Education Bill

As noble Lords know, the clause changes the appeals process for pupils if they are permanently excluded. It removes the ability to appeal to an independent panel with the power to reinstate a pupil. It does not make any provision for, and does not seem to recognise, the fact that the vast majority of children who are excluded have a special educational need or a disability. As noble Lords have already alluded to, particularly the noble Lord, Lord Touhig, this group of amendments focuses on trying to mitigate the even greater impact of these proposals on SEN and disabled children by proposing assessments and reports at various stages in the process that the Government are now putting forward. I support all the amendments in principle. I am speaking to those from my noble friends and me in this group—Amendments 36, 39 and 54—the last of which is slightly different. The noble Lord, Lord Storey, was right to alert us to two things. First, there are the traumatic and possibly long-term consequences for a child of a permanent exclusion; it can stay with them for many years and affect their job prospects as well as their academic record. Secondly, there are the difficult decisions that schools have to make, particularly those working with difficult children and in challenging communities. I accept that, but I would also say that in taking these decisions it is important that the process demonstrates to parents, to all the pupils and to staff that there is a process of natural justice—the noble Baroness, Lady Jolly, referred to this. Whatever the difficulties that schools are facing, is it right that there should be a process in which there is no opportunity for a decision of an independent tribunal that says, ““Actually, we think that this decision was the wrong one”” and reinstates the child? I pose that question because it seems to be an important one. What are we saying to children and parents if, after a permanent exclusion, we push them through that process but they do not have the redress that we would all have in any other situation about a decision of such seriousness that affected our future? We talked before about messages, and this seems to be really the wrong message to give to everyone, not just to the children concerned. We heard a great deal about the evidence that children with special educational needs are grossly disproportionately represented in the figures for permanent exclusions. With respect to the Minister, the issues that he has to address with regard to this group of amendments are as follows. The evidence now is that, even with the power of reinstatement, and even though it is rarely used—it is used in only 10 per cent of the cases that go to appeal; there are only 60 cases a year out of more than 600 that appeal—schools are still disproportionately excluding children with special educational needs and disabilities. Therefore, what will be the effect of removing even that small check and balance, which will be in the back of a governing body’s mind when it is making this decision? One can conclude from the evidence before us of what happens next only that the removal of the power to reinstate will, if it does anything, compound the position of children with special educational needs and disabilities, making it more likely that they will be excluded permanently. That is why noble Lords have tabled this group of amendments, including those in my name and that of my noble friend—to mitigate that effect. Amendment 36 will require a responsible body to consider a report on the pupil from the special educational needs co-ordinator when considering whether to exclude. Amendment 39 will require a special educational needs assessment of every child at the point of permanent exclusion to go before the review panel—that is, the next stage when a child has asked for a review. A great deal of concern has been expressed by several important bodies, including the Education Select Committee, the Joint Committee on Human Rights and the Administrative Justice and Tribunals Council, which said: "““It is not entirely clear from either the White Paper or … the Bill what the position is regarding exclusion appeals which raise disability discrimination issues””." By removing the appeal panels and replacing them with review panels that lack the power to reinstate, there is a clear risk that children with special educational needs will be even more disproportionately excluded. I am aware that the disability-related permanent exclusion cases, and those of pupils with statements, can be heard by a special educational needs and disability tribunal—a first-tier tribunal. However, I ask the Minister: what about children with special educational needs who are not statemented, or those whose needs have not yet been identified at all? There is a big gap there. There are concerns—expressed by the Alliance for Inclusive Education, for example—that parents will be required to jump over another legal hurdle of proving that their child is disabled to reach a level of appeal at the tribunal where they might get an impartial view, with the power to reinstate, from a trained solicitor or someone legally trained. The review panels will consist completely of lay people with no legal background, which is another important consideration. I know that the Joint Committee on Human Rights recommends that consideration be given to the suggestion of the Administrative Justice and Tribunals Council that all appeals should go to the first-tier tribunal. Is that sensible and reasonable? Is that the course that the Government want parents to take? Should we send all appeals to that tribunal, rather than having, at a closer level to the school, a proper independent review panel? Amendment 54 relates to the absence of checks and balances. It would require schools to retain financial responsibility for children that they exclude permanently, as well as responsibility for their future educational outcomes. I know the Government are piloting this approach; it was referred to in the White Paper. However, I should like to know from the Minister whether the Government need legislative power to bring in this provision, assuming the pilots make it look feasible. If they do, would it not be a good idea to include it in the legislation that is before us at the moment, at least on an enabling basis? Such a responsibility to the educational future of a child, both financially and for the outcomes that they achieve, would provide another useful psychological check in the minds of the members of the governing body when they consider permanent exclusion, rather than the school simply being able to pay a fine and get rid of children who are difficult to deal with. In speaking to my amendments, I also support the other amendments tabled by noble Lords in this group.