe that. If she does, she should tell us what she thinks about the other tribunals which give awards without fatal consequences.

She put forward another argument on Report, in that there would be a tendency to focus on the financial remedy, rather than the educational one. But in virtually all the cases, it is only when the educational remedy is not possible that financial compensation will be considered. So that point has no real substance. Surely, the focus should be on the discrimination or the alleged discrimination. If that is proved, it is up to the tribunal to decide the appropriate remedy. If my noble friend really envisages parents rejecting an educational remedy and wanting cash, I put it to her that it would be bizarre for them to debate the type of remedy that they want. That is a matter entirely for the tribunal.

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As to my noble friend ignoring some of the points, nowhere has she responded to repeated questions from noble Lords as to why there should be different policies for students and schoolchildren. I shall listen eagerly tonight in case she has simply forgotten those questions. But she also ignored the question of human rights. She claims that there would be few cases where the educational remedy is not possible for individual children. So, my noble friend acknowledges that there will be some cases. That is an important admission. We have been saying all along that there will be a number of cases where it is not possible to prescribe the educational remedy. Although that will concern only a few children, what about their human rights? Is my noble friend seriously suggesting that because there are only a few of them, we flout their human rights? If she is on that tack, I am afraid that she is sadly mistaken.

It is probable that there will be human rights cases concerning some of those children. If a case is brought in future, as it will be, and is lost by the Government, what will my noble friend do then? She is ignoring those questions but she cannot ignore a judge's ruling. I think that new legislation will be urgently required when that human rights decision is made because the current wording is specific. That leaves the Government up a gum tree. If they do not accept the amendment, they will be in trouble in future. As usual, I am trying to help my noble friend and save a lot of trouble. I hope that she appreciates that.

I apologise for speaking for so long. My final point is made in the interests of flexibility. I suggest that the ability to pay financial compensation in the few cases I mention should be a matter for regulation and not on the face of the Bill. That degree of flexibility would help the Government and the children. I therefore commend the amendment.

Baroness Wilkins: My Lords, my noble friend Lord Ashley of Stoke put the argument comprehensively. I warmly support the amendment.

Baroness Sharp of Guildford: My Lords, I rise to speak to Amendment No. 28, which is a slightly different amendment. I do so on behalf of the Special Educational Consortium, which put it forward. On the last occasion the noble Baroness, Lady Wilkins, spoke to the amendment. However, on Tuesday afternoon when time was getting late she could not be found and I was asked to table it at the behest of the SEC.

The aim of tabling the amendment again is to try to tease out further the response given by the Minister on Report. The remedy available under the SEN and Disability Rights Tribunal could include taking account of personal hurt or experiences denied to a child who has been discriminated against or deciding on any changes that may be needed in the accessibility strategies and plans. The purpose of the amendment is to ensure that the discrimination does not happen again.

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On Report, the Minister gave further reassurances that although the SEN and Disability Rights Tribunal had no power to order alterations to accessibility strategies and plans, the Secretary of State or the National Assembly for Wales would have the power to call in an LEA's strategy or a school's plan and ultimately direct it to take the necessary action if it were acting unreasonably and had not carried out its duties. If necessary, it would be able to apply to the court for a mandatory order to enforce its directions. She also made it clear that Ofsted and the DRC would have a role in that.

The Special Educational Consortium welcomed the reassurances but was concerned as to how the Secretary of State would come to hear of the inadequacies in the plans and strategies that would rectify individual instances of unlawful discrimination. Would it be left to individual parents to write to the Secretary of State or to the National Assembly following a successful appeal to the SEN and Disability Tribunal?

How would such a referral from the tribunal be made where it considers that there is an instance of unlawful discrimination? Would that be a referral to the Secretary of State? Would the Secretary of State refer it on to Ofsted and the Disability Rights Commission? In sum, how would the communication work between the different parties with responsibility and oversight for those actions? We would be grateful for further clarification.

The Earl of Mar and Kellie: My Lords, perhaps I may briefly return to the subject of compensation. I need to persist in my fear that one exceptional circumstance can only possibly be dealt with financially. I refer to the situation in which a child has already been removed from a school. In that circumstance there is no educational remedy. I believe that a financial remedy is probably the only one available.

Baroness Blackstone: My Lords, I am afraid that I shall disappoint my noble friend Lord Ashley of Stoke. We still believe that practical and educational remedies are the best form of redress for disability discrimination in schools. School-based education is the bedrock of what we do in later life, so it is vital that any educational problems are put right. Disabled pupils in schools are not being offered a second-best form of redress, and they are not being treated worse than disabled pupils and students in further, higher or adult education; they are just being treated differently.

My noble friend asked for the reasons for that different treatment. We have taken an institutional approach to disability duties. The nature of the relationship between a pupil and his or her school and that of a student and his or her college are rather different. Schools have a SEN framework that provides for special educational needs. Colleges have no such formal framework. Therefore, the disability provisions must provide relatively greater protection. There is no SEN tribunal operating as far as the post-school sector is concerned.

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As I explained on Report, we believe that allowing for the possibility of financial compensation, even in exceptional circumstances, would undermine the ability of the tribunal to operate as successfully in disability cases as it has done in SEN cases. My noble friend Lord Ashley will perhaps note that I am not using the word "fatally" this time; I am simply saying that it would undermine it. Perhaps I went a little too far on the previous occasion. 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 to the child's educational experience.

Where discrimination occurs in a school setting, we agree that there must be an appropriate remedy which takes account of the discriminatory behaviour. But there is another consideration--how best to ensure that people will seek that remedy. The importance of school education is such that the forum in which the remedy is to be sought must be one in which parents feel empowered to exercise their rights to challenge discrimination. Discrimination is destructive whenever it happens, but the repercussions of discrimination suffered whilst at school may last a lifetime. We must ensure that parents feel able to seek a remedy for their child. That is a necessary precursor to obtaining the remedy.

As I have said before, we want to make sure that the informality and user-friendliness of the tribunal is preserved. Giving the tribunal the power to award any kind of financial compensation would threaten to overturn the concept of the tribunal being user-friendly and being informal. Educational remedies will ensure that the money spent by LEAs and schools will go to benefit the child in the best possible way by directly improving his or her educational experience.

There will be very few cases where no educational remedy for the individual child is possible. But even in these cases, the tribunal can acknowledge their experience by making a declaration that unlawful discrimination has occurred--I hope that responds to the noble Earl--and direct an apology and a change to policies, practices and procedures to ensure that the school or the LEA does not discriminate in that way again. Children who have been discriminated against have said to me and to others that they want two things: first, an apology, and the Bill allows for that; and, secondly, they are concerned that the discrimination should not happen again. The Bill also allows for that.

I turn to Amendment No. 28. The first two factors that the amendment seeks to insert are matters for which the Bill already provides. 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. The tribunal operates in a child-centred and informal way, and asking it to review the operation of a strategic duty, such as the duty to plan, would sit badly with this.

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There are three mechanisms that relate either to the enforcement or to the monitoring of the planning duty. I hope this answers the question of the noble Baroness. First, 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 noble Baroness wondered who might refer cases to the Secretary of State. Parents and others can look at the plan and complain directly to the Secretary of State. The DRC could decide to carry out an investigation. Plans will be monitored by the department. Therefore, the Secretary of State's attention could also be drawn to deficient plans by officials.

Secondly, the Ofsted and other relevant inspection frameworks for LEAs and schools will form another layer of monitoring the duty.

Thirdly, the DRC will have a role in monitoring the duty too. As I have just mentioned, it could, if it thought fit, conduct a general investigation into the operation of the duty which could lead to recommendations for change.

I hope that what I have said will persuade the noble Lord to withdraw his amendment.


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