This is beginning to feel a bit like hard work. I shall speak also to my Amendment 126, which is in this group. I am not quite sure why it is in this group but it is, so I shall speak to it. Clause 33 provides that a local authority is not required to secure the education of a child or young person with
special educational needs in a maintained nursery school, mainstream school or mainstream post-16 institution where it is incompatible with the provision of efficient education for others. This reproduces the wording of the current legislation relating to school education but is not present in the current learning difficulty assessment guidance that covers learners moving to and within post-16 provision. It has been put to me that subsection (2)(b) should be deleted to ensure that colleges and post-16 institutions continue to make the necessary adjustments to include disabled applicants. This includes making adjustments to provisions, criteria and practices, and the provision of auxiliary aids and services.
In the context of post-16 education, the retention of subsection (2)(b) could undermine students’ existing rights and protections under the Equality Act, and provide an excuse for colleges to exclude learners with learning difficulties and/or disabilities on the grounds of cost or inconvenience to other students. In other words, it would interpose a hurdle that does not exist at present in relation to post-16 education. Furthermore, there is an inconsistency in that those learners without an education, health and care plan cannot be refused a place on these grounds. The implication is that a disabled person with a plan potentially has fewer rights than one without. It is not quite clear why subsection (2)(b) is needed when the Equality Act is clear on the requirements around reasonable adjustments.
These arguments clearly have force so far as post-school education is concerned but, thinking about it, they have just as much force as regards school education. In any case, in a Bill which introduces a unified approach for all those aged nought to 25, it seems clear that the language should be consistent across the whole age range. It therefore seems only right to delete subsection (2)(b) altogether, which is what Amendment 123A would achieve.
The purpose of Amendment 126 is to protect a child or young person with a special educational need and ensure that they get the education and support best suited to them. The provision contained in Clause 34(9) would allow a special school, academy or free school to admit a child without a statutory assessment of their needs and without an education, health and care plan. Currently, any child who has special educational needs but who does not have a statement must be educated in a mainstream school. The change that Clause 34(9) would bring about undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as being the most appropriate placement, following a statutory assessment process, and where it is in line with the wishes of the parent.
The draft code of practice suggests that an individual professional, such as an educational psychologist, could provide a report to support a child’s admission to a special academy or free school. This could constitute a diminution in parents’ rights to express a preference for a particular school in the full knowledge of the nature of their child’s needs, as assessed by a range of professionals. Inclusion of this provision seems to devalue the assessment and planning process which sits at the heart of the Government’s reforms. It seems
obvious, too, that any head teacher would want as much information as possible about a new child or young person with a special educational need to be sure that the school could meet their needs.
There is also concern that a placement agreed in this way without an assessment and a plan would provide parents and carers with no entitlement to an annual review or any right of appeal. This provision would also make it easier for those head teachers who are reluctant to accept a child or young person with a special educational need to try to persuade parents that their child would be better off in a special school, thus undermining the principle of inclusion we were talking about last week. Therefore, it seems clear that the process of admission of children and young people with special educational needs to special schools should continue to be based on assessment, as at present. It would be dangerous to dispense with that, as I think would be the result of Clause 34(9). I beg to move.
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