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Lord Davies of Oldham: My Lords, I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begin again not before 8.33 p.m.

Moved accordingly and, on Question, Motion agreed to.

House resumed.

Special Educational Needs Code of Practice

7.33 p.m.

Baroness Ashton of Upholland rose to move, That the draft code of practice laid before the House on 23rd October be approved.

The noble Baroness said: My Lords, regulations made under the 1996 Act, which were also laid before this House on 23rd October and are referred to in the draft code of practice, provide the detail of the statutory requirements for assessments, statements and reviews of statements of special educational needs in England. These consolidate the Education (Special Educational Needs) (England) Regulations 2001, the

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Education (Special Educational Needs) (England) (Amendment) Regulations 2001 and the Education (Special Educational Needs) (England) (Amendment No. 2) Regulations 2001, which themselves replaced the 1994 regulations.

Noble Lords will know that we withdrew a previous draft of the revised code of practice from Parliament in July in the light of concerns expressed by Members of both Houses, many on behalf of parents, about the guidance concerning statements of special educational needs. We have reflected carefully on those concerns and addressed them in the present draft. The current code of practice has done much to improve the identification and assessment of special educational needs. Ofsted reports on the implementation of the code of practice have shown that it has helped schools considerably in identifying children with special educational needs and matching appropriate provision to their needs. That is due in very large measure to the careful and thoughtful way in which the noble Baroness, Lady Blatch, developed the code of practice and steered it through this House and into practice.

It is not surprising, however, that the operation of the code has shown us ways in which it may be improved. In particular, teachers and local education authorities have told us to look at reducing the bureaucracy in the code and to focus more on teaching and learning and reflect within it important developments in education.

We consulted extensively on a draft revised code of practice. Over 30,000 copies of a consultation draft were sent out between July and October 2000, and we received over 1,000 responses from a wide range of organisations and individuals. Officials attended many conferences and meetings to listen to people's views. Most people favoured the main changes we proposed but some issues were raised. We listened carefully to people's views on these issues and made a number of changes to the draft. In chapter 1 we brought together the strategic planning functions of school governing bodies and LEAs for SEN to make it easier for parents and others to know who is responsible for what. In chapter 2 we have provided fuller guidance for LEAs on the services that they are expected to provide to parents through parent partnership services and their arrangements for resolving disagreements with schools and parents, including minimum standards.

In chapter 3 we have strengthened considerably the guidance on seeking and taking account of the views of children with SEN. Chapters 4, 5 and 6 now give stronger support for the role of the SEN co-ordinator in helping school governing bodies and head teachers to raise standards of achievement for children with SEN and recognition of their need for support within the school. The guidance on assessments in chapter 7 has been strengthened by clarifying the terms on which LEAs should seek advice and making clear that they should seek the views of the child. We have enhanced the guidance on specifying provision for individual pupils in their statements and highlighted the accountability which schools and LEAs share for children with statements when funds are delegated in chapter 8.

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The draft code of practice that we are considering today is all about removing barriers to participation and learning and raising the attainment of all children. Its key principle--that children with special educational needs should have their needs met--reflects the Government's belief that providing effective support for children with SEN is an essential feature of an effective school. We are supporting the greater emphasis in the draft code of practice on the early identification of children's special educational needs with £25 million over the next three years to help LEAs and their early years development and childcare partnerships to improve local provision for young children with SEN. There is also a multi-agency working party to consider the needs of children under two with SEN and disabilities and their families, working with the Department of Health to consider the educational implications of the introduction of new-born hearing screening.

Noble Lords will be very aware that children can have special educational needs at different stages of their school career, not just in the early years. That is why we have developed the guidance in the draft code of practice on school-based intervention to focus less on procedures and more on improving teaching and learning at all times.

We have given proper recognition to the role of class and subject teachers in identifying children's SEN and tailoring their approaches to meet those needs. We have reduced the number of school-based elements from three to two and cut the paperwork on individual education plans and annual reviews to free up time for teachers to concentrate on helping children to learn.

Teachers and other professionals play a crucial role in making effective provision for children with SEN. But children themselves have a unique perspective. They know what it feels like to have the learning difficulties that they have and can tell us their wishes and aspirations. The draft code places the voice of the child at the heart of provision for special educational needs. It expects schools and LEAs to seek and take account of the views and wishes of children with SEN throughout their school lives. This includes during statutory assessments, the management of individual education plans, attending annual reviews and drawing up transition plans.

Partnership with parents is given fresh impetus and greater emphasis in the draft code. The code makes clear that the parent partnership services and disagreement resolution services that LEAs are expected to provide, following the Special Educational Needs and Disability Act 2001, should be of high quality, and they will in no way affect the right of parents to appeal to the SEN Tribunal.

Essential guidance on the key features of the new statutory framework for inclusion, also introduced in the SEN and Disability Act, is set out in the draft code of practice. But we have also been consulting teachers, governors, local education authorities, teacher associations, voluntary groups, parents and others on separate statutory guidance on the new arrangements

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for inclusion. Copies of the guidance have been placed in the Library. We aim to publish it formally alongside the revised SEN code of practice.

The guidance provides practical advice on how the inclusion framework interacts with other provisions within the Education Act 1996; the kinds of reasonable steps that maintained schools and LEAs should consider taking to prevent inclusion being incompatible with the efficient education of other children; instances when it may not be possible to include specific children; and the safeguards which protect the interests of individual children with special educational needs.

Inclusion can improve the educational experience of all children, but one size does not fit all. There is a continuing and vital role for special schools in an inclusive education system. They form part of the continuum of education, offering high quality education to children best educated in them, as well as supporting children being educated in mainstream schools. They are key partners in our strategy on inclusion.

In the debate held last July in another place on the previous draft of the revised code of practice, it was clear that a number of honourable Members were anxious that guidance on quantifying the special educational provision in children's statements of SEN could be interpreted as encouraging vague statements. Noble Lords expressed similar concerns ahead of the debate scheduled for 12th July in this House.

At the time we took the decision to withdraw the draft code of practice and to reflect very carefully on the guidance on quantifying provision in statements. I want to make it absolutely clear that it was never the Government's intention to weaken the position of children with statements. The guidance in the previous draft of the code of practice laid before the House in June made it clear that a statement should describe all of the child's special educational needs clearly and in full; set out the main objectives that the special educational provision aims to meet; specify clearly and in detail appropriate provision to meet each of the child's needs; describe the arrangements for setting shorter-term objectives for the child; and any special arrangements for the annual review of the statement. It stressed the importance of school monitoring and evaluation of the child's progress during the year and placed a new emphasis on the importance of the child's progress towards identified outcomes being monitored by the LEA with the school.

The current code of practice, introduced in 1994, advises that provision in a child's statement should,


    "normally be specific, detailed and quantified".

The draft code we placed before the House in June advised that appropriate provision for each identified need should always be specified in terms that are clear, specific and detailed. It made absolutely clear that LEAs must not have blanket policies of never quantifying provision in statements. And, following helpful interventions during the debates on the Special Educational Needs and Disability Act from the noble Baroness, Lady Darcy de Knayth, and the noble Lord,

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Lord Lucas, the section in the draft code on assessments was strengthened to make it clear that professionals giving advice can comment on the amount of provision they consider appropriate for a child, and that LEAs must not have blanket policies preventing that.

The draft code we are now considering retains all of that advice, but it also makes clear that provision in statements should normally be quantified in terms, for example, of hours and staffing arrangements. The change should remove any doubt about encouraging vague statements. The draft also recognises--as does the current code of practice--that cases will arise where some flexibility is required to meet the changing needs of the child concerned. That is very important. No code of practice can dictate the precise details of the provision to be made for each and every individual child.

It also includes some other changes. First, the advice relating to children with medical needs contained in chapter 7 of the draft code clarifies that, where a child has medical needs which impact on their access to education, local education authorities should consider whether there is a need for statutory assessment by reference to the detailed guidance set out earlier in the same chapter under four broad areas of need.

Secondly, the advice in chapter 8 on school placements now makes it clear that school governing bodies cannot refuse their school being named in a child's statement; they can only argue against it. The changes we have made to Schedule 27 to the Education Act 1996 ensure that schools are always sent copies of proposed statements before decisions are made about placements. This will put LEAs, schools and parents in a better position to consider and discuss placements at an earlier stage.

Thirdly, the draft code of practice and the associated regulations clarify that those giving advice can comment on the type of provision they consider appropriate if they wish, but, as now, cannot give the name of a particular school. The draft code makes it clear that this should not, of course, pre-empt the parent's statement of a preference for a particular school or the LEA's eventual decision about the school, type of school or education other than school-based that it considers appropriate.

Issues were also raised concerning the advice contained in the previous draft code of practice as regards LEAs' duties to identify children with special educational needs who may need statements. The noble Baroness, Lady Darcy de Knayth, had been concerned about the position of children with SEN who are excluded from school.

I believe that the draft code now laid before the House is clear on the duties of LEAs. Indeed, it sets out the new requirements for LEAs to publish their arrangements for identifying children with SEN from July 2002. In practice, LEAs are able to fulfil this duty without the need for additional bureaucratic burdens to be placed on schools. Parents of children without statements have always been able to request assessments. Following the SEN and Disability Act,

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schools will be able to request assessments and have their requests considered within the same six-week timescale as requests from parents.

I appreciate the concerns expressed by the noble Baroness, Lady Darcy de Knayth, about children who are excluded from school. She will be pleased to learn that from January 2002 we shall be collecting additional data, by LEA, on children with statements who are excluded from school. Furthermore, from September 2002 we shall ensure that any child who is excluded from school for 15 weeks receives suitable full-time education. We expect LEAs to ensure that children with special educational needs who are excluded from school receive provision that is appropriate to their special educational needs.

Some noble Lords have raised issues concerning the parents of children with statements who choose to educate their children at home. Advice on this is included in the draft code. It makes clear that where such education takes place, local education authorities will retain their duty to ensure that the child's needs are met. The statement must remain in force and the authority must make sure that parents can make suitable arrangements. The term "suitable arrangements" does not mean having to specify exact arrangements in the child's statement. However, the authority must satisfy itself that the arrangements put in place by the parents are suitable to meet the needs of the child. Where that is the case, the authority is relieved of its duty to arrange for provision as specified. If, however, the arrangements fall short, then the authority is not absolved of its responsibility. However, the authority could, for example, itself make some provision to help the parents to put in place suitable arrangements. Furthermore, even where authorities are satisfied that arrangements are suitable, they will still have a duty to maintain the child's statement and to review it annually.

I hope that noble Lords will see that we have taken extremely seriously all the views that have been put to us. I am enormously grateful for the comments and advice that we received. I hope that noble Lords will now approve the draft code. I commend the draft code of practice to the House.

Moved, That the draft Code of Practice laid before the House on 23rd October be approved.--(Baroness Ashton of Upholland.)

7.45 p.m.

Baroness Blatch: My Lords, I am grateful to the noble Baroness for her comprehensive introduction of the draft code of practice. No doubt many of the points to be raised in our debate will already have been touched on by the noble Baroness in the course of her detailed comments.

Like many other noble Lords, I welcomed the withdrawal of the former draft special educational needs code of practice which was laid before the House earlier this year. It was clear at the time that the drafting was unsatisfactory. Indeed, most of the points of concern had been raised during the course of the debates on the Special Educational Needs and Disability Bill as it made its way through this House.

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Ever since the then Secretary of State, the right honourable David Blunkett, downgraded the need for specificity in the drafting of statements for children with special educational needs, I and many others, in particular those organisations representing children with special educational needs, have fought to have statements written in such a way that the detail of educational needs in terms of hours of provision, staffing arrangements and any additional equipment requirements should be specified. We also argued strongly for flexibility only--I stress this--in exceptional circumstances.

The changes made to the draft laid before the House tonight are welcome, but they are by no means perfect. For example, the Royal National Institute for the Blind is concerned about omissions from the draft code as regards provision for mobility education for children with sight impairment and the need for guidance on detecting visual impairment. We know that work has been carried out to establish more widespread screening of babies for sight impairment. It would be helpful to know today what progress has been made by the department. I understand that 30th October is Eye Test Action Day and that literature will be provided by the Royal National Institute for the Blind to emphasise the importance to parents of having sight tests for their children.

As to the question of mobility, it is important to make the point that mobility education for children with sight impairment is as important as language or speech therapy for children with other difficulties. It is a pity that this has not been properly addressed in the code.

But, having said that, like many other organisations, the Royal National Institute for the Blind wishes to see the code approved to allow schools and LEAs to get on with its implementation.

As the Minister said, the earlier 1994 code contained a requirement for clear and precise wording of statements. We are pleased to see that the wording has been reinstated. We welcome the changes in paragraph 7 to improve intervention measures for children who, through other medical needs, are prevented from gaining free access to education, and we also welcome the clarification of the respective roles of schools and LEAs concerning the allocation of funding and provision of information.

Although there has been a widespread welcome for the code and the fact that the contents of statements are now to be more specific, the wording is still not right. For example, paragraph 8.37 of the code leaves something to be desired. The Independent Panel for Special Educational Advice has expressed a concern--with which I entirely agree--about the words,


    "some flexibility should be retained in order to meet the changing special educational needs of the child concerned".

IPSEA speaks for many of us. It believes that guidance should be issued to make it clear to LEAs that the Government envisage only a very small number of children--the genuinely exceptional cases--require statements in which provision is not quantified.

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IPSEA states its reasons for taking this view as:


    "A statement which fails to quantify provision (no matter how positive and benign an LEA's intentions) leaves the child without the protection which the whole assessment process, and finalised Statement, was meant to put in place. An unquantified Statement is inevitably, by definition, a risk. For this reason, extreme caution needs to be exercised by LEAs when considering whether a child's statement should be quantified or flexible. Indeed, they should bear in mind Counsel's Opinion on this issue, provided by David Wolfe (which the Government has seen and which was copied to Lords for the last debate). Wolfe points out that 'if a child's needs are known to fluctuate, that...can be accommodated without losing the protection which comes from quantification. For example, if a child needs speech therapy but the amount they need varies from week to week, then that can be reflected by quantifying provision over, say, a term...provision for a child whose ability to benefit from speech therapy varies according to his medical condition could be quantified as follows: weekly sessions with a speech therapist of an average length of one hour each leading to a termly total of at least 13 hours. In my opinion, such a formulation allows for appropriate flexibility while also ensuring that the child is protected and (importantly) the school and the LEA know what they need to do in order to meet the child's identified needs'.


    "In short, it is extremely difficult to imagine a situation in which the need to provide flexibility has to be at the expense of quantification.


    "Further, it is difficult to imagine very many cases in which flexibility is appropriate. The overwhelming majority of children with statements of special educational needs have learning difficulties which arise from life-long conditions; their needs are stable. Changes will of course be needed, over time, to the provision they receive, but the review and amendment processes have always allowed for this. If a child's needs require it, a statement can be amended at the stroke of a pen by an LEA, following the statutory period of 15 days for parents to comment on the proposal to amend.


    "The example provided by David Wolfe indicates how exceptional the need for flexibility is. A statement from the Minister to the effect that flexibility is appropriate not just in the minority of cases, but in an exceedingly small and clearly exceptional minority, would be helpful as reinforcement to the guidance in the Code.


    It is also essential that Government guidance keeps up with changes in case law. The judgment of Justice Laws in L v. Clarke and Somerset County Council (1998) post-dated the original Code of Practice and refined the interpretation which LEAs must make of their duty under s324 to specify special educational provision in a statement. Included in the judgment was this passage:


    'It would seem that in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum, unless hours per week are set out. The real question, therefore, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case'.


    "It would be useful if the Minister would confirm that LEAs must act in accordance with case law as well as the Code of Practice. It is a waste of public resources, apart from anything else, for parents to have to appeal to the SENT [Special Educational Needs Tribunal] in order that Part 3 of their child's statement should leave no room for doubt as to what has been decided is necessary for their child".

I am therefore asking the Minister to place on record that statements will normally be specific and quantified in terms of hours of provision and staffing arrangements, and that only in very exceptional circumstances will LEAs be able to depart from the normal procedure. One test of exceptionality would be

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when it is not possible to quantify in terms of hours of provision or staffing arrangements. For the life of me, I find it hard to think of a single exceptional case.

I gave the noble Baroness notice of a related concern to do with Section 324(4)(a) of the Education Act 1996 as amended by the Special Educational Needs and Disability Act. The noble Baroness touched on the point, but I wish to emphasise it because I am not sure that the whole point was addressed. I understand a letter has been sent to the Minister, Estelle Morris, asking her to look again at what appears to be an error in the Act. The noble Baroness did not refer to it as being a mistake.

For children who are electively home educated and for whom a statement is maintained, it would appear that the parents have a duty to arrange the provisions specified in the statement. Yet there is no such duty on parents in the Education Act 1996. Does the Minister have any further news as to whether there is a disconnection between what the Act states and what the amended Act is intended to mean? I know that Mrs McLean, of Spearhead, which is the organisation most concerned about education at home, would be interested in any reply.

I should now like to say a word about paragraph 7.80 of the draft. In my view, paragraph 7.80 is badly drafted. Perhaps I may read from part-way through the paragraph:


    ""Discussions between advisers and parents about the child's needs may include consideration of various options, including the scope for mainstream education for the child and the type of school in which the child's needs might best be met, for example, mainstream, special or residential".

Part of that paragraph is otiose. The point is made twice. I think I know where the department is coming from and why it makes the point twice, but, frankly, it should not be there. The words,


    "including the scope for mainstream education for the child",

are otiose because the paragraph states that,


    "Discussions between advisers and parents about the child's needs may include consideration of various options".

The various options relate to the type of school in which the child's needs might best be met--for example, mainstream, special or residential. The words do not have be there twice. Although I shall not oppose the Motion, I point out to the noble Baroness that that may be confusing. There may be a deliberate hidden message.

We are grateful to the noble Baroness. Following earlier debates in another place and the debate on my amendment in July, she was probably influential in persuading her colleagues to withdraw the draft code of practice for revision. For that we thank her most warmly. If I may be so bold as to say so, how I wish the noble Baroness had taken the Bill through the House. Many of the points made during our proceedings would have resonated more strongly with her. However, we shall not oppose the code of practice. We wish it well, especially if we can have some of the assurances that have been sought.

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There is one vexed point. We are placing on local authorities an onerous duty to deliver effectively what the Government want them to deliver. If they do not have the resources, they will be unable to do so. That point needs to be made strongly.

Finally, the test of the code of practice will be the degree to which early special educational needs are identified; the degree to which they are specified; the degree to which the specification is appropriate; and, the degree to which, where possible--if it is consistent with the special educational needs of the child--it honours the parents' wishes.

8 p.m.

Baroness Sharp of Guildford: My Lords, we on these Benches very much welcome the new code of practice. There has been lengthy consultation on the code, over some 18 months. It carries forward the Government's inclusion agenda that we debated at some length earlier in relation to the Special Educational Needs and Disabilities Bill. We welcome in particular the strategic approach that is now incorporated in the code of practice, and its emphasis on links between agencies.

We are pleased to see the shift from the five-stage special educational needs approach to the three-stage approach, and the fact that the code clarifies the respective role of schools and local education authorities, including the information on what schools are expected to provide from their delegated budgets. We are pleased to see arrangements for the training and support of staff with SEN responsibilities. We are pleased to see the arrangements for monitoring admissions of children with SEN to maintained schools. We are delighted that there is now guidance for provision in the early years settings. We are also delighted that there are arrangements for reviewing and updating the policy itself.

In particular, we welcome the emphasis on participation by parents and pupils. Perhaps I may draw the attention of the House to paragraph 7.85, which makes it clear that LEAs,


    "should also seek to ascertain the views of children and young people as part of the assessment".

That issue was raised at some length when we debated the Bill. I am pleased to see that it is now incorporated in the code of practice.

Like the noble Baroness, Lady Blatch, in the debates in July we had considerable difficulties in regard to paragraphs 8.36 and 8.37 on the issue of quantification. We were alarmed at the watering down of the promise that we had been given, as we thought, by the Minister that he would strengthen the pressure on LEAs for quantification. We felt that the weasel words "as necessary" in the original draft made it much too easy for LEAs to wriggle away from their obligations.

This has been a long-term and difficult problem for those dealing with SEN issues. I have been approached by many parents, concerned about the fact that they thought that they had got it clear as to what provision would be available--say, in speech therapy for their

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children--only to find that, when it came to it, it was not provided and the LEAs were able to argue that provision of speech therapy could imply one hour a week or it could imply eight hours a week. We were extremely concerned about the issue.

The new wording is considerably better than the old wording. The code now makes it clear that provision shall normally be quantified, although--a point made by the noble Baroness, Lady Blatch--there will be cases where some flexibility should be maintained.

Our preference on these Benches--like that of the Conservatives--would have been for rather more emphasis on the exceptional nature of non-quantification. We should have preferred wording such as, "although in a few cases", or "occasionally, it may be necessary to retain some flexibility". Like the noble Baroness, Lady Blatch, I hope that the Minister can give us assurances that the intention is that it will be exceptional for quantification not to take place.

Generally speaking, we welcome the new code of practice. We welcome also the fact that attempts have been made between the two codes to clarify the assessment of children with medical needs and the guidance on requests for advice from professionals working with LEAs and the position on the naming of schools.

I echo the points made by the noble Baroness, Lady Blatch, about the evidence from the RNIB and its worries about those with visual impairment. This emphasises the need for early screening. We dealt with the point at length during our debates on the Bill. The earlier a disability is known about, the better it will be for the person concerned. The RNIB's comments have considerable merit. The same is true in regard to mobility education.

Finally, I again echo the words of the noble Baroness, Lady Blatch. We are delighted to see the publication of the code of practice and we welcome it. However, we emphasise once again the question of resources. We have willed the ends, but we must make sure that there are sufficient means to meet those ends.


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