My Lords, in moving Amendment 153 I shall speak also to Amendments 157 and 159. In doing so, I declare my interest as president
of the Independent Schools Association, a body representing the heads of some 300 smaller and less well known independent schools that form part of the Independent Schools Council, of which I was once the general secretary. The amendments are short and straightforward, and I do not need to detain the Committee long in outlining them.
The purpose of Amendment 153 is to remove all doubt and achieve absolute clarity on a crucial point that seems to be generally agreed in actual practice; namely, that parents and young people will be able to make representations for any independent school to be named in an EHC plan, not just those on the list approved by the Secretary of State under Clause 41. The Explanatory Notes to the Bill expressly state at paragraph 216 that:
“Parents and young people will … be able make representations for an independent school or post-16 independent specialist provider not included in this list as is the case under the current legislative framework”.
My noble friend Lord Nash, in a letter to Mr Barnaby Lenon, the current chairman of the Independent Schools Council, also stated:
“I can assure you that parents and young people will still be able to make representations for independent schools that are not on the list approved under clause 41 of the Bill, and the local authority will … need to consider those representations”.
Finally, I shall quote from the recently published draft SEN code of practice, to which much reference has been made in these debates:
“Parents and young people may also make representations for places in non-maintained early years provision or at independent schools or Independent Specialist Providers … that are not on the list mentioned in (f) above and the local authority must consider their request”.
All that seems clear enough; indeed, complete unanimity could hardly be more clearly expressed, and yet Clause 38(3)(f) provides that the right of parents and young people to make representations for an independent school can be exercised only in respect of,
“an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval)”.
That list, of course, does not include all independent schools so the unanimity so clearly expressed in the Explanatory Notes, in my noble friend’s letter and in the draft SEN code of practice is not reflected in the Bill itself. That is the point.
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More than 500 schools affiliated to the Independent Schools Council currently have pupils with statements of SEN. It surely needs to be made absolutely clear that parents and young people will have a continuing right to request that these excellent schools be considered for EHC plans. That is what Amendment 153 would achieve. The Bill and the code of practice to be issued under it should surely be couched in exactly the same terms. I hope that my noble friend will agree.
Amendments 157 and 159, which relate to Clauses 39 and 40, arrive from the duty to admit created by Clause 43. This duty has aroused considerable concern in many specialist independent schools that are organised
to cater wholly or mainly for pupils with SEN. Under these amendments, admission would take place with their consent, which would provide such independent schools with the assurance that they would like to have: that they can join the approved list under Clause 41 without damage to their position of independence and their freedom of admission.
In the absence of such amendments, I have been told clearly that a number of ISC schools are likely to decide not to apply to become approved under Clause 41. Their decision would be taken with considerable reluctance because, if that happens, it could lead to the loss of excellent specialist provision for local authorities and, as a result, the loss of very valuable teaching and care for children with particular needs, which in some specialist cases would not be readily available at the required level elsewhere. So a difficulty exists here, which I hope that the Minister will feel able to address.
In this context, it is perhaps worth noting that independent schools often have pupils from many local authorities. The ISC specialist schools tell me that they can have statemented pupils from up to 25 local authorities at any one time. Ceding too much control over admissions to local authorities could thus have a much greater impact on specialist independent schools than on those in the maintained sector, which normally deal with just one local authority. Amendments 157 and 159, which provide that local authorities should secure the consent of independent specialist schools before they are named, will address these concerns in full. I beg to move.