I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Warnock and Lady Wilkins, for tabling Amendment 16A, and the noble Baroness, Lady Howe, for tabling Amendment 34A. I had an extremely helpful meeting with the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, recently, and I am grateful to them for helping me to understand these issues. As noble Lords know, they are, of course, immensely knowledgeable on this matter. They have spoken eloquently about an issue that I know is important to many in this House—inclusive provision for children and young people who have SEN or are disabled. We have had an informed and passionate debate.
Amendment 16A picks up a recommendation from the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, a member of the committee, mentioned. The Joint Committee welcomed the Bill as containing,
“a number of provisions which … enhance the UK’s implementation of some of the relevant rights of children and young people”.
Those include the general principles in Clause 19; the extension of education, health and care plans to young people up to 25; the requirement for academies to be covered directly by the statutory framework for SEN; the duty to provide SEN information to children and young people; the measures to ease transition from children’s to adult services; the explicit reference to assist in preparation for independent living in a local offer; and the provision of direct rights of appeal for young people and the proposed piloting of children’s rights of appeal. However, the Joint Committee felt that including a principle on inclusive provision in Clause 19 would demonstrate the Government’s commitment, under the UN Convention on the Rights of Persons with Disabilities, to the progressive realisation of the right to inclusive education.
I make it clear at the outset that the Government are fulfilling their commitments under the UN convention. The Bill maintains the general principle of inclusion and does so through some of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need and holds a presumption for inclusion in relation to choice of schools and colleges through Clause 33. However, it also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges. That is entirely consistent with the reservation and interpretative declaration that the Government made to Article 24 of the UN convention recognising special schools as part of the general schools system.
Beyond the Bill, as we have discussed in previous debates, local authorities, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to increase access over time
and to make reasonable adjustments to their policies and practices. Indeed, it was this Government, in 2012, who included schools in the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty under the Equality Act. I made a commitment in Grand Committee to look at the scope for improving the links to the Equality Act duties in the SEN code of practice and I am happy to reaffirm that commitment now.
We have previously discussed the inclusive schooling guidance. One of the striking findings in the responses to the Green Paper Support and Aspiration was that nearly half of those who responded to a question about the guidance did not know that it existed. That is why we put the key elements of it into the code of practice. I am happy to consider how the code of practice can be further improved in that regard. In view of all that, we do not believe that it is necessary to add to the principles in Clause 19 to fulfil our commitments under the UN convention. The principles in Clause 19 are designed to underpin the key features of the reforms, placing the views, wishes and feelings of children, young people and parents at the heart of the system and placing a focus on improving outcomes. They apply irrespective of where children and young people are educated.
We have heard in other debates about the important role that specialist provision plays in supporting disabled children and young people and those with SEN. The noble Lord, Lord Low, referred to the importance to parents of having that choice. Amendment 16A could run the risk of being perceived as a threat to specialist provision and as encouragement to local authorities not to place children and young people in specialist provision where that is appropriate for meeting their needs and where parents wish it, and could threaten the viability of high-quality provision for children and young people with SEN. I know that that is not in any way the purpose of the amendment, but it is an example of the kind of balance of arguments that we have to weigh.
The Government take very seriously their commitment to the convention. In addition to the provisions in the Bill and the government amendments on disabled children and young people that we will be debating later, we have taken a number of practical steps to build the capacity of mainstream schools and colleges to support children and young people who have SEN or are disabled. I spoke about these in Grand Committee. The noble Lord, Lord Low, referred to them as “soft measures”, but I would not describe them as such. They are certainly extensive. I will not go through them in detail, because I know that noble Lords have heard this before. However, we have invested considerable sums of money in training: there are over 10,000 new SEN co-ordinators, a number of schemes to develop the training of SEN, we have made grants to the Institute of Education, and we are involved in many other projects.
Chapter 6 of the draft SEN code of practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need
additional support and provide that support as quickly as possible. We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and we recognise the key role played by the SEN co-ordinator in this and in other ways. In addition, as noble Lords know, the Bill now includes a new clause on supporting children with health conditions. Noble Lords will see that a number of government amendments have now been tabled to include disabled children and young people with SEN in the scope of a number of key provisions in the Bill. I will speak about those amendments shortly.
On Amendment 34A, tabled by the noble Baroness, Lady Howe, I understand her concerns and those of other noble Lords about the provisions in Clause 34(9), but I hope to reassure them. Clause 34(9) would enable a child or young person with special educational needs but without an EHC plan to be admitted to an individual special academy or special post-16 academy whose academy arrangements permit this. The admission of children or young people without EHC plans to special academies or special post-16 academies would be limited to those academies where the Secretary of State for Education had specifically agreed to permit that in the funding agreement in relation to specific types of children.
I reiterate what I said when we debated this issue in Committee. This is not a blanket policy and it is also definitely not part of any dark plan. On the contrary, the Government’s intention is to facilitate innovative new approaches and provision for the benefit of children and young people with SEN. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy and would consider its educational merits and viability. Indeed, we have approved 16 free special schools. All are able, as things stand, to apply to the Secretary of State to have the competence within their funding agreements to admit non-statemented pupils. That is the status quo. Only one has so applied. They were approved to admit, on a temporary basis only, children with autistic spectrum disorder or with specific communication and language difficulties, but as far as we know none has been so admitted.
Concerns have been expressed by the noble Lord, Lord Low, the noble Baroness, Lady Howe, and others that children and young people might be forced into special provision and parents coerced by local authorities into placing their children in special schools. We will ensure safeguards against that are in place. First, the relevant academy’s funding agreement must stipulate that the special academy or special post-16 academy could admit only children or young people without plans who had a particular type of SEN set out in the agreement. Changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority, by parents, and a lack of demand for statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the academy only if their parents or the young person had applied to go to it. Thirdly, the child or young person should have those particular needs and their admission
should be supported by a relevant professional opinion, such as that of an educational psychologist. Of course, parents of young people will continue to have the right to ask for a statutory assessment of their child’s needs to be undertaken and a right of appeal to the tribunal if the local authority decides not to carry one out. The academy would also have to adopt fair practices to such admissions in line with the principles of the school admission code. We would take very seriously indeed any instances where these freedoms were being abused. Very significantly, the new secondary accountability, the best eight progress measures, will become the main measure by which we assess the performance of all maintained schools and academies. This new approach will strip away the previous perverse incentives and will hold schools to account for the progress made by all their pupils, not just blunt measures of absolute attainment at grade C. This will move schools that have focused too much on those pupils who can achieve a C grade to focus on the progress of all their pupils and should particularly benefit SEN pupils in those schools.
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There can be no greater demonstration of the Government’s commitment to reducing exclusion than our school exclusion trial, a very hard measure, taking place in 11 local authorities with approximately 180 schools participating. This is aimed at schools taking more responsibility for pupils at risk of exclusion and ranges from schools committing to avoid any permanent exclusion, as in Darlington, Hartlepool, Redcar and Cleveland, to, in Wiltshire, the responsibility for permanently excluded children transferring from the local authority to the school.
Clause 34(9) is designed to improve provision for those without plans and reflects the Government’s general desire to encourage innovation and promote greater choice and flexibility in their free schools and academies programme. We will make sure that it contributes to that improvement and that the above safeguards are in place to address the concerns expressed by noble Lords.
I fully understand the objectives of the amendment. I hope I have been able to persuade noble Lords of the Government’s commitment to improving education provision for all children and young people and specifically to fulfilling their obligations under the UN Convention on the Rights of Persons with Disabilities and of the case for keeping the principles in Clause 19 as they are. I hope, too, that I have been able to reassure noble Lords that the provision in Clause 34(9) is there to encourage innovation and promote greater choice and flexibility for the benefit of children and young people with SEN, and that the safeguards we have put in place will guard against any potential problems envisaged. In view of these assurances and the commitment I have given in relation to strengthening the guidance in the code of practice, I urge the noble Lord, Lord Low, to withdraw the amendment.