My Lords, this group of amendments concerns independent specialist provision. I thank all noble Lords who have spoken in this debate. I particularly thank my noble friend Lord Lexden for his Amendments 153, 157 and 159, which seek to ensure that independent schools, including those specially organised to cater for children with special educational needs, continue to play an important part in SEN provision.
Currently, parents can request that a maintained school is named in a statement of special educational needs. The local authority is then under a qualified duty to name that school and, if so named, the school has to admit the child. The Bill extends to young people the right to ask for a particular institution to be named in an EHC plan and the coverage is extended to a wider range of institutions. Parents or young people will also be able to ask for an academy, including a free school, a further education or sixth-form college, a non-maintained special school or an independent institution approved under Clause 41 to be named in an EHC plan. The local authority will then be under the same qualified duty to name the institution and the institution will be under the same duty to admit the child or young person. For this change to be of real benefit to parents and young people, it is important that, when a parent or young person requests one of these institutions, the local authority is under a qualified duty to name that institution in the EHC plan and that the institution is under a duty to admit the child or young person.
Turning to Amendment 153, I understand my noble friend’s desire to ensure that parents and young people can ask for any independent school to be named on an EHC plan and not just those on the list under Clause 41. I reassure my noble friend that parents and young people will be able to make representations for any independent school, and the local authority must consider their request. In doing so, it must have regard to the general principle in Section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Paragraph 7.11 on page 111 of the draft SEN code of practice makes this clear. Of course, the local authority would not be under the same conditional duty to name the school in the EHC plan as it would in the case of an institution approved under Clause 41, and the school would not be under a duty to admit the child or young person.
My noble friend’s amendment would place local authorities under a duty to name an independent school in an EHC plan with no guarantee that the independent school would admit the child or young person, leaving the local authority unable to fulfil its
statutory duty to secure the special educational provision in the plan. As we have heard many times from noble Lords in this debate, it is important that children, parents and young people are clear about what they are entitled to. This is key to their confidence in the new system.
Turning to Amendments 157 and 159, I reassure my noble friend that Clauses 39 and 40 require the local authority to consult the institution which might be named in an EHC plan, including an independent special school or independent specialist provider approved under Clause 41. This will allow meaningful discussions, especially if a school or college feels that it cannot make appropriate provision to meet the pupil’s needs. After this consultation, the authority will name the institution that it feels is appropriate. If it is decided that an institution approved under Section 41 is appropriate and that institution is named in the EHC plan, the institution is under a duty to admit the child or young person. It is important to remember that only those institutions that have chosen to apply to be approved under Clause 41 and are subsequently approved will be under such a duty.
Amendment 158, tabled by the noble Baronesses, Lady Hughes and Lady Jones, and the noble Lord, Lord Touhig, seeks to protect the right of children, young people and their parents to choose the school or institution named in their EHC plan. I agree with the intention behind the amendment—the importance of a person-centred system is at the heart of our reforms. The Bill places specific duties on local authorities to consult a child’s parents or a young person while drawing up an EHC plan. Clause 38 requires the local authority to send the draft plan to the parents or young person and to make clear their right to make representations about its contents, including the right to request a particular school or institution. In the event that a parent or young person is not satisfied with the school or institution named in their EHC plan, they have recourse to mediation and an independent tribunal.
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The Bill makes the local authority statutorily responsible for producing and delivering EHC plans and for securing the special educational provision specified in them. Although I agree that the child, their parents or the young person should be at the centre of all decision making, the noble Baroness’s amendment could make it impossible for the local authority to fulfil its statutory obligations if a parent or young person refused to accept the school or institution named in the plan. As noble Lords will have heard me say before, the focus of our reforms is that decisions should be made collaboratively, but the ultimate responsibility for securing support is with the local authority.
I turn now to Amendment 161 and the questions raised by the noble Lord, Lord Touhig. Clause 41 and the regulations made under it allow the Secretary of State to approve independent special schools and independent specialist colleges to be included in a published list. This clause is not an approval process for the institution per se. The majority of institutions
which are approved under Clause 41 will already exist. An institution which is removed from the list will not be closed down or have funding withdrawn. Children and young people may still attend the institution and may ask to have it named in an EHC plan. However, the local authority will not be under a conditional duty to name the institution; it will have to agree to do so. It will also need to seek the institution’s consent, since it would not be under a statutory duty to admit the child or young person. Since this is a limited, enabling clause which does not affect the operation of an institution, we do not believe it is proportionate or necessary to set out a process for appeals. I hope this reassures the noble Lord. The list will be kept up to date so that parents and young people can make informed decisions about the range of specialist provision available to them. It does not seem appropriate for this to be prescribed by regulation.
My noble friend Lord Lexden referred to a letter I recently sent to the Independent Schools Council in which I said that draft regulations made under Clause 30 will ensure that a link to the list of approved providers is included in the published local offer. Regulation 13(1)(a) of the draft assessment and plan regulations requires local authorities, when they send a parent or young person a draft EHC plan, to advise them where they can find information about the schools and colleges that are available for the child or young person to attend. This would include institutions on the list produced as a result of Clause 41 and other independent schools catering for children with SEN.
I hope that my response reassures noble Lords on the points they have raised during the debate. I therefore urge the noble Lord to withdraw his amendment.