Education Bill

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 The noble Baroness, Lady Hughes, said that the issue of early intervention was not properly addressed in the draft guidance. I thought we had addressed it but it is draft guidance so I welcome her views on it as I would views from other noble Lords.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.