I thank noble Lords for their amendments on inclusive provision. This is the second debate that we have had on the principle of inclusion. Today’s debate has focused on how decisions are made about where individual children and young people with EHC plans are taught. As I said in responding to our earlier debate, our aim with this Bill is to build on what has gone before and to create a new framework that improves
both support for children and young people so that they achieve better outcomes and choice for parents and young people.
I will take Amendments 123A and 124, from the noble Lord, Lord Low, and the noble Baronesses, Lady Hughes and Lady Jones, together, as they both relate to the factors that local authorities should take into account when naming an education setting in a child or young person’s EHC plan, where no request has been made for a particular institution or the parent or young person’s request for one has not been met. The statutory provisions in the Bill are designed to ensure that a mainstream place is considered thoroughly and properly, recognising that, with the right support, children and young people with special educational needs are successfully supported in mainstream settings. They also recognise that there will be occasions where a child’s inclusion in a mainstream setting would significantly impact on the education of others, whose interests should also be safeguarded. This could occur, for example, when the extremely challenging and disruptive behaviour of a child or young person could not be managed. The provision for local authorities to consider the efficient education of others is important in this respect.
I understand concerns about this condition being used indiscriminately. Clause 33(3) and (4) guard against this. A local authority can only rely on it if there are no reasonable steps that could be taken to prevent the placement of the child or young person being incompatible with the efficient education of others. In section 7.11 of the draft SEN code of practice, we set out a number of examples of reasonable steps that can be taken to support inclusion. I believe that provision on meeting the specific needs of the child should not be the preserve of a single clause. It is at the heart of Part 3 and is reflected in Clause 19 on general principles, Clause 36 on assessments and EHC plans, Clause 42 on duties to secure provision in EHC plans and Clause 62 on the duty on schools to use their best endeavours to meet children’s needs.
Regarding the concern of the noble Lord, Lord Low, that the Bill gives FE colleges a get-out clause by allowing them to refuse entry to disabled students that they previously would have accepted in line with their duties under the Equality Act, I can assure noble Lords that the Equality Act 2010 will continue to apply in full to colleges, and that they must continue to make reasonable adjustments to support the participation of disabled young people. Nothing in this Bill overrides these very important duties imposed by the Equality Act.
We believe that the principle behind Clause 33 is the right one. Young people with EHC plans should have the right to be educated in a mainstream setting if that is what they want. This Bill, for the first time, gives young people the right to say where they want to study, by requesting that a particular school or college is named in their EHC plan.
I understand the motivation for Amendments 124A and 126A from the noble Baroness, Lady Howe. During our helpful debate on disabled children and young people last Wednesday, I made it clear that we had
drawn attention to the Equality Act duties in the SEN code of practice, in Chapters 1 and 6, and referred to other relevant guidance on those duties. We recognise the importance of making appropriate links between SEN and the Equality Act duties in the code of practice, and in last Wednesday’s debate I undertook to look again at the scope for improving the draft code of practice on this. I hope that that reassures the noble Baroness, Lady Howe.
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I turn to Amendment 125 in the name of the noble Baroness, Lady Howe, and my noble friend Lady Sharp. The provision in Clause 34(3) is designed to allow children and young people with special educational needs who do not have an education, health and care plan to be educated in an independent school, non-maintained special school or independent special post-16 institution where someone other than the local authority or the Secretary of State—most likely the child’s parents or the young person themselves—makes the arrangements and meets the costs. I am concerned that Amendment 125 would remove that possibility and deny those without EHC plans the chance to be taught in such settings where it was their wish and public funds were not involved. I assure the noble Baroness that there is no dark plan here. We are merely trying to expand provision and choice. Choice for parents and young people is essential, and I do not wish to restrict that.
I thank the noble Lord, Lord Low, for tabling Amendment 126 and enabling us to debate the provision in Clause 34(9). This provision would enable a child or young person with SEN but without an EHC plan to be educated in a special academy, special free school or special post-16 academy whose academy arrangements permitted this. It is intended to allow some flexibility in the application of the general principle of inclusion for children and young people with special educational needs who do not have an EHC plan.
The admission of children or young people without education, health and care plans to special academies or special post-16 academies would be limited to those where the Secretary of State for Education had agreed to permit this in their funding agreement. The Government’s intention is to facilitate innovative new approaches and new provision. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy, considering its educational merits and viability.
It is important for noble Lords to note that a child or young person without an EHC plan would be placed at such an institution only if their parents or the young person themselves requested it. Funding agreements would stipulate that the special academy or special post-16 academy could admit only children or young people with the type of SEN for which they were designated and that their admission should be supported by relevant professional opinion, such as that of an educational psychologist. The academy would also have to adopt fair practices and arrangements in accordance with those in the school admissions code for the admission of children without an EHC plan. Therefore, this is not a blanket policy. It is
designed to improve provision for those without plans while putting safeguards in place to address the concerns expressed by the noble Lord, Lord Low, and others.
Concerning the point raised by the noble Lord, Lord Low, that the proposal to allow special academies and free schools to admit children without EHC plans will encourage schools to turn away children with SEN, no pupil should leave the roll of their school unless they are either permanently excluded or their parent wishes them to move to a different school. For that reason, no academy or indeed any school will be able to use the new provisions in this way. The regulations and statutory guidance on exclusions apply to academies and maintained schools. Therefore, if a school or academy wishes to exclude a child, it must follow proper statutory processes, and we will take a very firm approach with any school abusing those processes. Also, knowing, as I do, the sort of people who are responsible for running academies, I do not believe that this approach is one with which they would wish to be associated. Certainly in my own school, we did not believe in exclusion other than in absolute extremis which, thankfully, in more than five years, we had to resort to in only a couple of cases.
We have had a lively and interesting debate. The measures in the Bill aim to improve outcomes for all children and young people with special educational needs wherever they are educated. The measures in the Bill reflect the principle that mainstream education is right for most children and young people, and they seek to improve choice and safeguard appropriately the interests of other children. As I said before, I would be happy to have further discussions with noble Lords on these issues if that would be helpful. In the mean time, I hope that, in view of the assurances that I have given, the noble Lord will feel able to withdraw his amendment.