Standing Committee B
Thursday 29 March 2001(Morning)
[Mr. Bill O'Brien in the Chair]
Education in mainstream schools of childrenwith special educational needs
Mr. Tim Boswell (Daventry): I beg to move amendment No. 4, in page 2, line 8, at end insert
`, or, if the cost is met by a local education authority or otherwise from public funds that either there is a statement in respect of the child under section 324 or the local education authority are satisfied
(i) that his interests require the necessary special education provisions to be made for him at a school which is not a maintained school, and
(ii) that it is appropriate for the child to be provided with education at that particular school.'.
I welcome you, Mr. O'Brien, and my colleagues to Committee at this early hour. We shall touch on some interesting and important issues today. The amendment is intended to obtain assurances from the Government.
I avert briefly to exchanges that took place on Tuesdaythey bear on the amendmentin response to a challenge made by the hon. Member for High Peak (Mr. Levitt) about representations that we were continuing to receive from outside bodies. He was right to say that the Special Educational Consortium did not seek further to amend the Bill. Indeed, I note that the Government did not seek to make further changes, but they have now tabled at least one amendment.
I am not sure whether the hon. Member for High Peak received a briefing from Action on Entitlement, a consortium of various disability interests, but that briefing suggests that several important issues have not yet been dealt with satisfactorily that are of concern to many organisations in the voluntary sector. I mention that because amendment No. 4 touches on one of those concerns. I shall come to the substance in a moment, but our request for assurance is not made in a destructive spirit against the general tenor of the Bill; it is made because we cannot sign it off uncritically and without considering its impact.
I ask the Parliamentary Under-Secretary of State for Education and Employment, the hon. Member for Redditch (Jacqui Smith) to reply at two levels. The first is what might be termed the legal levelthe shade of Pepper v. Hart stalks us--and the second is at the level of the Bill's operation. That will give us a flavour of what the Government and their advisers and associates see as the likely policy on special schools, so we can go from the particular to the general.
I start with the legal point. It may help that the Minister and I are not lawyers, so we do not have the sophistication expected of a lawyer--nor do we have the same price tag as a lawyer taking a case in the High Court. [Interruption.] As the hon. Lady says from a sedentary position, we give extraordinarily good value. However, I do not wish to offend any lawyers in the Committee; indeed, I should like to engage their services in order to tease out the problem.
The amendment is directed towards the drafting of proposed new section 316A of the Education Act 1996. Our earlier debates so far have been about new section 316, and the provision that states:
``Duty to educate children with special educational needs in mainstream schools''.
Proposed new section 316A is headed
``Education otherwise than in mainstream schools''.
It is an attempt to rule out barriers to education in special schools, and its first subsection states:
``Section 316 does not prevent a child from being educated in
People may decide to pay for the private education of their children, off their own bat and out of their own pocket, because they have had difficulty obtaining a statement or because they and their children would prefer special education. If so, as I construe the provision, they would not break the law and children would be adequately educated by attending non-maintained schools.
(a) an independent school which is not a mainstream school, or
(b) a school approved under section 342,
if the cost is met otherwise than by a local education authority.''
My legal expertise runs out on some issues raised. On a casual reading, the provision may be loosely construed as providing that the local authority could not pay, even though people may want it do so, because the provision applies only when someone else pays. That would rule out local education authority payment. I am aware that the matter has been considered in the other place by people who are more legally alert than we are. The Minister needs to give the Committee a clear understanding of how the provision operates.
As I understand matters, proposed new section 316A enables people to make private arrangements at their own expense, or at the expense of someone who is not the LEA, to secure a private education for their children in a special school. However, on a loose prima facie interpretation, those people could not get the LEA to pay. We have been assured that Ministers do not want to bring about such a situation, so proposed new section 316A may not mean quite what it says it means due to section 348. The amendment uses similar wording to that section, stating that
``if the cost is met by a local education authority or otherwise from public funds that either there is a statement . . . or the local education authority are satisfied . . . that . . . interests require . . . special education provisions to be made . . . at a school which is not a maintained school, and . . . that it is appropriate for the child to be provided with education at that particular school''.
Therefore, the LEA would be able to buy the right service or provision for the child. The Minister needs to assure us that section 348 bites and saves the apparent exclusion wording in proposed new section 316.
At the back of my mind are concerns expressed to us by legally sophisticated persons of some distinction. I make no claim to that status. Those people are worried that whereas the provision hangs on proposed new section 316, the assurances in section 348they are already in place and can be tied to proposed new section 316do not apply to proposed new section 316A. I need to know from the Minister that they do, and that there is no legal bar to preclude a local education authority from securing that appropriate education for a child in a non-maintained school, if that is the right thing to do.
I need reassuring that the saving section applies to both proposed new section 316 and proposed new section 316A, so that a legal minefield does not develop. We must not find ourselves saying, ``We got it right with 316, and that is okay, but now we have introduced 316A, and it is not right, and there is a problem.'' If there is a problem, it will be too late to amend it at the end of this Committee's proceedings. There is concern in the non-maintained special schools sector that we have not quite got that right, and that we have not tabled the amendments required to put it right. It is not a matter, at this stage of the argument, of Ministers' intentions. We must accept that Ministers wish to proceed on the matter with clean hands and in good faith. However, it is extremely important that we have tied it down to our satisfaction, as best we canmost of us in the Committee are not lawyers. We must ensure that the legal safeguards apply.
Dr. Evan Harris (Oxford, West and Abingdon): I follow what the hon. Gentleman is saying, and I understand his point. However, proposed new section 316A(3) states that proposed new section 316 does not affect the operation of section 348. Only proposed new section 316 could threaten what the hon. Gentleman wants, which is the provision for local authorities to fund placements in independent schools. No such guarantee is required under proposed new section 316A, because the only relevant part of that section is the exception whereby
``the cost is met otherwise than by a local education authority.''
Perhaps that is what the Minister will say. I do not understand why the hon. Gentleman cannot be reassured.
Mr. Boswell: I am grateful to the hon. Gentleman for that contribution. We are looking for a genuine reassurance from the Minister. If she can give us that assurance, we will be perfectly satisfied on the legal front. It is important that the point is tied up. Although I do not have written representations on the matter, I have been concerned that one or two lawyers of substance are still worried about it. It would be a dreadful thing, which we could not readily put right, if, in our hurry to get the Bill through Parliament, we left a loose end. That is all I want to say on the legal side, because it is for the Minister, given her authority and the advice available to her, to give us those assurances.
Not only do we seek such assurances, but it would be useful if the Minister could briefly explain how the sections work and interact to achieve what I takecertainly from what Ministers have said in the pastto be a common goal. We all realise that, in the real world, if we were not piling additional legislation on top of existing legislation, we would probably not word or structure the Bill like this. However, that is what we are doing, and we need to be absolutely certain that it works.
Having dealt with those legal concerns, I turn to what might loosely be called the real world. I would like to raise two points. First, we are concerned that, in their activities in response to the special needs of individual pupils, local education authorities may look for the cheapest rather than the most appropriate solution, to put it bluntly, and that generally, though not always, provision outside the local authority area or in the private sector will not be used if it is significantly more expensive, even if it would be better for the child.
I am sure that I am not unique among hon. Members in having been told by constituents that although they were convinced that their child would do best at a special schoolin my case it might be one in Milton Keynes, over the local education authority boundary, or in Leicestershirethe LEA would not countenance it. I am not saying that parents are always necessarily right. We had an interesting discussion in the previous sitting about how to balance professional appraisal of what is right for a child with parental opinion. That issue will never go away completely. However, we need a legally watertight means of resolving it.
I worry about such real-world issues and about what a local education authority might do if it were bent on saving money or trying to avoid its obligations to provide the best solution for a particular child. The Committee will remember that our debate on Tuesday was about the need for the child's interests to come first. An LEA such as I described might get hold of the parent, who would after all not be a legal sophisticatewe do not claim to be, and there is no reason why a parent should beto explain new section 316A(1). The authority could explain the subsection as not ruling out paying privately for independent education. However, it could also be construed as meaning that the LEA could not pay for it.
Not every parent will have time to read the provision in conjunction with section 348, and to conclude: ``Ah, everything is protected by section 348. Fancy that; the LEA can pay after all.'' I can just imagine how a county chief education officer or director of special needs might, in a letter, quote subsection (1) selectively, to shut out parents who might have an entitlement under the provisions taken together. I cannot prove that that will happen, but I predict that it probably will. Given that that remains a possibility, and while we need a purely legal interpretation from the Minister, we need to make it clearly understood that LEAs are entitled to pay for the provision in question. The wording should be clear enough to prevent LEAs from fobbing people off by claiming that it would be outside their powers.
It would also be helpful if Ministers could flesh out their account of how finding the most appropriate education for a child should be approached. Some concern remains in the independent or non-maintained special schools sector about whether the Bill will crowd them out. Enough has been said, I think, to establish that that is not Ministers' intention.
In our discussion of new section 316, Ministers said that the Bill would not disturb the balance of provision between mainstream and special education. I suspect that Ministers will also say that this particular chunknew section 316Awill not disturb the balance in special education between maintained and non-maintained provision. It is important that we receive assurances on that from the Minister.
A briefing from the National Association for Independent and Non-Maintained Special Schools also expresses concern about that. It says:
``We support the general thrust of the Bill . . . but both the Bill and the revised SEN Code of Practice discriminate against the voluntary and independent sectors in important ways. Nor does the Bill pay sufficient attention to the wishes of the child or of informed opinion acting on behalf of the child.''
I make no attempt to quote selectively, or to accept every word of the briefing, which goes on to say that
``NASS fully supports the drive towards an inclusive society.''
It then refers to an inclusive education system with a continuum of provision. That organisation is not arguing that every child with special needs, or every statemented child, should be educated in a special school. It is arguing for a balance of provision, both between special and mainstream education and, within the special education sector, between maintained and non-maintained schools. Two types of balance must be achieved.
As the Minister will remember, there was a certain amount of discussion in a previous sitting about the particular concerns of the Royal School for Deaf Children in Margate, which, if not a flagship school, is one of the most appreciated and respected private sector or non-maintained providers of special education. It felt somewhat left out of the operation of regional partnerships. I quoted a section of the letter from that organisation to my hon. Friend the Member for North Thanet (Mr. Gale). It wanted the east of England group to link with the non-maintained sector. It says that the paper that it has received
``does not provide any indication or evidence of collaborative or consultative and open partnerships.''
I do not share all the opinions expressed by the school, but it is important that the Committee should be disabused of certain views. It goes on to say:
``Does this imply that the DfEE has a hidden agenda in supporting a reduction in Non-Maintained provision and that it does not regard collaboration and consultation as essential factors in the decision making process? This would appear to be in contradiction to the DfEE's expressed views about openness, collaboration and consultation and the high quality special provision which is necessary for some pupils/students with low incidence special needs''
Therefore, there is a question markI put it no higherover the approach of the non-maintained sector. I emphasise to the Minister that there is no theology in this. This is not an attempt to get the private sector to take over special education, but to protect the position of reputable, often outstanding, non-maintained provision as part of that sector. Almost all of us have had the benefit of visiting schools or other establishments in the non-maintained sector, often supported and organised by specialist organisations.