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Lord Lucas: I support that entirely. There is very little information when you are faced with choosing a special school as to what the characteristics are, let alone whether one is good or bad. Some progress in that direction would be a great help to parents who find themselves in that position.
Baroness Blackstone: I think I can say something that should be helpful to Members of the Committee who have spoken on this amendment, which would require Her Majesty's Chief Inspector of Schools to report on the use of the caveats under Section 316(3) and to monitor the effect of a legislative framework on practice on the ground.
We shall certainly want to see whether this new statutory framework will put right any of the abuses that existed under the previous regime. I should like to give the Committee the absolute assurance that the Government will monitor very closely the new framework.
I turn now to Ofsted. The regular Ofsted inspection of schools and their inspection of LEAs, along with the work of the Audit Commission, ensures a fairly high level of accountability on what schools and LEAs are doing. The Secretary of State can use his powers in Section 2 of the Schools Inspections Act 1996 and Section 38 of the Education Act 1997 to require a report from Her Majesty's Chief Inspector of Schools on any education function of schools or LEAs.
I give a commitment that the Government will be asking Her Majesty's Chief Inspector of Schools to look specifically at the impact of this provision once it is enacted and is being used as the legislative mechanism to determine whether a child with a statement of special educational needs is educated in a mainstream school or in a special school. That goes to the heart of what the noble Lord who supported this amendment wants to see.
I very much hope that the commitment that I have given will mean that the noble Lord, Lord Addington, will feel able to withdraw his amendment. I do not know whether it goes as far as the noble Lord, Lord Baker, would like. It provides a new opportunity to obtain far more information of a general kind, rather than just specific information about the inspection reports of individual schools, which should be helpful to us all.
Lord Addington: I thank the noble Lord, Lord Baker, for spotting the weakness of this probe and for sharpening it up a little. We seek to get rid of the problem that the noble Lord, Lord Baker, identified. He put the matter succinctly. Every time we discuss this matter we talk about various problems. We must have better information if we are to discuss when inclusion is appropriate.
The noble Baroness said: My understanding is that Amendment No. 20 has already been spoken to in a previous group of amendments. In some ways the Government's views on using the private sector, where appropriate, have been mentioned in fairly positive terms by the Minister.
The Bill continues to allow parents to choose to send a child with special educational needs to an independent school--I believe that that is right and proper--but only if the parent or someone other than the LEA pays for that. I do not agree with that. The Bill effectively bans an LEA from purchasing a place at an independent school for a child with special educational needs or from partially assisting the parents with the cost of that.
If it is the Minister's intention to improve the provision that we make for children with special needs, the Government must continue to acknowledge that an independent school may be best placed to assist a child with special educational needs. If that is the case, the relevant LEA, under its legal obligation to provide education, should pay for that in full or in part. The Bill, as I read it, prohibits LEAs from doing that. However, the answer that the Minister gave to the noble Lord, Lord Northbourne, seemed to imply that, where it was appropriate and where provision could not be made within the maintained sector, LEAs would be free to purchase such education in whole or in part. Under the School Standards and Framework Act LEAs were not permitted to purchase education in the independent sector for children without special needs.
It would be helpful to have it unequivocally clarified that LEAs would be able to purchase the provision I have mentioned. It would be even more helpful to have the wording of the Bill modified to convey that. If my amendment is not right in every dot and comma, perhaps I could be advised as to how that could be done. I beg to move.
Lord Lucas: I have tabled the other amendments in this group. I share the lack of understanding about what subsection (1) does. The only function that I can see for it, following what the Minister has said, is to allow me to pay for my child to be educated in a special school if I so choose, but Section 316 does not stop me doing that anyway. What does the provision allow that would otherwise be forbidden by Section 316? What set of circumstances is it designed to deal with? My Amendment No. 19, whether it is relevant or not, depends on what subsection (1) is meant to be about.
My other amendments in this group are nothing to do with that issue. Amendment No. 29 relates to subsections (5) and (6) on page 3, which seem to allow the phrase "efficient use of resources", which has been excised from Section 316, to come back in another guise. If a local authority is allowed to argue that the steps that it would be required to take to provide for a child with SEN are unreasonable because of cost, we go straight back to the issue of the "efficient use of resources" as it exists in the Bill at the moment. The wording of subsections (5) and (6) opens the back door to local authorities to bring cost back into the equation and to say that they cannot provide for, say, a particular blind child in a particular school because it would be too expensive and the steps required would be unreasonable.
There are two aspects to Amendment No. 220. It picks up on another reference to "efficient use of resources", which is sitting around in Schedule 27 to the 1996 Act. Since we are removing those words from Section 316, we ought to question whether they should still be hanging around in Schedule 27.
The second half of that amendment is different, focusing on the duty imposed or the rights that are featured in Section 411(5) of the 1996 Act in relation to parental choice in mainstream schools. The amendment would reproduce that for choices of school under statements. The local authority can currently refuse to send a child to any school outside its own boundaries, because the old arrangements whereby LEA boundaries had some meaning for school choice are preserved for special education, whereas they have not been preserved for mainstream education. The second half of Amendment No. 220 is an attempt to bring special education into line with the provisions for mainstream education when it comes to the physical boundaries on parental choice.
Lord Northbourne: In the context of Amendments Nos. 18 and 19, I did not respond to the remarks of the Minister about Amendment No. 20, because I believed that it did not fit in with the etiquette. However, I am grateful to her. I had written against it "probe further". The questions asked by others here, including the noble Baroness, Lady Blatch, may give the Minister an opportunity to answer my points and enable me to cross out "probe further".
Baroness Blackstone: Perhaps I may begin by reassuring the noble Baroness, Lady Blatch. The duty of an LEA to pay for independent schooling which is set out in Section 348 is specifically preserved in Section 316A(3)(a). LEAs will continue to be able to send children to independent schools if it is required
Perhaps I may also immediately answer the question that was put by the noble Lord, Lord Lucas. If Section 1 did not exist, parents could not send a SEN child to an independent school at all because it would be in breach of the Human Rights Act. Do not ask me to explain the legal niceties of how it works because I do not know, but it preserves the rights of parents to use the independent sector if they pay. I hope that is helpful. It has a specific purpose here.
Perhaps I should say very quickly why we cannot accept Amendments Nos. 18 and 19. I do not believe that the noble Baroness, Lady Blatch, will think her amendment is necessary in the light of what I have said. The amendments would seek to acquire funding in the case of Amendment No. 18, and partial funding in the case of Amendment No. 19 for places in independent and non-maintained schools, where that is what the parent wants. That would not be an appropriate step to take.
If parents decide to educate their children in an independent or non-maintained special school, that is a matter for them. If a school is named on a child's statement, or an LEA is satisfied that a child with special educational needs should attend a particular non-maintained school, then under Section 348 of the 1996 Act, the LEA is required to meet the fees.
LEAs are also given the power to meet the fees of children attending specialised institutions outside England and Wales. In other cases, the financial burdens of that child's private education should not rest either in whole or in part with the taxpayer. LEAs should be required to fund places in non-maintained schools only where it is appropriate for a child's statement to name such a school, or the child's interests require that special educational provision be made for him at a non-maintained school, and the particular school is appropriate. Members of the Committee will agree that that preserves the efficient use of resources, and that has been the system up until now.
I turn to Amendment No. 29. It would be inappropriate to seek to set out on the face of the Bill all the reasonable steps maintained schools and LEAs could take to prevent a child's inclusion being incompatible with the efficient education of other children. However, when it comes to considering what is reasonable, we believe that cost should be one of the factors to be taken into account. The concept of reasonableness is well understood. It will often be reasonable to spend some money, but it will not always be reasonable to spend large sums of money. It will depend on all the circumstances, and they should all be taken into account. That is the point of the reasonableness test and that is always how it has been.
This is a complex clause, but it is important to understand the interaction between taking reasonable steps and the efficient education of others. Maintained schools and LEAs will be able to rely on the exception that a child's inclusion would be incompatible with the efficient education of other children only where there are no reasonable steps which they could take to prevent that. As I said a moment ago, when it comes to considering what is reasonable--that is, whether an LEA or school can take reasonable steps to prevent a child's inclusion being incompatible with the efficient education of others--cost will be a factor to be taken into account. However, cost will not be a factor when deciding whether a child's inclusion would be incompatible with the efficient education of other children. I hope that the guidance will make that absolutely clear.
We believe that detailed questions of what is reasonable are better suited to guidance and the clause provides for that. Maintained schools and LEAs will have to have regard to the guidance and I can assure noble Lords that the Government want to work with all the interested parties in drawing up that guidance. I hope that, having heard these reassurances, the noble Lord, Lord Lucas, is able to withdraw that amendment.
The intention behind Amendment No. 220 is to make it easier for parents to have an independent school named in their child's assessment. The existing arrangements give parents the opportunity to make representations for an independent school to be named in their child's statement. Where an LEA refuses to do so, parents can appeal to the tribunal against the school actually named, and suggest alternatives to the tribunal--including, if they wish, alternatives in the independent sector.
However, there will be a role here for the new informal arrangements which we hope will both prevent and resolve disputes. Where parents and the authority disagree over issues like this the new arrangements, which parents enter into voluntarily, and which do not in any way affect their right of appeal, will ensure that an acceptable solution is reached rather more quickly than has perhaps been the case.
Where is it appropriate for a child's statement to name an independent school suggested by parents, then the LEA really should do so. However, it is also right that LEAs should seek to use their resources efficiently--and nobody can disagree with that. The omission of efficient use of resources from the schedule is, for those reasons, quite inappropriate.
When making a determination in relation to a parental preference made in accordance with Schedule 27, or the representations made by parents for an independent school, we have to consider the cost. If we did not, we should be jeopardising the interests of all children. Where parents feel that an LEA has used that test inappropriately, they can seek redress from the tribunal, or use the new informal arrangements to resolve the dispute.
I conclude by saying that we value the important role of the independent sector. I should like to make that absolutely clear. The Bill specifically provides that parents should be free to send their children to non-maintained schools and it retains the duty on LEAs to pay for provision if they decide that a non-maintained school is appropriate. Our commitment to the sector is underlined by the quite significant additional funding that we have been able to provide to non-maintained special schools, which has been very widely welcomed.