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Q 59Mr. Graham Stuart (Beverley and Holderness) (Con): The National Autistic Society and others have suggested that among home-educated children, there will probably be a higher number of autistic children, yet the impact assessment for the Bill makes no mention of any negative impact on autistic children of visits by local authority inspectors coming to see whether children need to be returned to school. How bad an error do you think that is?
John Friel: It is a case-by-case problem. It would be, arguably, disability discrimination to put somebody under that stress. It is a difficult situation. The criteria in the Bill for assessing provision at home omit specific reference to special educational needs and provision, and in relation to the test for harm, you could be harming a child without delivering provision to them, so that is not at all clear. The problem with the whole proposal is that it is a generic proposal, not a specific proposal. Section 19, which has to do with duties relating to home tuition imposed on local authorities, includes a duty to provide for the special educational needs, so the National Autistic Society’s point would be perhaps cleared up to some degree if the inspectors and the inspectorate provisions have to have regard to that, but also the test in the Act itself in the schedule—it is quite curious to have a whole Act in a schedule—ought to have some regard to whether the parents are, within the home education provision, making provision for the special educational needs of the child.
I think there is a difference, as there is a difference between being disabled under the Disability Discrimination Act and having special educational needs. Most children with a disability do have special needs, but not all. There is a need to look at those sections as well, or those parts of schedule 1, and tighten them up on those points.
Q 60Mr. Stuart: The impact assessment says that it is reasonable to assume that a child with SEN will often warrant more in-year monitoring. Could you find any evidence in the impact assessment for any funding or particular efforts to ensure a training package suitable for local inspectors to be able to look after the interests of autistic children when visiting?
John Friel: The short answer to that is that at the moment, I think, the funding is there, but there is nothing specific offering it. This does require quite a considerable change in looking at home education, which is not my primary interest, as you can gather, but those provisions ought to take account of special needs in order to take account of those who require particular care and attention to be paid to them.
Q 61Mr. Stuart: All education and child-based legislation for the last number of decades has made paramount the interests of the child.
John Friel: Not in education they haven’t. The statutory provisions do not do so, and the court decisions at the moment roundly challenge that. The best you will get, I think, is section 13 of the 2002 Act, which is to reach the child’s potential. I may be wrong on the section, but I think you will find I am right on the statutory provision. There is no legal consideration of what that means, but there is a difference between the Children Act requirement to act in the best interests of the child and the Education Act requirements, which are to provide education suitable to age, aptitude and ability and to deliver it with the efficient use of resources. Currently, it is section 9 of the Education Act 1996; previously, it was section 76 of the Education Act 1944, and that is a reservation—
4.44 pm
Sitting suspended for a Division in the House.
4.59 pm
On resuming—
The Chairman: Our witness was interrupted by the Division bell, so I wonder if he can remember, more or less, where he was.
John Friel: I think that you were asking about the schedule 1 amendments and whether there was an overarching duty and a test under the Children Act.
Mr. Stuart: Or indeed whether there should be.
John Friel: Or whether there should be. Well, I have strongly favoured the same test in relation to the child’s welfare as education. The limitation on this goes back to the original European convention on human rights, when the same limitation was put on. Regarding the current rider on section 9 of the Education Act 1996, about the efficient use of resources, the House of Lords has said that that means that budget is not relevant, but if you can do it cheaper and effectively you can do it that way, whereas if it costs a fortune the budget does not count. That is a case called T v. E Sussex, where Lord Wilberforce gave the judgment.
However, there are very cases where budget does not count in reality and it would help to look at the best interests or the welfare of a child as a uniform test. All Departments are supposed to be joined-up in decision-making processes now and that would be helpful.
There is not an overarching, individually enforceable right. There is a target duty under the Education Acts and that has been held by the House of Lords in GM v. Barnet quite recently to be a target duty under the Children Act, so there is no particular difference. It is only when you get child James with no school that it becomes a duty to do something about it. So the duty becomes individually enforceable and there are a large number of statutory provisions that can only be looked at when you get a crisis, if you like.
Q 62Mr. Stuart: I apologise for interrupting. Do you find it odd that not only is there no statutory duty on local authorities, for instance in the home education provisions or in the application of school attendance orders, to consider the best interests of the child but there is a further problem specifically in relation to autistic children? We have already established that there will be a larger number than average of autistic children in the home-educated community. There may be an autistic child whose parents are providing exemplary, individualised home education who fail to register with the local authority. Then, under the terms of this Bill, the local authority is bound to impose a school attendance order and is specifically barred from considering the quality of the education provided. Do you find that odd?
John Friel: The answer to that is yes, but the monitoring provisions are also difficult. If a child with autistic spectrum disorder is normally being educated at home, they have not been able to cope with a mainstream environment or a school environment. There may have to be compromises made to educate and develop that child. That means that, for example, if a child with ASD requires a speech therapy intervention, because there is a language disorder and there is quite a lot of research that says many children with ASD have language disorders, new section 19E(2)(b) of the Education Act 1996 would prevent approval of the education.
So I think that the provisions are far too tightly framed for a home education situation. As you have already mentioned to us, there is also the fact that the officer must hold a meeting with the child. I have knowledge of many cases where that is simply not possible due to stress and anxiety.
Therefore the provisions need to be looked at, particularly in the light of the interests of the ASD child. However, there are many other children with mental health disorders that are not classifiable as ASD. Also, some children at the age of 16 may still have such severe needs that they may not be able to communicate in an effective manner for an assessment. So this really does not take into account the sophisticated investigation and methodology required to look at these issues.
The Chairman: We have only 12 minutes left and a number of colleagues want to ask questions, so I would be grateful if our witnesses could try to give quite short answers.
Q 63Caroline Flint (Don Valley) (Lab): Regarding the legislation that is already on the statute books and the proposals that we are discussing today, particularly the proposal for a right of appeal and the proposal that the Ofsted inspection should incorporate an assessment of special educational needs provision, how well does existing legislation and prospective legislation work? I ask that because I have often found that there is a mixed bag in terms of support for parents whose children have disabilities or SEN. That is partly because the capacity and understanding of the range of people that they deal with, whether in school or through the local authority, can vary enormously, given the wide range of different needs that often have to be addressed.
So my worry about more legislation is always whether there is the capacity to interpret that legislation and to look for specialist advice and support, before delivering on the ground. That goes back to your point about outcomes and statements. It seems that that issue is discussed less than all the rigid legislation and technical processes that we tend to like dreaming up.
Q 64Caroline Flint: Of course, Ofsted will have a larger role in terms of inspection. What about the capacity of the inspectors to be able to provide a thorough overview or seek support where they need additional support?
Brian Lamb: If you had asked that about a year ago, I would say they did not have that capacity, but I am delighted to say that over the summer—I believe there will be more—Ofsted has been training Her Majesty’s inspectorate and it is going to move out to the rest of the inspectors. That training is happening now. I believe that as a result of the actions it has taken, we may well have the level of expertise we need to do that.
Q 65Mr. Edward Timpson (Crewe and Nantwich) (Con): One of the other provisions in the Bill is for a school report card. How helpful will that be to parents who have children with special educational needs? Do you think there should be a specific provision in the report card to deal with that issue?
Brian Lamb: To answer the second part of your question first, if there are specific provisions within the report card where we can get a much better measure of the success of schools around SEN—moving away from what has been at times a quite crude interpretation of school league tables; it has often meant schools have not wanted to address the SEN issue because they then get too good a reputation for it and get too many children with SEN; we can get a very balanced score card, to use the jargon again, across a number of measures—then the school report card is going to be incredibly helpful. One of the major things that parents kept telling us through the inquiry was the need to have better information about how their schools are performing against SEN. It is very difficult for parents to find out. If we get it right, it will be incredibly helpful.
Q 66Tim Loughton: Clause 8 deals with the rights of appeal to the tribunal. Do you think the tribunal system works well at the moment? Is it sufficiently well informed and independent enough? Do you think more could be done along the lines of some of the Balchin commission proposals, for example, to use a mediation process, which means that the tribunal would very much be a last resort rather than an instant referral, which many parents have to use?
John Friel: The tribunal works well when it works, putting it crudely. The current system where attempts are made at mediation is wholly inefficient and does not work at all. It is not independent and parental groups have no confidence in it. Although the mediator has tried their best in mediations that I have seen, they have not shown a degree of independence or clear thought, so I think there is a need for a pre-appeal structure, or a structure within the appeal to offer clear mediation, and this particular system calls out for it. Mediation can be effective if it is independent, informed and able to make firm decisions. As the current system stands, the tribunal is accessible to those who can get the assistance to access it, or who get legal help or are determined to access it. Those who act for themselves find it extremely confusing, and the current reforms are very anti-parents and anti-individual. I strongly disagree with the Lamb inquiry’s outcome on that. If you look at the evidential base on that, there is one area where Mr. Lamb, his colleagues and I and many others in the field—virtually everyone in the field—would strongly disagree. The current system has become far too complicated for a parent to operate and is not parent friendly. A mediation system that is effective is urgently needed.
Brian Lamb: Very briefly, if I could just come in on that, I certainly agree with Mr. Friel’s concerns about mediation as we saw it, which does not mean that mediation cannot work, but I did not see, on the whole, very good mediation schemes, although there are one or two monitoring areas.
In relation to the function of the tribunal, the evidence we saw—from the tribunal and from talking to parents—was that the pre-tribunal, telephone inquiry system was helping and reducing the number of cases that had to go to tribunal. I agree with Mr. Friel that the tribunal system has now become immensely complex and it is not easy to go there, even for well-informed middle-class parents, unless they are legally supported, which is why I recommended that we look again at the exceptional cases scheme, which helps parents who qualify for legal aid to go there. At the moment that is not working well and I would like to see more support for parents before and at tribunal. Certainly the early feedback on the reforms to the tribunal system was that it was functioning better.
Q 67Mrs. Cryer: Do you think that the new Bill has anything that may help a situation that I found one of my constituents in quite a few years ago? The difficulty was physical: a young boy, 13 at the time I think, had a growth deficiency. Part of the treatment was to extend the length of his legs by about 3 inches —a very radical procedure—which meant that for six months he had to have his legs straight out in front of him and he could not bend them at all. He either had to move schools, to a school that was all on ground level, or stay at his present school, where a chair lift would not do, because other children would have been falling over his legs, and have a lift installed. Through pressure from myself, his family and the local press—with photographs and things, unfortunately—eventually we got a very small lift installed in the school, so that he could carry on for the six months. Might anything in the Bill address such a situation, so that we would not have had to go public and go through all the fuss that we did?
John Friel: Mr. Lamb’s point about the change under the Equality Bill to the Disability Discrimination Act, on ancillary aids, would have an effect on that to some degree, if it was an ancillary aid. Even now, under the Disability Discrimination Act, a large structural alteration in a building would not be discriminatory but is exempted, so the amendments proposed as a result of the Lamb inquiry, under the changes to the DDA, in the circumstances you describe, probably would help in such a case, but not certainly. Do you want to comment further?
Brian Lamb: No, I agree.
 
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