House of Lords, Third Reading of the Education Bill,
Wednesday 3 July 2002

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Special Educational Consortium: an amendment to Clause 2 to secure the key duties of school governing bodies and LEAs towards children with special educational needs

After Clause 2 subsection 5 insert:

No order under this section shall confer on the applicant exemption from any of the provisions determined by:--

1. s321 of the Education Act 1996 (the duty to identify children with special educational needs as defined by s 312 of that Act);
2. s317 of the Education Act 1996 (the duty of governing bodies of schools to use their best endeavours to meet the needs of pupils with special educational needs);
3. s323 of the Education Act 1996 (the duty to assess children's special educational needs, when necessary);
4. s324 of the Education Act 1996 (the duty to make and maintain statements of special educational needs, when necessary);
5. s331 of the Education Act 1996 (the duty to assess and provide for children under 2 years of age).

The amendment aims to secure for the future the legal safety-net for children with special educational needs. This safety-net was created by certain duties in the 'landmark' Education Act 1981. These duties, now part of the Education Act 1996, are identified in the amendment and coincidently (other than section 331) were also identified as the 'key' duties in special education law by the Audit Commission in their recent report.

Clause 2 as it stands allows the Secretary of State, or National Assembly for Wales, to exempt applicants (schools and LEAs) from any requirement of education legislation. The House of Lords attempted on 2 May (Official Report, col. 842--851) and again on 17 June (Official Report, col. 514--520) to introduce amendments (supported by the Special Educational Consortium) which would remove legislation relating to children with SEN from the Secretary of State's power to exempt.

Resisting these amendments, the Minister argued (with some logic) that they were cast too wide and would, if adopted, frustrate the Government's aim of encouraging innovation in the interests of all children, including those with SEN. The Minister acknowledged the force of Members' concerns, however, by introducing an amendment of her own which would require a Secretary of State or the NAW to refuse to use the power to exempt "if it would be likely to have a detrimental effect on the education of children with special educational needs." The Consortium welcomed this amendment as it offers some protection for children with SEN against the consequences of the exemption from education legislation.

However, the Minister's amendment is too imprecise to secure the key duties which create children's legal entitlement to special educational provision. Ultimately the Secretary of State would determine whether suspending one of the key duties would or would not have a detrimental effect on the education of children with SEN. Further, the Minister was unwilling to give an assurance that the Secretary of State would regard an exemption from these duties as likely to have a detrimental effect on the education of children with SEN.

This is the reason that the SEC is proposing a new amendment, tightly drawn in order to protect only those key duties which together provide the safety net. These duties do not generally arise when children with SEN can be helped by the provision available to them from their nursery or school. They normally arise only in the very small proportion of cases where this is not possible.

To exempt these duties from Clause 2 of the Education Bill would in no way inhibit the ability of LEAs or schools to develop innovative projects aimed at better meeting children's needs. But it would keep the safety net in place, just in case it is needed, for children with SEN. And keep it in place as a matter of law, not at a Secretary of State's discretion.

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