My Lords, I shall also speak in support of Amendment 157B, which was tabled by the noble Baroness, Lady Howe, and is a slightly rejigged version of Amendment 157A, which is somewhat improved, at the suggestion of the DfE, by putting the inserted words at the end of Clause 39(4) rather than at the beginning. I also added my name to the noble Baroness’s Amendment 219, but I shall not say anything about that, except to signify my support because there will not really be time, and in any case I have to leave her something to talk about.
Amendment 65D enshrines a recommendation of the Joint Committee on Human Rights. Under the UN Convention on the Rights of Persons with Disabilities, states undertake to,
“ensure an inclusive education system at all levels”,
and are required to ensure that:
“Persons with disabilities can access an inclusive … primary … and secondary education on an equal basis with others in the communities in which they live”.
One of the principal obligations undertaken by states under the convention is:
“To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the … Convention”.
In relation to the right to education, states are also under an obligation to,
“take measures … with a view to achieving progressively the full realization of these rights”.
When the UK ratified the convention—in 2009, I think it was—it entered a reservation and interpretive declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of progressive realisation of the right to inclusive education. Clause 33 retains the current statutory presumption in favour of education in a mainstream setting, but this has been the subject of continued debate and considerable litigation. The frequency of such litigation about the presumption in favour of mainstream education suggests that the current state of the law and guidance leaves considerable scope for uncertainty. If scope for such uncertainty exists, the UK’s obligation under the UN convention to take steps to increase access to mainstream education for people with disabilities might require the Government to remove the uncertainty by clarifying the law and/or the relevant guidance.
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The Government believe that the provisions in the Bill are compatible with the UN convention. However, they accept that the current guidance on inclusion contained in the DfE guidance Inclusive Schooling is not well known. They promised in their response to
the JCHR to include such guidance in the new SEN code of practice. I am pleased to say that that has now been done in the latest version of the code of practice, which was issued for consultation on 4 October, although I am sorry to say that the consensus seems to be that it lacks the practical detail that the JCHR was looking for.
The Government do not believe that it is necessary to include increasing access to mainstream provision in the general principles in Clause 19 in the way that this amendment would provide for. However, as the Bill stands, inclusion is not referred to anywhere in the legislation. The Minister told the Public Bill Committee in the other place that this was deliberate because the Government want to move away from what Robert Buckland MP described in Committee as,
“the rather sterile binary debate about inclusion versus specialism”.—[Official Report, Commons, Children and Families Bill Committee, 21/3/13; col. 462.]
In the view of the JCHR, however, the commitment to increase access to mainstream schools and staff, being the subject of an international treaty obligation that the Government accept, should be expressly stated in the general principles clause at the beginning of Part 3. It considered that a form of words could be found for giving expression to such a general principle that avoided the crude binary distinction between inclusion and specialism that the Government seek to avoid. It recommends that Clause 19 should be amended to include an additional general principle that follows closely the language of the UK’s interpretive declaration to Article 24 of the UN convention. The purpose of Amendment 65D is to give effect to this recommendation. The JCHR concluded at paragraph 66 of its report:
“Under Article 4(1)(a) of the Disabilities Convention the UK has undertaken to adopt all appropriate legislative measures for the implementation of the rights recognised in the Convention. The inclusion of such a general principle on the face of the Bill would in our view be an appropriate legislative measure for the implementation of the right to inclusive education in Article 24 of the Convention”.
I turn to Amendment 157B. It can probably be understood best if we look at the background in the current legislation. Sections 316 and 316A of the Education Act 1996 which, until the Bill is passed, is the codified legislative framework governing special education, provide a strong qualified right to inclusion in mainstream education where the parents want it. That can be defeated in relation to mainstream as a type of provision only if the placement of the child would be incompatible with the efficient education of other children and there are no reasonable steps that can be taken to remove that incompatibility at all schools in the local authority’s area.
Likewise, in relation to a particular school, the presumption in favour of mainstream falls away only if the placement of the child would be incompatible with the efficient education of other children and there are no reasonable steps that can be taken to remove that incompatibility in that school. However, that does not necessarily get the child a right to a particular school place. That is still dealt with for maintained schools under paragraph 3(3) of Schedule 27
only. A request for a maintained school place, mainstream or special, must be complied with unless that would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or if it would be incompatible with the education of other children or the efficient use of resources.
However, there is no equivalent of the “reasonable steps” obligation that exists in relation to mainstream under the Education Act or arising under the Equality Act. That can lead to each school arguing that it would be incompatible in the Schedule 27 sense. Overall, that can greatly cut down the ability of a parent in that situation to get the particular mainstream school that they want for their child, even if in theory they can establish a right to mainstream as a type. In some cases, it can even leave children seemingly without any school place at all. Thus, in theory there is a right to a mainstream school, but in practice no school may be willing to take the child.
The Bill helpfully rationalises the legislative framework that I have just described by bringing the interlocking provisions of the Education Act 1996 together in Clause 39 and extending them to mainstream academies. Unfortunately, however, what I have called the “reasonable steps” obligation, which provides that a parent’s request can be resisted only when there are no reasonable steps that can be taken to remove the objections to the child’s admission on specified grounds, has been completely removed. In my view, that is not the right way to achieve consistency between Sections 316 and 316A and the Schedule 27 limb of the Education Act 2096. The better way in which to achieve that consistency would be to provide that the “reasonable steps” obligation should apply to both the unsuitability and the incompatibility limbs of Article 39(4). The amendment would achieve that. It would strengthen the ability of parents to get not merely a mainstream place but also the mainstream place of their preference. I beg to move.
Baroness Howe of Idlicote: My Lords, as the Committee will have heard, even the noble Lord, Lord Low, has grown a little exhausted from the amount of speaking that he has had to do. I am sure that he is pleased to hand over to me for the final bit of this group, which has been reconstructed in a very impressive way. My Amendment 219 is as follows:
“Insert the following new Clause … Inclusive and accessible education, health and social care provision … In exercising a function under Part 3, a local authority and NHS bodies in England must promote and secure inclusive and accessible education, health and social care provision to support children, young people and their families … Regulations will set out requirements on an authority and its partner NHS commissioning bodies to promote and secure inclusive and accessible education, health and social care provision in its local area, in particular through … the planning … the design … the commissioning or funding … the delivery; and … the evaluation, of such services”.
It seeks to put in place a clear and unambiguous framework to ensure that local authorities and NHS partners deliver inclusive and accessible health and social care provision. The amendment was carefully drafted to ensure that local authorities and the NHS
have to think proactively about inclusion and accessibility as a fully integrated part of the commissioning and delivery process.
This amendment also ensures that having considered the best shape of inclusive, accessible services for disabled children and young people, local authorities and the NHS should then secure this provision. Existing provision for disabled people is marred by the fact that services are rarely designed to meet the needs of disabled people and young children from the start. Rather, provision is retrofitted for access for disabled people, often resulting in badly delivered or compromised services. If services are poorly designed or continually adjusted, it prevents them securing the outcome that would most benefit disabled children and young people. Most importantly, this amendment is comprehensive; it seeks to embed the principle of access and inclusion throughout local authorities and NHS processes in England from planning to commissioning to delivery and, finally, ensures that such services are robustly evaluated to drive improvements consistently.