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Education and Inspections Bill

My Lords, I love the thought of ““Adonis days””. No one knows better than the noble Lord, Lord Rix, how to pay a delightful compliment. I think they would go down very badly in schools where they would conjure up all the wrong images. At least ““Baker days”” conjured up a worthwhile profession, whereas I suspect that ““Adonis days”” would conjure up narcissism and a complete inability for the reality to live up to the ideal. Those in the Box have just passed me an excerpt from today's Times about the 3.20 at Ludlow this afternoon where a horse called ““Lord Adonis”” was running in a race called the Juvenile Novices Hurdle. I feel as though I have spent the whole afternoon running that race and I have a number of hurdles still to go. For any noble Lords who were hoping to make a quick buck, the price was 33-1, so I do not think they would have done very well. I start with the crucial role of special educational needs co-ordinators in schools, an issue to which we paid a great deal of attention following the report of the Select Committee on special educational needs. I shall speak to government Amendments Nos. 140, 144 and 153 which concern the crucial role of SENCOs. The central importance of the SENCO to good SEN provision was recognised by the Education and Skills Committee in its report on SEN. The committee recommended that SENCOs should, in all cases, be qualified teachers, in a senior management position in a school and it emphasised the importance of training for SENCOs. Government Amendments Nos. 140, 144 and 153 are introduced to implement that recommendation. In Amendment No. 82B, the noble Baroness, Lady Walmsley, seeks to ensure that the lead SENCO role will fall to a teacher. While government Amendment No. 140 refers to a SENCO as a ““member of staff””, I can give the House a categorical assurance that our intention, through regulations under the amendments I have moved, is to provide that the SENCO role should rest with a teacher. I also assure the House that the regulations will require SENCOs to be members of the senior leadership team in a school, as recommended by the committee. Under the regulation-making power that we are taking with these amendments, we will also institute more consistent standards for SENCOs supported by nationally accredited training, which will be a requirement for all newly appointed SENCOs to undertake after a date that we shall determine. As a first step towards that, we have commissioned the Training and Development Agency to develop a revised statement of the knowledge, skills and experience required of those leading special educational needs and disabilities provision in schools and a framework of standards for that role. This will help to inform our understanding about the level at which tasks should be performed and the type of nationally accredited training we will therefore provide. I believe that this will be a very major advance to the quality of training and support for special educational needs in schools. Although that represents a direction in respect of schools—we are very reluctant to direct schools—my own experience over the years has taught me that there is no more important role in a school, not only in the direct provision of special educational needs, but also in simulating a culture of support for SEN and training to fulfil obligations for SEN, than the role of the SEN co-ordinator. I therefore hope that the House will agree that this represents an effective response to the committee, and a significant step forward. On Amendment No. 81—also in the name of the noble Baroness, Lady Walmsley—on professional standards, we agree that it is important for all those who work closely with children to be properly equipped to deal with special educational needs and disability. The Secretary of State already has the power to set professional standards for teachers, and currently does so in secondary legislation and associated guidance. There is no need to set out specific standards in primary legislation, especially as doing so may reduce the flexibility needed to reflect developments over time. We take the issue of SEN and disability in professional standards seriously. The noble Baroness asked where we were on the current standards revision. A consultation on the revised standards for qualified teacher status has recently been completed and there are standards which relate to SEN and disability issues in the proposed revisions, which are more stringent than those they replace. Much depends on how these standards are put into practice. That is why, as part of our response to the Select Committee, we have asked Ofsted to carry out a thematic review of the journey the intending teacher takes through initial teacher training and induction in relation to SEN and disability. That is in addition to the work we are doing with the Teacher Training and Development Agency on a £1.1 million package of practical initiatives to strengthen the training teachers receive in SEN and disability. In our response to the Select Committee, we also announced that we are this year embarking on a national programme of continuing professional development for staff. Amendment No. 82 seeks to confer a duty on local authorities to secure a range of SEN provision. Section 14 of the Education Act 1996 relates to all schools, including special schools, and lays a duty on local authorities to secure sufficient schools for the provision of primary and secondary education. Section 14(6) says that, in exercising their functions to secure sufficient primary and secondary education, local authorities must have regard to the need for securing special educational provision for pupils with special educational needs. Those pupils include children with and without statements and with a variety of special educational needs, ranging from moderate to severe and complex. Local authorities must already, therefore, secure a range of provision. On the publication of information, my department collects information on the range of SEN provision in localities each year, and publishes information on the numbers of different types of the school and different pupils in each type of school in each local authority area. That is available on my department’s website. In addition, the DfES annually publishes data for each authority, showing the number of children with statements of special educational needs and where they are placed. Data is also published on children with statements who are educated other than in school, and on those who are awaiting provision. This data is also available on the DfES website. Amendment No. 141 is in the name of the noble Lords, Lord Dearing and Lord Lucas, on the assessments and statements system. The noble Lord, Lord Dearing, is now setting himself up as one of a two-person think tank on a challenging issue which we recognise needs continued thought. I have given careful consideration to his amendment, which seeks to ensure that assessments are carried out without considerations of finance. The present arrangements require local authorities first and foremost to focus on carefully establishing a child’s special educational needs so they can make appropriate provision to meet their individual needs. At the point of carrying out a statutory assessment, they must seek advice from the child’s school, their educational psychologist, social services, health professionals and, of course, the child’s parents. Advice is given independently and without consideration of finance. Indeed, paragraph 7.79 of the special educational needs code of practice, to which all local authorities must have regard by law, makes it clear that: "““Those giving advice may comment on the amount of provision they consider appropriate. Thus LEAs should not have blanket policies that prevent those giving advice from commenting on the amount of provision they consider a child requires””." If, having considered the assessment advice, the local authority decides to make a statement, it must specify appropriate provision for each identified need. As guardians of public funds, local authorities have duties not to incur unreasonable public expenditure and to use their resources efficiently in the context of meeting the identified needs of the child in question. This seems to be the right balance. It is difficult to see how the duties set out in the amendment could be reconciled with the duty of local authorities not to incur unreasonable public expenditure unless we were somehow able to provide unlimited resources. The noble Lord, Lord Dearing, is the last person to seek to encourage us to do things that are impractical and unattainable and subsections (2) and (3) of his new clause therefore seek to cover this point. The issue with those subsections is that by saying that a local authority may, "““decide in the light of findings the extent of financial support to be provided””," may simple reconstitute the current system in which the local authority has to decide how to meet the assessment within the resources it has available. It is not clear to me that the amendment is an improvement. Subsection (3) is genuinely ingenious and provides for cost-sharing between local and central government in respect of particularly high-cost placements. He specifies individual cases likely to exceed £50,000 or £100,000 a year. I can see some merit in that proposal, but our concern is that it might have the effect of encouraging local authorities to make perverse decisions in respect of placements that are not necessarily in the best interests of children because they would know that by making more expensive placements, they would be able to pass on a significant proportion of the costs to central government rather than having to meet them entirely through the decisions they make in respect of provision. The noble Lord, Lord Dearing, also tabled Amendment No. 142, which concerns parent partnership services. I am glad that he believes that they have an important role to play, and we agree with him. As to funding for parent partnership services, it is for elected local authorities to determine how best to deliver their statutory functions, including parent partnership services, within the overall funding available for school pupils from the department. However, in our response to the Select Committee, we made clear our intention to set clear expectations about how local authorities should meet the national standards for parent partnership services set out in the SEN code of practice, which include ensuring adequate funding. These expectations, which we will set out in due course, will include parent partnership services having their own budget, a management group with independent representation, links to children’s information services and choice advisers, locating parent partnership services away from SEN casework teams, independent training for parent partnership service co-ordinators, access to independent parental support and a voice for parent partnership services in local children’s services policy development. Those requirements being set out more clearly will help the more effective development of parent partnership services, but I take to heart the point the noble Lord made about ensuring earlier notification to parents of the availability of the parent partnership service—and I will see if there is more we can do in that regard—so that parents are aware of the availability of the service from the point at which they need to start engaging with the system regarding the special educational needs of their children. Amendments Nos. 115A and 116A were moved by my noble friend Lady Thornton and relate to discrimination against disabled pupils. We accept the principles that underlie them, but we believe that they are met by existing law and guidance. In making their statement of principles and determining the measures that constitute a school’s behaviour policy, governing bodies and head teachers must act in accordance with their statutory responsibilities towards pupils with disabilities. In addition, Clause 87 makes it clear that a disciplinary penalty is a penalty imposed on a pupil where his behaviour falls below a standard that could reasonably be expected of that individual; that is, behaviour that could reasonably be expected of the pupil taking into account any disability that he or she may have. Clause 88 specifies that, in order to be lawful, a disciplinary penalty must satisfy three conditions, one of which—the condition of reasonableness—is determined by taking into account the pupil’s disability. The same arguments apply to subsection (1) of Amendment No. 117 in the name of the noble Baroness, Lady Buscombe. In determining a school’s behaviour policy, head teachers must act in accordance with their statutory responsibilities toward pupils with special educational needs. The safeguards in Clauses 87 and 88 apply to special educational needs in the same way as to disability. We will be reinforcing these messages and providing practical advice on how to provide for such pupils in our guidance on school behaviour policies. In doing so, we will consult with the Special Educational Consortium and other key stakeholders about its contents. Subsections (2) and (3) in Amendment No. 117 concern physical restraint. I stress that Clause 90, which deals with the use of force, is not new. It re-enacts provisions that became law eight years ago, and we are not aware of any problems caused by them since. That is not to say that there have not been cases where pupils, parents and school staff have been unhappy about when and how physical restraint has been used. Given the emotive nature of the issue, there are bound to be such cases. The actual guidance and law have not been felt to be inadequate. The department has supported the provision with guidance, including specific guidance relating to pupils with special educational needs. We will be reviewing our guidance in the light of the parliamentary debates and will consult a wide range of stakeholders as we do so. I turn to Amendment No. 117A regarding exclusions in the name of my noble friend Lady Thornton, which was spoken to by the noble Baroness, Lady Darcy. This amendment would ensure that no disabled pupil or pupil with special educational needs could be excluded permanently unless a review was held, either of the reasonable adjustments being made for a disabled pupil or of the special educational provision being made for a pupil with special educational needs. My noble friend asked me about the robustness of our protections for such pupils. I entirely agree that we need protections which are as robust as we can make them, balancing of course the duties that schools also have for the welfare of other pupils. The recently issued guidance on exclusions from schools with pupil referral units, which the department has given out, could not be more robust in this respect. Paragraph 45 on pupils with special educational needs states: "““Statutory guidance on identifying, assessing and making provision for pupils with SEN, including those with behavioural, social and emotional needs, is given in the Special Educational Needs Code of Practice. Schools must have regard to this guidance. School governing bodies””—" a matter also mentioned by my noble friend— "““have a statutory duty to do their best to ensure that the necessary provision is made for any pupil who has SEN. Early identification and intervention, accurate assessment and the arrangement of appropriate provision to meet pupils’ SEN usually leads to better outcomes””." On exclusions paragraph 46 of the guidance states: "““Other than in the most exceptional circumstances, schools should avoid excluding pupils with statements. They should also make every effort to avoid excluding pupils who are being supported at School Action or School Action Plus under the Special Educational Needs Code of Practice, including those at School Action Plus who are being assessed for a statement””." I believe that the guidance on this issue being given to schools could not be clearer. More progress needs to be made on the actual practice in schools itself but that is improving. The statistics on the exclusion of pupils with special educational needs shows a substantial drop. The number of permanent exclusions of pupils with statements of SEN dropped from 2,250 in 1997 to 1,130 in 2002. It is now down to 850 for the last year for which we have statistics, which is 2004-05. I think that the House will accept that a reduction from 2,250 to 850 represents great progress by schools, although of course there is further to go. A recent in-depth study by the National Foundation for Educational Research into an admissions and exclusions of pupils with special educational needs published in January last year—I will make this research more widely available to noble Lords—concluded: "““Pupils with SEN generally went through the same processes as, and were treated similarly to, other pupils, but thresholds were often higher and a greater degree of unacceptable behaviour was tolerated before the exclusion process was initiated””." That indicates that the reasonable adjustments that my noble friend rightly seeks and which schools are expected to observe under the Disability Discrimination Act are already being observed by the great majority of schools, as the research stated. However, we accept that more progress needs to be made. That is why, under the Disability Discrimination Act, from this December all schools will have to publish disability equality plans, which will take the implementation of their obligations to a new level. I therefore hope that my noble friend will be satisfied that we are very much on the case. She asked me a number of specific questions, which I think were put to her by the Special Education Consortium. I have long replies to each of the points that she raised; it may be best if I circulate those to noble Lords in writing. I hope that that will persuade my noble friend to decide that she does not need to bring the matter back at Third Reading.