Education Bill

Lord Low of Dalston Excerpts

Tuesday 18th October 2011 Lords Chamber

Moved by

[Lord Low of Dalston]

15: Clause 4, page 8, line 22, at end insert—
“( ) Regulations must make provision that if a pupil has been excluded from school for a fixed period on two or more occasions in a 12 month period or is at risk of permanent exclusion, a head teacher shall ensure that—
(a) there is an assessment of whether that child has unidentified learning needs;(b) there is a review of the effectiveness of the special educational provision being made if that pupil has identified special educational needs;(c) there is a review of the effectiveness of the reasonable adjustments being made if that pupil has disability.”

[Lord Low of Dalston]

My Lords, I shall speak also to Amendments 24 to 28. I shall speak as briefly as I can because these amendments had a good airing in Committee. However, I was unfortunately unable to be present when they were discussed and so I will take this opportunity to say a few words on them—not just for the sake of it, of course, for the Government have come some way to meet us, but because some concerns remain, which have been raised with me by the Special Education Consortium, on which it would be helpful to have reassurances from the Minister.

The amendments relate to Clause 4, which toughens up the arrangements for pupil exclusions. Clause 4 makes significant changes to the appeals process and removes the power from the proposed independent review panel to order the reinstatement of an excluded child except in cases of direct disability discrimination. There are many children with special educational needs who are not the subject of disability discrimination, and the purpose of the amendments is to introduce safeguards into the exclusion process to deal with their case.

Amendment 15 makes provision for regulations to require that where a pupil has been excluded from school for a fixed period on two or more occasions in a 12-month period, or is at risk of permanent exclusion, a head teacher must ensure that there is an assessment of whether the child has unidentified learning needs, that there is a review of the effectiveness of the special educational provision being made if the pupil has identified special educational needs, and that there is a review of the effectiveness of the reasonable adjustments being made if the pupil has a disability.

Amendments 24 to 28 would require regulations to make provision for a number of things: for parents to request a SEN expert to advise the panel on SEN issues; about the information parents are given on their right to request a SEN expert; the skills and qualifications that a SEN expert must have; the ability of the SEN expert to review the needs of the child and whether the school has put the correct support in place; the duty of the school to co-operate with the work of the SEN expert; and the ability of parents to select a SEN expert of their choice.

The Government have moved some way on these issues from where they started in the other place and it is clear that they do not wish to disadvantage children with special educational needs. Indeed, they have published draft guidance on exclusions which recognises the need to protect children with SEN, which I very much welcome. However, there are some outstanding concerns. The guidance is clear that head teachers should, as far as possible, avoid permanently excluding children with SEN. However, the guidance needs to be more specific and detailed at this point. Have all the steps been taken which need to be taken? This could include additional adjustments, critical extra support or other interventions which may play a crucial role in preventing exclusion. The guidance moves too quickly to discussing alternative placements without encouraging schools to consider whether they have answered all these questions. I should be grateful if the Minister could address this point in his response.

The guidance focuses heavily on preventing exclusions of statemented pupils. This is, of course, very important. However, it is important also to bear in mind that some 18 per cent of children, or roughly 1.4 million children, with a special educational need do not have a statement. I ask the Minister to consider extending the guidance to address the needs of children on school action or school action plus. Children on school action plus may have substantial needs but do not have the protection afforded by a statement of SEN. Such children are more than 20 times more likely to be excluded than the rest of the school population and so additional safeguards are clearly needed in their case.

I turn now to the remaining concerns about the SEN experts and the role they could play in advising an independent review panel. I welcome the clarity that the draft guidance brings in relation to the impartiality and expertise of the SEN expert, but retaining parental confidence is key to the success of these reforms and it is with that in mind that I have tabled these amendments again. The school’s role is key here and yet the guidance does not make clear that schools should be required to inform parents of their right to request a SEN expert when their child is excluded. The SEN expert clearly has a vital role to play in protecting the interests of the child and yet the guidance states in terms that the expert’s role does not include making an assessment of the pupil’s special educational needs or making a judgment about whether the school has taken the appropriate steps to meet the child’s needs.

As I have said, I welcome the guidance’s clarity on the need for an expert on special educational needs. However, it remains unclear whether this expert will have the requisite understanding and experience of the disability or SEN in question. I ask the Minister to consider revising the guidance to make it clearer that “expert” should also mean “relevant”.

My final point on the expert relates again to parental confidence. As it stands, the expert will be paid for by the local authority if the child is in a maintained school and by the school if in an academy or free school. While I welcome the guidance stating that local authorities should take reasonable steps to offer a choice of expert and that the expert cannot be connected with the case, it remains a concern that the paymaster should be the institution that the parent is appealing against. If it could be made unambiguously clear that parents could have the expert of their choice, that would surely help to bolster confidence in the independence of the system. I hope that the Minister can give me some reassurance on this point and on my other points as well. I beg to move.

[Lord Touhig]

My Lords, I support the amendment of the noble Lord, Lord Low, who has made a powerful case articulating the concerns that still exist despite the good debate that we had in Committee on exclusions. I do not intend to rehearse the arguments deployed in Committee, save to remind the House that the Government’s equality impact assessment states that 72 per cent of all pupil exclusions from schools in England are youngsters with special educational needs. That 72 per cent is a very high figure, and one we need to keep in mind as we seek to resolve these issues.

Yesterday, I attended the launch of Finished at School, arranged by an organisation called Ambitious about Autism. This document poses the question:

“Where next for young people with autism?”.

It contains a number of case studies and poses questions about post-16 education for youngsters with learning difficulties, particularly with autism. Among its questions, it asks for a clear, legal right to educational support up to the age of 25 for young disabled people. It says that a funding system that gives young people and families more information, choice and support is needed, as is a cross-government focus on outcomes and destinations for young disabled people, and a further education workforce with the skills to support young people with autism to achieve their ambitions. Sarah Teather, the Minister of State responsible for these matters, was present and warmly welcomed the report yesterday. She said that the Government had every intention of living up to the ambitions set out in their Green Paper. All this is to be welcomed.

Before any noble Lord questions how my argument is relevant to the question before us now of exclusions, I will explain. In England, we have 66,000 young people with autism in the 16 to 25 age group. Yet only one young person in four with autism in that age cohort continues their education beyond school. That is why we have to do everything possible to reduce the huge level of SEN exclusions from our schools. For three-quarters of young people with autism, attending school until the age of 16 is the only education experience they will ever have. That is why we have to be so careful about exclusions.

On Amendment 15, as the noble Lord, Lord Low, pointed out, the draft guidance makes some welcome noises on this but the trigger for assessment is not as clear as this amendment would make it. On Amendments 24 and 25, it would appear that parents will be told that they can request a SEN expert of their own but we do not know how this will happen or what information parents will be entitled to receive in order to achieve that.

On Amendment 26, the guidance makes it clear that the SEN adviser should have appropriate training. However, like the noble Lord, Lord Low, I am still concerned that that training should be specific to the disability of the person with SEN being examined. On Amendment 27, the guidance is clear that it will not be the role of the SEN expert to undertake an assessment of needs, which is somewhat disappointing. Finally, on Amendment 28, it will be for the local authority to select the SEN experts for the parents to choose from.

There are still many questions to be asked and answered on the whole issue of the exclusion of youngsters with SEN. I look forward to the response from the Minister, who has demonstrated to me, and no doubt to others across the House, that he is listening. He certainly did that in Committee. I hope he listens to us now.

--- Later in debate ---

[Lord Hill of Oareford]

The idea behind the trials—I think it is based on what has already been happening in Cambridgeshire—is that the budget which currently sits with the local authority to pay for alternative provision would effectively be devolved to schools. Schools in that case would have a very clear incentive not to end up dumping a child in expensive provision but to do their best early on to make the best possible provision they can and seek to avoid exclusion. In Cambridgeshire the number of permanent exclusions fell when it tried this approach from more than 500 a year to fewer than 100. However, the experiences of these authorities also show us that this is not something to be rushed and that it requires careful implementation. Our view would be that we should test the approach rigorously, evaluate it and then legislate.

The point about an automatic trigger was raised by the noble Lords, Lord Low and Lord Touhig. We are seeking to promote early intervention through the use of multi-agency assessments. Following comments made at an earlier stage, we have already made clear in our guidance that schools should consider arranging such an assessment for pupils who display continuous disruptive behaviour. The noble Baroness, Lady Hughes, said that the issue of early intervention was not properly addressed in the draft guidance. I thought we had addressed it but it is draft guidance so I welcome her views on it as I would views from other noble Lords. We have reinforced the importance of multi-agency assessments in the draft I have circulated. I would argue that we should leave the detail of the trigger for such assessments to the discretion of schools. I accept that in a lot of cases two fixed-period exclusions might be an appropriate trigger but in some cases a single serious incident of out-of-character poor behaviour might be sufficient cause for concern.

With regard to allowing independent review panels to be able to reinstate, there are cases—the Government would argue and I think it is a point that has just been echoed by the noble Lord, Lord Sutherland of Houndwood—where sometimes unfortunately exclusion is necessary as a last resort. We want a system which works for the education and welfare of all pupils at a school. It is right that, in some cases, schools should be directed to reconsider their decision to exclude a child. It is also right that a school should retain a level of responsibility towards a pupil, even if that pupil is excluded. However, a directed reinstatement is not necessarily in the best interests of an excluded pupil and, as we heard in Committee and from evidence given to this House and in another place from head teachers, it can have a devastating impact on the morale of the other pupils and staff.

We hope that our system of independent review panels will provide access to a quick, fair and independent process for reviewing an exclusion. However, we have put in safeguards in particular regarding the role of the special educational needs expert. Our revised guidance gives particular emphasis to ensuring the fair treatment of pupils who are most vulnerable to exclusion. I am grateful to the noble Lord, Lord Rix, who sadly is not here today, and to the noble Lord, Lord Low, who I am meeting again tomorrow on this subject. I am grateful to them for the meetings we have had on this issue and to the Special Educational Consortium. I am grateful for the very helpful contributions they have made while we have been developing the guidance.

The guidance makes clear that schools’ duties under the Equality Act not to discriminate against, harass or victimise pupils because of disability need be taken into account when deciding whether to exclude a pupil. It also says that schools must ensure that their policies, such as their behaviour policy, do not discriminate against pupils by unfairly increasing their risk of exclusion. We have retained the existing statutory guidance that, as far as possible, schools should avoid excluding a pupil with a statement of SEN. We have strengthened this position to make it clear that, where a school is considering the permanent exclusion of a pupil with a statement, it should begin a discussion with the responsible local authority, highlighting its concerns about the placement of the pupil in the school and the possible need for an alternative placement. I hope that these discussions would decrease the likelihood of pupils with a statement being excluded. Where a pupil does need to be excluded, we hope it will help support the local authority to ensure that appropriate provision is put in place quickly.

Amendment 17 relates to the governing body review of exclusion. We think that where a pupil is permanently excluded there needs to be a quick and fair process for reviewing this decision and that the process should give proper consideration to a pupil’s SEN. The governing body review provides an appropriate and proportionate first stage for reviewing a head teacher’s decision to exclude.

The revised guidance makes clear that governing body reviews should have access to relevant information about a pupil’s SEN, such as a statement of special educational needs and the outcome of any multiagency assessment arranged by the school. I agree that in many cases an important part of this information would be a report from the special educational needs co-ordinator, but there may be occasions where another member of staff is better placed to provide detailed information on a child’s special needs. I think that requiring information about the pupil’s SEN to be provided to the governing body is absolutely right but I do not want to prescribe precisely who needs to provide it.

Where a pupil is excluded, there must be a quick process for reviewing the decision. As we have said, we think that the governing body provides an appropriate and proportionate first stage for reviewing a head teacher’s decision to exclude. Where a governing body takes the difficult decision to uphold a permanent exclusion, there must be a right for a parent to ask for it to be reviewed by an independent body. Our independent review panels will allow that to happen quickly and will improve on the current system in providing extra help for excluded pupils with SEN. The introduction of an SEN expert offers a significant additional safeguard. The SEN expert would be free to submit written evidence to an independent review panel but they must be present at the review. We propose to place a requirement on independent review panels that, where appointed, they should seek and have regard to the expert’s views.

As regards the detailed points on regulations made by the noble Lords, Lord Touhig and Lord Low, I can reassure them that many of the things they are seeking to place in regulations will be there. Regulations will set out the right for all parents to request an SEN expert and put a duty on schools to notify parents of this right when a governing body upholds a permanent exclusion. We are clear that the expert must be someone with sufficient relevant professional expertise—that point was raised by the noble Lord, Lord Low—to be able to offer expert advice; for example, an educational psychologist. Because we do not want inadvertently to rule out someone who would be suitable for this role in a particular case, we intend that the details of who is eligible to be an SEN expert will be clarified in statutory guidance rather than in regulation, so that review panels have discretion to choose the most appropriate expert in each case. We have had very helpful discussions with the Special Educational Consortium about the sort of person who would be eligible for this role which we are keen to continue.

I agree with the point raised by the noble Lord, Lord Low, that all parties to an independent review panel must have trust in the advice of the SEN expert. This is why we are proposing to make it clear that local authorities and academies should offer parents a choice of SEN expert in order to reinforce their confidence in the appointment. These expectations will be set out in statutory guidance. The guidance also makes clear that where a pupil has identified special educational needs, we expect schools to provide to the panel, and the expert, any relevant information about those needs and the steps that the school is taking to manage them. This includes a pupil’s statement of SEN, the annual review or the outcome of a multiagency assessment. Parents will also be able to submit written evidence explaining if they feel that their child’s special educational needs are relevant when making their case to the review panel.

Parents will have the right to request an SEN expert and the expert will be able to advise the panel on the parent’s case. That could include advising a panel on whether the actions taken by a school to identify or address a pupil’s SEN might be considered reasonable and whether a school might reasonably have been expected to intervene earlier in order to prevent the exclusion. We also propose to include an evaluation of the role of SEN expert as part of a study of the relative benefits between independent review panels and the First-tier Tribunal. This will provide us with the views of all parties on the effectiveness of the role of the SEN expert, including parents and pupils. We will consider the findings of this review in deciding whether there is a need to strengthen the regulations or guidance to ensure that the role is being used effectively.

I am sorry to have spoken at some length but these are important issues and I was keen to set out the Government’s response in as much detail as I could because I know that there have been concerns. I hope I have reassured noble Lords that we are taking steps to support schools to identify and address pupils’ special educational needs and we are committed to the effective use of the SEN expert. We believe that the new process, supported by the revised guidance, provides significant additional safeguards for pupils with SEN. I will continue to seek the input of noble Lords and the Special Educational Consortium in finalising the guidance. As I said, I am meeting the noble Lord, Lord Low, tomorrow and I am sure that we shall discuss the matter further then. With that, and looking forward to that conversation, I ask the noble Lord to withdraw the amendment.

[Lord Low of Dalston]

My Lords, I am very grateful to all those who have spoken, particularly to the Minister for his very full response. It should not have wearied the House as a lot of issues required to be addressed. The Minister has done justice to them in addressing them so comprehensively. In his response he has shown that he has been listening to the debate, as the noble Lord, Lord Touhig, requested. That being the case, it would be churlish not to withdraw the amendment.

The Minister has indicated that quite a lot of what these amendments are asking for will be included in regulations or statutory guidance and that there will be ongoing consultation with noble Lords and the sector about the form of those regulations and the guidance—at least, I take it that that is what there will be ongoing discussion about. The Minister has also shown that he was responsive to the points that were very well made by the noble Baroness, Lady Hughes, about the importance of intervening early. The more we can get that into the guidance, the better. The more we can indicate that the guidance is meant to apply not just to pupils with statements but to other pupils with special educational needs who are at risk of exclusion, the better it will be. However, we can address that issue, along with others, in the ongoing discussions that we will have with the Minister. With that, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.