My Lords, I have three amendments in this group, two of them on equality rights. I shall start with Amendment 125, which is a probing amendment regarding a concern of the Association of Educational Psychologists. There are two more amendments later, but I want to deal with this amendment because in answering the Minister may be able to give reassurance.
Currently any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps ensure that children and young people are not inappropriately placed in special schools. The concern is that Clause 34(3) allows special academies, including free schools, to admit children or young people permanently without them having had their special educational needs statutorily assessed or an EHC plan having been put in place for them. This proposal seems to undermine the principle that a mainstream school must be able to make provision for all children without a statement or plan and for most children with a statement or plan.
Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice, such as a report from an educational psychologist, the concern is that there is no formal role for the local authority in this process. The worry is that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young persons with EHC plans, extremely difficult.
If this proposal went through, there would be a danger that mainstream special schools would be incentivised to persuade parents that their child would be better off in a special school just because they do not want them in their schools. This would take us back to the situation that existed before the Education Act 1981. There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this clause remains, I would question the point of mainstream places within a special school.
I fear that this proposal would result in medical labels determining whether a child secures a place in a special academy. If a special academy had been set up for a particular type of SEN—for example, SpLD or ASD/Asperger’s—would it result in an increase in the number of children being diagnosed with that condition? How can the Government ensure that there is a framework process so that inappropriate placements do not occur?
There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would educational psychologists’ views be protected and advocated? How would places be allocated within school year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan
places? The policy also begs the key question what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they are making adequate progress?
This amendment has been tabled because it is hoped that the Minister will look again at the proposals and help to allay serious concerns in the SEN sector that this clause could result in children and young people being inappropriately placed in special schools. Ideally, the Association of Educational Psychologists would like to see the clause amended so that special academies are not able to admit children and young people without an EHC plan. I hope that when the Minister replies he will be able to dispel those doubts.
I turn now to Clause 33, which relates to children and young people with education, health and care plans, and Clause 34, which relates to children and young people with special educational needs but no education, health and care plans. Amendment 124A seeks to insert a new subsection in Clause 33 which states:
“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.
Amendment 126A seeks to insert a new subsection in Clause 34 which states:
“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.
The amendments are about ensuring that schools and local authorities are fully aware of the reasonable adjustments duty owed by schools to disabled pupils where the child has special educational needs. Some disabled pupils will have special educational needs and may be receiving support via school-based special educational needs provision or have an educational, health and care plan under the new arrangements. Just because a disabled pupil has special educational needs or an education, health and care plan, it does not take away a school’s duty to make reasonable adjustments for them.
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In practice, many disabled pupils who also have an education, health and care plan will receive all the support that they need through the special educational needs framework, and the school will have to do nothing extra. However, some disabled pupils will not have special educational needs, and some disabled pupils with special educational needs will still need reasonable adjustments to be made for them in addition to any support they receive through the special educational needs framework. The duty to make reasonable adjustments requires a school to take positive steps to ensure that disabled students can fully participate in the education provided by the school and that they can enjoy the other benefits, facilities and services that the school provides for pupils.
Many reasonable adjustments are inexpensive and will often involve a change of practice rather than the provision of expensive pieces of equipment or additional staff. Many of the reasonable adjustments that schools
are already making for disabled pupils undoubtedly include the use of some auxiliary aids, such as coloured layovers for dyslexic pupils, pen grips, adapted PE equipment and adapted keyboards and computer software. These adjustments are often low cost and easily available—indeed, some of them were mentioned by the noble Lord, Lord Addington. For example, a disabled pupil has a statement of special educational needs and attends a mainstream secondary school. Through her statement, she receives two hours a week of specialist teaching and uses an electronic note-taker in lessons. Since the support that she requires is provided through her statement, the school does not have to make reasonable adjustments by providing these auxiliary aids and services for her. A second example would be where a disabled pupil at an infants’ school has diabetes and requires daily support with reading blood sugar levels and insulin injections. He is not classified as having special educational needs and therefore receives no support through the SEN framework. He is, however, disabled, and if the lack of daily support places him at a substantial disadvantage, the school is under a duty to make the adjustment of providing support if it would be reasonable to do so.
These are two important amendments, and I very much hope that the Minister will respond sympathetically and agree with them. No doubt, it will again be a question of adapting what is required to fit within the Government’s framework.