Official Report: Minutes of Evidence

The Chairperson (Mr Weir): The Committee is going to agree informally a position on all the amendments. Where amendments relate to draft regulations, the Committee may choose to indicate its position informally, and, if necessary, it will revise that following the anticipated departmental briefing on 7 November. Moreover, I suppose, as I indicated at an earlier session, there may be some issues on which we look to get further advice from the Bill Office.

I welcome our departmental officials: Caroline Gillan, who is director of access, inclusion and well-being and is a familiar face, having been in front of us before; and Irene Murphy, also a familiar face, who is the head of the special education and inclusion review team.

Members, we will start at clause 1, which relates to the Education Authority having regard to the views of a child in special educational needs (SEN) decision-making. We will start off at 1.0 in the clause-by-clause table. Does the Department have any final remarks that it wants to make on the clause, particularly on the explicit reference to the United Nations Convention on the Rights of the Child (UNCRC) in the Special Educational Needs and Disability (SEND) Bill?

Mrs Irene Murphy (Department of Education): Thank you. The Department's view is that the clause as it stands fully complies with the UN Convention on the Rights of the Child. The existing provision is sufficiently compliant in that regard, without overtly stating compliance with the UNCRC. We think that the Special Educational Needs and Disability Bill may not be the vehicle to refer explicitly to or specify compliance with the UNCRC, since the Bill relates only to children who have special educational needs or disabilities. For example, the principles in the UNCRC are much wider in their spread, in that they cover all children, not just those with special educational needs. Perhaps the principles in that are for much wider consideration, in the context of overarching education policies. It may be useful to reference the Children and Families Act 2014 in England, for example. They feel that they are compliant with the UNCRC but have not explicitly included a reference to the UNCRC in a similar clause.

The Chairperson (Mr Weir): Do members have any comments to make?

Mr Lunn: If, as you say, the clause is already sufficiently compatible with the UNCRC, in simple terms where is the harm in acknowledging that in the Bill?

Mrs I Murphy: I suppose that one of the issues might be that, if there is a specific reference to adherence to the UNCRC, should there be future changes to the UNCRC that we do not espouse for some reason, the clause would tie the authority into those.

Mr Lunn: There could be future changes to the European Convention.

Mrs I Murphy: Yes.

Mr Lunn: You would have to deal with those.

Mrs I Murphy: Yes, but I suppose that the argument is that, if we are specifically citing the UNCRC and compliance with that as it stands now, with good intention, there would be no room for manoeuvre if there were changes that were perhaps not desirable.

Mr Lunn: I take your point, but, in the real world, it is hard to imagine what changes could be made to the UNCRC that would be disadvantageous to the rights of special needs children under our Bill. It seems almost far-fetched, to be honest.

Mrs Caroline Gillan (Department of Education): I suppose that, with regard to why the request is being made to specify it, they are saying that it is to ensure compliance in respect of decisions. As Irene said, we feel that the provisions that are in the Bill and those that we intend to put in the regs and the code will do exactly what they are designed to do.

The UK is a signatory to the UNCRC, but it does not necessarily impose domestic law obligations at an individual level. We could be entering a debate that may not necessarily be to do with improving services on the ground for children; rather, it may be a more academic — arguably legal — debate. Where is the balance to be struck? Obviously, we want to ensure that the rights of the child contained in the convention are suitably reflected in our SEN arrangements here. We feel that we have struck the right balance through those key provisions.

The Chairperson (Mr Weir): From a legislative point of view, although I think that efforts have been made, either here or in a national context, to make sure that legislation is compatible with the UNCRC, there have not been any express references to UNCRC in any legislation, as far as I am aware.

Mrs Gillan: The Children and Families Act 2014 in England did not go down the route of specifically referencing it. We are aware that Wales has a reference to the UNCRC in wider education legislation. That, as far as I understand it, is a recent introduction. If we were to follow suit — its legislation is in a wider sense — I would want to see what the practical outworkings of that were and whether it had had any practical and real benefit for children on the ground, as opposed to being a legal argument that is one step removed from the services on the ground.

Mr Rogers: On the same point as Trevor's, we can deal only with what we have in front of us. You talk about what you intend to put in the code of practice and so on. You have a fair idea how you will change the code of practice. When do you expect us to have some view of the revised code of practice? It will come up quite often.

Mrs Gillan: The recent correspondence — I apologise for sending that to the Clerk only yesterday — covers some of the issues around clauses 1 to 4. We have annexed the existing provisions in the code, which contain detail involving the child, the rights of the child and the voice of the child. They are already very explicit and really underline the requirement to involve the child in the process. We are absolutely going to strengthen those, but, if you read through the different portions that are already there, that will give you a very clear idea already of the importance of putting the child at the centre of the process. We hope to come to you on, I think, the first Wednesday in October with a paper on the regulations, which is obviously the next layer of detail. We certainly hope to come back to you on that at that point.

Mr Rogers: The revised code will be produced some time after that.

Mrs Gillan: Yes, that is right, but, if you look at the current provisions, you will see that there is a lot there.

The Chairperson (Mr Weir): In one sense and applying the Committee caveat on all our positions, it probably makes the informal consideration slightly unusual, because there is such significance — more so than usual — placed on the regulations. I suppose that, whatever position we take at the informal stage, that may alter or not alter once we have seen the draft regulations.

Mrs I Murphy: I was just going to say that the code, as well as citing lots of references to good practice on taking on board the views of the child, refers to the UNCRC. One thing that we would like to do on the basis of good practice that we have seen elsewhere in other draft codes, is to cite the relevant UNCRC or United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) references so that readers will have a full understanding of the obligations.

Mr Lunn: That was actually my question: will the revised code of practice make reference to the UNCRC?

Mrs I Murphy: Yes. The existing code of practice cites it, but we would like to perhaps expand it and provide a glossary, a reference or a direct link to the actual wording of article 12 as it relates to the UNCRC and UNCRPD clauses.

Mr Lunn: Are we going to come back to "have regard to" or "have due regard to"?

The Chairperson (Mr Weir): We will come on to "regard" and "due regard" in a moment.

OK, folks. Regarding the Committee's position, again with the caveat that we will see any amendments or otherwise on that aspect, have members any views?

The Committee Clerk: For my benefit, can I take it that, by taking a vote, the Committee is informally not going to pursue an amendment, although members may individually choose to do so at Consideration Stage?

Mr Lunn: Is that our understanding, Chair? We can say that we are content with the clause —

The Chairperson (Mr Weir): Yes. At this stage, it is informal. Our position may change on a range of issues once we have seen the regulations.

Mr Lunn: For the time being, are we content?

The Chairperson (Mr Weir): Would it be reasonable to say that, at the moment, there is not an intention to pursue an amendment on behalf of the Committee on the specific reference to the UNCRC?

The Committee Clerk: What would happen then, if members were agreeable — it is important that we get this sorted out at the start — is that, when we come to formal clause-by-clause consideration, because there is no enthusiasm at this time for an amendment the Chair would not call such an amendment. However, members could still say, when we came to formal clause-by-clause consideration, "Oh, I think that we should amend it". At that point, if members wanted to register their support at that time for an amendment, there could be a vote. I think that I am correct in sensing that there is not majority support for such a change.

The Chairperson (Mr Weir): Is that a reasonable assumption, members? There may, as I say, be a range of things that we will ultimately have to revisit after we see the regulations.

We will move on to 1.1. In the light of earlier advice, maybe the issue of whether to have "regard" or "due regard" is a slightly moot point. For those who heard the earlier briefings on that, would it be a reasonable assumption that the point is probably a bit redundant now?

Mr Newton: Agreed.

Mr Lunn: We are disregarding the —

The Chairperson (Mr Weir): The advice that we got was that, first, there seems to be relatively little legal difference between "regard" and "due regard" and that, secondly, if anything, "due regard" probably slightly weakens the terminology rather than strengthening it. I am not sure. I think that, to be fair, those who suggested the change from "regard" to "due regard" were doing so in the belief that they were strengthening the legislation, but it seems that, if a change were to have any impact, which is debatable, it would have the opposite effect in that regard.

Mr Kennedy: In due regard.

The Chairperson (Mr Weir): Yes.

Mr Lunn: We are disregarding the amendment.

The Chairperson (Mr Weir): Yes. Before we descend into a sitcom on that point, I will say that I suspect that we probably do not need to spend a great deal of time on 1.1.

There are a number of points in the table. I assume that officials have the table. Points 1.2 to 1.7 relate to assurance on how schools and the Education Authority are guided by the code of practice on how to take the views of a child into account while recognising the age and maturity of the child. Perhaps you can give us a response on those points, beyond what you have given by way of summary.

Mrs I Murphy: Yes. On how the code will guide the authority and schools on the views of the child, again, as Caroline said, there are already many references in the existing code of practice to how schools and the —

The Chairperson (Mr Weir): Would it be possible for you to speak a little louder, Irene? Maybe the microphone is not picking you up all that well. For some members, it is a wee bit difficult to hear. Bits of what you are saying are indistinct at the moment.

Mrs I Murphy: OK. Regarding clarity on the code of practice and how it guides the authority and schools, you will see, when you have the opportunity to look at the extract, that there are already many references to schools and the authority taking the child's views into account. The code of practice and the supplement emphasise the importance of involving children, seeking their views at all stages of assessment and making provision for them. Those existing references, we feel, will be built on in the new code to provide some practical guidance and to re-emphasise the importance of the school in seeking and considering the views of the child and in giving those views due weight, in accordance with the child's understanding and maturity.

It is also intended that there will be examples of good practice in seeking and considering the views of a SEN child, and those are to be developed as part of the code or, indeed, as additional guidance. They will focus on the need for the child to be given, for example, sufficient time to consider the topics that are to be discussed and to receive information in a form that they can easily understand and to be given support to go over ideas and understand concepts and basically to understand any agreements that they have reached and the consequences of those agreements. As regards the information and advice that would be made available to the child, the Bill enhances the statutory advice and information service that is already in place to provide information to parents. It will be extended to provide information to children so that they have wider advice and information on the SEN framework and how it works.

The Chairperson (Mr Weir): Are there any questions for the Department? Do members have any views on potential amendments on those points? A few have been suggested. No? There is silence. We got certain assurances, but, at this stage, are members looking for there to be any amendments? There are a couple of areas in which assurances have been sought. Do members have any views on the wording?

Mr Lunn: Chair, you are asking us whether we want to propose an amendment at this point in the process. The answer is no, but that is not to say that it will not happen down the line.

The Chairperson (Mr Weir): That is a caveat that will run through all of this. At this stage, nobody is pressing for an amendment.

We will move on to 1.8. A specific point has been raised. Again, I do not think that an amendment has been suggested, but assurance has been sought from the Department. Can you address the views at 1.8?

Mrs Gillan: On the Irish-medium provision?

The Chairperson (Mr Weir): Yes.

Mrs Gillan: I think that we have provided you with assurances in the past on the work that the Department has done to improve SEN provision in the Irish-medium sector. We have provided over half a million pounds of support work to strengthen SEN provision, identification and assessment in Irish-medium schools, and that includes training and capacity-building projects around sharing best practice and sector-specific literacy and numeracy support regarding identification. There has also been the establishment of an Irish-medium special educational needs coordinator (SENCO) steering group. We had an Irish-medium early years SEN conference last year and various awareness-raising sessions, and, in January of this year, an Irish-medium version of the SEN resource file was provided to the sector. That was not just a straight translation of the English version but had examples of good practice that were tailored to the Irish-medium sector.

What I will say is that, since we put in place various support packages, Education and Training Inspectorate (ETI) inspections have shown that the SEN capacity-building programme in the sector has led to improvements. We feel that there have been great moves in the area, and we absolutely give an assurance that that work will continue.

Mr Lunn: Is there any reference in the existing code of practice to the Irish-medium sector?

Mrs I Murphy: No, not specifically.

Mr Lunn: The perception is not so much that there is not the same SEN support in Irish-medium schools but that there is a problem with the provision of it in Irish.

Mrs Gillan: Some of the investment that we made in recent years has been in purchasing testing materials in Irish for maths and literacy. We were aware from comments made that the materials or the tests were not available, so we have invested in that respect. The availability of support in Irish, whether from educational psychologists or actual therapists, is a bit of a wider staffing issue. We want to address that moving forward, but it is not an easy fix, given that we have to find staff who are fluent in Irish.

Mr Rogers: That is the point that I was getting at, Caroline. The materials are possibly there but not the support.

What findings are coming out of the Irish-medium SENCO support group? Is it human support that is the issue?

Mrs Gillan: SENCOs are coming together to share best practice. I think that that is led by the Belfast region. That is what we find across the board, regardless of the sector. One of the areas that is most encouraging and of most benefit to schools and teachers is the sharing of good practice. In response to concerns about some Irish-medium schools feeling isolated, it was suggested that a specific SENCO group be established for the Irish-medium sector. That is not to say that it cannot avail itself of other supports as well.

Mrs I Murphy: That has been one of the good-practice outcomes of the work. It has been important to get Irish-medium practitioners together to look at their own issues and at good practice elsewhere. Not only have there been Irish-medium-specific initiatives but there have been wider SEN review capacity-building initiatives, such as the continuing professional development (CPD) and literacy project at Stranmillis and the educational testing pilots. The Irish-medium sector has been involved in those as well, and that has helped them to liaise with their Irish-medium colleagues and those elsewhere.

Mr McCausland: How many educational psychologists are there working in Northern Ireland? I am looking for just a ballpark figure.

Mrs I Murphy: I am afraid that I do not have an accurate figure; I would guess around 120. I can certainly get that information for you.

Mr McCausland: What is the percentage of children attending Irish-medium schools?

Mrs I Murphy: Gosh. Those are figures that we would have to —

Mr McCausland: A few percentage points. Even proportionally, a small number of people would require expertise in Irish.

Mrs Gillan: I suppose that the issue is around geographical spread. We would need to look at staffing structure issues. We can certainly get you those figures.

Mr McCausland: Are there any educational psychologists with a capability in Irish currently?

Mrs I Murphy: My understanding is that there are, but I am not sure of the level of their skills and how they use them on a day-to-day basis.

Mr McCausland: They might have a level of Irish but not a level that is sufficient to carry out their professional duty.

Mrs I Murphy: Again, I would prefer to come back to you with that information.

Mr McCausland: OK. That is fine.

The Chairperson (Mr Weir): It would be helpful if you could get us that information. Are there any other comments? It is suggested at 1.8 that assurances be sought from the Department rather than an amendment tabled. I suppose that I had a real question to ask the Committee in connection with that.

We move on to clause 2. It deals with the duty on the Education Authority to produce a SEN plan for its provision. We will take the points stage by stage. Point 2.1 deals with the issue of the Education Authority's SEN plan and the consistency of SEN provision across Northern Ireland. Do you want to comment on that?

Mrs Gillan: We now have the new Education Authority, so there is a regional approach. In fact, a regional approach is being developed in SEN services. Therefore, absolutely, there will be one plan across the region and a consistency of approach taken across all geographical areas.

The Chairperson (Mr Weir): Do members have any questions? No? No amendments were suggested at 2.1. We were seeking only assurances.

In your response, one area that the Department indicated was that professional provision related to allied health professional occupational therapy, therapy, speech therapy etc will not be included in the EA's SEN plan. Do you envisage changing that?

Mrs Gillan: The EA plan is about education support only, so it will be provided by the Education Authority. Therapy supports are provided by health trusts; therefore, it would not be appropriate for them to be listed in the plan.

The Chairperson (Mr Weir): Does anybody have any comments? We are, again, trying to produce a joined-up approach. The question is, I suppose, whether that creates a slightly disjointed situation.

Mrs Gillan: I assume that we will return to Health/Education collaboration later when I can speak a little more about what is happening on the allied health professional side between Health and Education.

The Chairperson (Mr Weir): OK. We will move to 2.2. I will leave the Chair just for a moment.

The Deputy Chairperson (Mrs Overend): Have you any comment on 2.2?

Mrs Gillan: No. Clause 2 already provides for regulations to make provision for consultation by the authority in relation to the development of the plan, to make sure that there is public consultation whenever there is a significant revision of the plan. That would include children and parents and so on.

The Deputy Chairperson (Mrs Overend): Do members have any comments? If not, we will move on to 2.3. Do you have any comments on 2.3?

Mrs Gillan: The plan will include SEN support and advice made by the authority for SEN students, including those with a disability. As regards raising disability awareness, the SEN code of practice will promote positive attitudes, as will the training for boards of governors and schools that we will roll out. We have also developed a DVD to promote positive attitudes to disability, so we feel that those areas are covered in the plan and training.

The Committee Clerk: Chair, can I infer that the Committee does not want an amendment in respect of 2.3 and, by saying that, that members accept the assurances from the Department and I can write our report accordingly?

The Deputy Chairperson (Mrs Overend): That is a good point. Are members in agreement with that?

The Deputy Chairperson (Mrs Overend): I will take that as a yes. OK. We will move on to 2.4. Has the Department any final remarks or comments on 2.4 and 2.5: the provision of SEN support for non-statutory preschool settings and additional support for preschool transitions to primary for SEN children?

Mrs I Murphy: The authority does not have the same duties for children who are in non-statutory early years settings as it would have for the grant-aided statutory settings. However, regardless of that and the setting in which the child is placed at early years, the Education Authority has a responsibility to identify them if they need to have, for instance, a statement set out. That would still apply to all those schools. In addition, it is envisaged that the Education Authority plan would include the new early years inclusion service, which has come about since September this year, as a result of the extensive early years pilot at an earlier stage. There will be support for the non-statutory DE-funded early years settings, both in capacity-building and integration with the existing early years teams in the authority to provide support to children at an early stage.

The Deputy Chairperson (Mrs Overend): OK. Thank you. I will call Trevor, and Peter will be back as Chairperson.

Mr Lunn: It is fair enough if you are going to do an early years pilot, but why should it not cover both statutory and voluntary sectors?

Mrs Gillan: Just to clarify: the private and voluntary sector is covered if we provide a grant to it. As regards early years provision, some children are in the statutory settings — nursery schools — and some are in the private preschool settings. It is for any of those publicly funded places, and every child is entitled to a publicly funded place. The inclusion service will cover all the settings that we fund.

Mr Lunn: So there is no difference.

Mrs Gillan: Yes. It is only the private ones where there is absolutely no government funding and where the parent might have arranged —

The Chairperson (Mr Weir): Sorry to interrupt you. Somebody's phone is too close to the microphone type of thing. It seems to have —

Mr Kennedy: Sorry, Chairman. I am suitably reproved.

The Chairperson (Mr Weir): You will be left to write lines in detention today, Danny.

Mr Kennedy: Alternatively, send me back to Stormont House for talks.

The Chairperson (Mr Weir): If we really wanted to punish you, we would send you back to DRD.

Mr Kennedy: Steady now.

The Chairperson (Mr Weir): That is only as an ultimate sanction.

Sorry; go ahead, Trevor.

Mr Lunn: Most children in the voluntary sector — leaving aside the ones who do not get any funding at all; I cannot imagine why they would be in there, but that is their choice — are there because they could not get a place in the statutory sector, so it is completely reasonable that they should be entitled to it.

Mrs Gillan: Not necessarily. From my experience, I know that my local preschool had a voluntary setting but was publicly funded.

Mr Lunn: I cannot remember what mine was.

Mrs Gillan: What we were pleased with in the early years pilots was the fact that they raised the capacity of all those publicly grant-aided settings, statutory or non-statutory, so capacity-building supports were going in there. That is what we are now including and mainstreaming at the early years inclusion service. It is important to emphasise that, if the EA feels that a child requires a statement, it has a duty to assess that child regardless of the setting that they are in. That is the important thing: that they will not fall through the cracks in that way.

Mrs I Murphy: There are some detailed differences in relation to non-statutory funded settings. For instance, they would not have a duty imposed on them to take a child with a statement if the EA wanted to place them there in the same way that a grant-aided school would be obliged to take a child with a statement. However, there is certainly extensive provision in the 1996 Order already to smooth that out and to enable the authority to work with the non-statutory settings.

Mr Lunn: The ultimate aim is that there will be no difference in how the two sectors are treated.

Mrs I Murphy: Certainly, in terms of capacity-building for those early years settings, the new early years inclusion service covers all the early years settings that are funded by DE in some way or another.

Mr Newton: I would be content with what was explained if somebody would clarify for me the number of children who would not be caught by the statutory aim of providing voluntary funded places.

Mrs Gillan: I think that the Minister has ensured that every child will have a funded preschool place, whether in a voluntary or statutory setting. Every child is entitled to a funded place for one year.

Mrs I Murphy: I am not quite sure of the uptake. Certainly, there are some children who do not enter into early years, for one reason or another. I know that the Department is working through the early years intervention programme to access children who perhaps are not as easy to reach.

Mrs Gillan: Nevertheless, the percentage uptake is pretty high; I think that it is in the nineties.

Mr Newton: OK. So you are saying that they use the word "minimal".

Mrs Gillan: Yes. Certainly, the evidence from the pilots with the non-statutory sector has been really encouraging. There has been very positive feedback from both settings and from parents on the progress made by children. ETI has also reported exceptional progress in the difference that it has made to those settings by increasing their understanding of SEN. It has really made a difference to the children, not just those with SEN but those who do not have SEN because the strategies employed are equally good for all children.

Mr Kennedy: The fact that a place is not available for those who wish to take it up is not the issue. Sometimes, in practical terms, the distance involved in getting to an available space has been the issue.

The Chairperson (Mr Weir): It makes it impractical in that regard.

Mr Kennedy: Yes. I think that that is the issue.

The Chairperson (Mr Weir): Right then. With regard to 2.4 and 2.5, obviously there were suggestions, but I am sensing that perhaps there is not a —. I think that the explanation may well have largely covered it. OK, we will move on then.

Two point six deals with the cooperation side of it. We will leave that for a moment. I suggest that, on the wider issue of cooperation between the Education Authority and the health and social care trusts, we consider the comment under clause 4, so we will deal with that a little later.

We move on to 2.7, which is on a specific point raised by Autism NI to do with parental involvement in the design of SEND funding packages. Will you comment on that?

Mrs I Murphy: A parent already has the right to express their view in the statutory assessment process and engage with the authority throughout on the provision that will be set out for the child. There is not a SEND budget per se attached to that, but it does have a cost. The provision that the authority sets out is appealable by the parent. If they disagree with that, they can go to the special needs tribunal or they can go through the Dispute Avoidance and Resolution Service. Whilst the statement does not set out the cost of the provision, that cost is borne by the authority, and the provision required to meet the child's needs is set out in the statement.

The Chairperson (Mr Weir): Are there any comments, members?

Mr Lunn: I agree with the Department.

The Chairperson (Mr Weir): No amendment is being sought there. We move on to clause 3, which is specifically about the duties of boards of governors in relation to SEND pupils. In relation to comments 3.1 and 3.2, there is the issue obviously that we received earlier in connection with reasonable steps and, as far as reasonably practicable, best endeavours. I think there might be also maybe one other suggested, I suppose, new wording by way of an additional word that has been maybe suggested that would be the implication that you may also want to comment on. One suggestion that we discussed earlier was, instead of either of those, "reasonable steps" being changed to "all reasonable steps" and what the implication would be. That is one possible amendment in that regard. Do you want to deal with that aspect?

Mrs Gillan: There are two layers. There is the duty on the board of governors to use best endeavours, and the board of governors has the overall responsibility for what is delivered by the school. That is distinct from the actual teacher and those who are engaging with the child on the ground in terms of proactivity in taking actual reasonable steps. We were keen to see a continued difference in the terminology. If there were to be a change in that terminology, I am not quite sure from the evidence that has been provided what the justification is for the changes in either regard. I do not believe that it necessarily strengthens either in terms of the proposed changes. "Best endeavours" is the overall effort and intent as regards the board of governors, and "reasonable steps", to us, is the proactivity on the ground and implies a proactive duty. As we have said before in evidence, taking reasonable steps is a well-understood concept for legal duties, and best endeavours has been in place for some time. What we are doing is further enhancing the duties on boards of governors.

The Chairperson (Mr Weir): I understand the terminology and the consistency on that side of things. While there was no position taken by the Committee, one other variant on that was, if "reasonable steps" was left in, there was the option of amending it to take "all reasonable steps". Do you want to comment on that? I appreciate that that is somewhat thrown at you.

Mrs Gillan: I guess that the key is that, for a teacher, the reasonable steps will change, depending on the circumstances of a child, so it is not an absolute duty. "Taking all reasonable steps" is still not an absolute duty. We will want to go away and think about whether it makes any real difference, and the Committee will obviously take its own advice.

The Chairperson (Mr Weir): Before we press that particular issue, I suggest to the Committee that we allow the Department to come back on 3.2 next week, given that that is something that we have thrown at the Department today in connexion with that. Maybe from that point of view we allow them to come back on 3.2.

Mrs Gillan: We will want to take advice from the Office of the Legislative Counsel (OLC) on that drafting element.

The Chairperson (Mr Weir): Beyond that, does anybody have any questions on 3.1 or 3.2?

We move on to 3.3 and 3.6, which are in relation to the ownership of personal learning plans (PLPs) and the obligations on a school where a child transfers from one school to another, particularly the ownership of PLPs and the transfer of information during transitions. Do you want to address that?

Mrs I Murphy: We tend not to think about the "ownership" of PLPs. Schools already have individualised education plans for children, so it is not a term that we would use. We would not say that the school or the authority owns PLPs. It is a working document that is the responsibility of the school, and the Bill now places a duty on boards of governors to make sure that a personal learning plan is in place for every SEN child. That is a significant additional improvement and responsibility. We see it as a partnership document. Whilst the school must move to make sure that a personal learning plan is in place, it has to involve the child and parent, and it has to review the plan regularly so that all concerned are aware of the provision that is intended to be made for the child to support their SENs.

The Chairperson (Mr Weir): What about the issue of the transfer of that document? In both this context and the wider context, one of the concerns that has been raised with me from time to time — indeed, it has been raised at the Committee — is that a certain amount of information is built up about a pupil when they get to the transfer between primary and post-primary. Simply, that information is retained at the primary school; it is not transferred on and, as a result, you can get a degree of disconnect. Effectively, an opportunity for learning from the primary school is lost, and the new school has to effectively reinvent the wheel from the start in relation to that.

Mrs I Murphy: Yes. There are a number of points to be made there. The code of practice already sets out some good practice in transferring the individualised education plan from school to school. However, that is with the consent of the parent and child. Not everyone, particularly at primary to post-primary stage, wants all the issues that were perhaps dealt with successfully at primary school to be transferred and that information go into the post-primary sector. So it would be good practice to have the consent of the parent and the child to the transferring of relevant information. Moreover, in relation to transferring from primary to post-primary, the sort of measures that might have been put in place in the primary sector might not be appropriate to the post-primary sector.

The Chairperson (Mr Weir): Irene, the only thing that I would say in relation to that is that that may well be very true. However, the post-primary school should at least have a knowledge of it. It may take the view that such and such is not relevant. It may not be the ideal way of dealing with the situation, but at least if the post-primary school has a knowledge of what has been done in the past, would it not give the new school additional information on which it could base judgements and decide what actions should be taken?

Mrs I Murphy: I think that the revised code of practice would set that out and provide good practice examples on the sort of information that it would be useful to transfer and how you involve the child, the parent and the new school in relation to that. We are absolutely not saying that they should not transfer information; however, we are reluctant to say that that information should be taken lock, stock and barrel from one school to another. Good practice and experience of what supports have worked for the child should be transferred with consent.

Mr Newton: Chair, I think that you have covered most of it. Irene, two parents came to me and indicated that, in the transfer situation — I use only their words — nothing transferred with their SEN child to second-level education. They found that to be detrimental to the child's education in year 1 of second-level education. You said that good practice should be followed. Good practice is fine, but what is the obligation behind it? The Chair has indicated that, if there is not a primary document for the school at second level to build on, where does that school start in addressing the needs of the child?

Mrs I Murphy: We have to make sure that we set this out very well in the revised code to make sure that schools are aware of the importance of transferring relevant information with the consent of all concerned.

Mr Newton: Does that mean that the second-level school should do a follow-up exercise with the primary school to make sure that the information came, or would they expect it to come?

Mrs I Murphy: I think that if we set it out in guidance, they would expect it to come. However, when a child enrols in a post-primary school, the school would have a responsibility to ask whether there were any issues. If the child has special educational needs, that, perhaps, should alert the school to liaise with the feeder primary school. That is something that it would be useful for the Department to work up, in consultation with stakeholders, and to take on board as good practice in both situations. At the moment, we are working to develop some work from nursery to primary stage. We are looking at training for P1 teachers who take on children from nursery school. We are trying to look at how that information and the good practice might be transferred to encourage primary schools receiving children with SEN to liaise with the early years setting before the child transfers. We would look at good practice that would result from that exercise.

Mr Lunn: You have pretty much answered my question. How long would it take a receiving secondary school to re-establish a personal learning plan if it did not have information by transfer?

Mrs I Murphy: If it did not have any information, it would be down to the school's special needs coordinator — soon to be "learning support coordinator" in the new proposal — to work with the various subject teachers if the subject teachers have identified any learning difficulty that the child might have. I cannot put a time on it, but, in the good practice in the code, we will be establishing that schools should be alert to the needs of children and some of the other work that has gone through capacity building to make sure that teachers are more aware of having to assess for special educational needs. That would also help.

Mr Lunn: We keep coming back to the code. It is more liable to be six months than six weeks. It is a very important stage of a child's development. They are arriving at a new school, with all the stress and strain of that. It is a different scenario completely, and maybe the child will have to wait unnecessarily. That would not be the case if the full information was transferred as a matter of course,

Mrs I Murphy: Parents also have a responsibility here. That is something that we are trying to encourage in the new statement; there would be greater input by parents. There would also be greater input into the PLP by parents. I do not see any reason why the parent or the child would not have a copy of the personal learning plan that they could take to the new situation. That is more good practice that we could look at.

The Chairperson (Mr Weir): Obviously, I think, I mean from that point of view, the other thing just to clarify in terms of the transfer of PLPs because obviously we talked about, I suppose, the specific side between primary and post-primary. If a child transfers from one school to the next, within any school year, does the PLP follow them around?

Mrs Gillan: Again, the duty is on the school that the child is registered at, but the same principles would apply, and I think that that is how we would draft the code. We would not simply rely on it being between school phases; it is any transfer between one school and another. We can engage with primary and post-primary schools on what they view as being reasonable and helpful. We cannot ignore the fact that, in the normal school settling-in period, there are parent/teacher interviews and review stages for any child who is entering year 8. With regard to a PLP and whether a child has any SEN, all those things are flagged up in the normal course, regardless of the additional duties that we intend to introduce.

Mr Kennedy: My instinct is that more is better in these cases, for completeness and for the benefit of everybody — pupil, parent and school — concerned. That makes more sense. I want to avoid a situation in which a school has to start assessments and any work that has been done, again, within the proper parameters. That would make logical sense. That is my instinct.

The Chairperson (Mr Weir): The Committee will correct me if I am wrong in relation to this on it, but I get a general feeling that there is concern that a code of practice may not be enough and that we may need to have an amendment drafted, along the lines of the PLP following the child when it transfers between schools. Would that be subject to parental agreement?

Mrs Gillan: You would need to address data protection issues and suitable consents.

The Chairperson (Mr Weir): It would be subject to parental consent, but we could at least get a draft from the Bill Office and examine it.

Mr Lunn: Ladies, you mentioned parents and their involvement. Surely if, as you said, Irene, parents are likely to have a copy of the plan anyway, it is up to them what they do with it. There seemed to be some doubt about that the last time we discussed it. If parents had a copy of the plan and the freedom to do what they wished with it, that would solve the problem. What parent would not want to cooperate with the receiving school?

Mrs Overend: Do you intend to have a time frame in the code of practice for when a PLP should be settled?

Mrs I Murphy: Yes, absolutely. It will state when the PLP will be reviewed and so forth and how a parent and child should be involved in that.

Mrs Overend: I do not mean when it will be reviewed; I mean when it is drawn up and put in place.

Mrs I Murphy: In the primary Order, we are trying to speed up intervention, identification and assessments, so there would be an overarching responsibility on a school to make sure that it identified children as early as possible. As soon as children are identified as SEN, or if a school suspects that a child is SEN, there is already a duty on a school to advise a parent that a child may or may not have SEN.

As soon as SEN is identified, there is a duty to put a PLP in place right away. Schools have to start to develop a PLP. We would not suggest that, if a school identified that a child had SEN, it should not start that process for three or six months; it should be started right away. The duty to develop a PLP for every child who has SEN or has been identified as SEN is that schools have to start immediately.

The Chairperson (Mr Weir): Irene or Caroline mentioned parents having a copy of the PLP. Is there a legal obligation or right for them to have one? Is it automatically given to them? There may be a concern that what is good practice in some schools may not be the legal right. That is complicated by some schools having a more proactive approach to making information available, while, with others, there appears to be a greater reluctance, whether with the parents or a transferring school. There seems to be a mixed picture. What is the position on parental rights? What ensures that parents are automatically given a copy of the PLP?

Mrs I Murphy: We will look at the code of practice to reflect that. When we discuss individual experiences with stakeholders and parents, we will see what needs to be reflected in the code.

The Chairperson (Mr Weir): My suggestion to the Committee is that we at least get the Bill Office to draft something. I take Danny's point that more may be useful. Relying on the code of practice may be sufficient at this stage but, if members agree, we want to have an option.

Mr Kennedy: Once a PLP has been formulated for a pupil, is it an agreed document? Is it agreed with parents and pupils through the school?

Mrs I Murphy: Yes. It is envisaged that a school will set out how it expects to address a child's learning difficulties in the classroom. That will be discussed with the parent and the child. Say, for example, that a child had literacy or numeracy difficulties. If the parent was able and willing to support the strategies that were employed in the school at home, that would be written into the PLP.

Mr Kennedy: Are there circumstances in which a PLP is contested or remains contested, particularly by parents?

Mrs I Murphy: There is no right of appeal against a personal learning plan in the same way that there is a right of appeal against the authority for a statement. It is not a legal document in that sense.

The Chairperson (Mr Weir): I want to tease this out. If I understand the process correctly, there is consultation with the parents. There is probably an attempt to get consensus with the parents, but, ultimately — possibly, understandably — the school is in a position to produce a PLP. At a reasonable or unreasonable level, a school could say that a PLP states that a particular pupil needs additional literacy support and this is how the school intends to deliver it. Parents could reply that they want a classroom assistant with their child the entire time and want something that is a great deal more. Alternatively, some parents could say that they did not think that their child had particular problems and that they did not want the child to be stigmatised. There could be a fundamental disagreement with the parents. Presumably, the aim is to reach consensus. If I am picking it up right, it is not a question of parents disagreeing and saying that there will be no PLP unless they have something included. In negative terms, parents do not have a veto; ultimately, it is a school's decision.

Mrs Gillan: There are two points. We have the dispute avoidance and resolution service, so, if there are any disagreements between a school and a parent about provision, that service is available to try to resolve any issues. More importantly, parents always have the right to ask for a statutory assessment. If they are not happy with the provision at the school-based stages, they can always request a statutory assessment. That is the safeguard.

To put it in context: at the moment, 21% of the school population is on the SEN register. That means that 21% of pupils will have a PLP. It is good practice. A PLP is about a school focusing on the supports and efforts that it should make for a child, based on outcomes. We do not want to replicate a statementing process for 21% of the school population. I take your points about how it will operate in practice and how we will ensure that information is shared. It is important that we talk to stakeholders, schools and parents as we develop those provisions in the code to make sure that it is as useful as possible. However, I do not want to replicate a statutory form of process like the statementing process, because parents still have that fallback position for children who are over compulsory school age.

Mr Newton: A PLP in Fermanagh will look exactly the same as a PLP in Belfast.

Mrs I Murphy: Yes, it will. The revised code will set out the format of the PLP.

Mrs Gillan: What we expect it to look like will be well prescribed.

The Chairperson (Mr Weir): So 3.7 deals with the specific issue of allowing parents an equal right to appeal SEN provisions at stages 1 to 3 for unstatemented children. I ask you for a comment.

Mrs Gillan: It is pretty much as we said. The real key is that, if parents are not happy at stages 1 to 3, they can request a statutory assessment.

The Chairperson (Mr Weir): Do members have any comments? Are members content with the explanation that they have been given? We are not seeking an amendment, are we?

I will move on to 3.8, which deals with a specific suggested change to remove the words "teach him" and insert "are likely to teach him and be concerned with his education". Do you have a comment on that?

Mrs I Murphy: The suggested amendment appears to limit the duty to teachers only, since only teachers teach the children, whereas the policy intention is that all those who are likely to be concerned with a child's education, including teachers, will fall within that clause.

Mr Lunn: My recollection is that that amendment is supposed to read "are likely to teach him or" — not "and" — "be concerned with his education".

Mrs Gillan: If that is the case, I do not believe that it would change anything. The draft is totally inclusive of teachers and all others.

Mr Lunn: Is it anybody else's recollection that it should be "or" rather than "and"?

The Chairperson (Mr Weir): Can we check that?

The Committee Clerk: OK.

Mr Lunn: People who do not teach are involved in a child's education.

The Chairperson (Mr Weir): We will check that one.

Mrs Gillan: As we have been going through the Bill, the amendment has always been the same, and we have made the same point. Perhaps it was different at the very beginning, but that is certainly how it has been presented to us.

Mrs I Murphy: All those concerned with a child's education include teachers, classroom assistants, perhaps peripatetic teachers and therapists. It is quite broad.

The Chairperson (Mr Weir): If there is a substitution — "to be concerned" with a child's education — that seems to be reasonably encompassing.

If members are content, we will move on to 3.9 to 3.13, which deal with the capacity development of boards of governors and learning support coordinators. I ask the Department to deal with those points.

Mrs I Murphy: Perhaps an amendment is not necessary, given that clause 3 already provides that qualifications and experience, or both, may be prescribed in regulations for learning support coordinators. As we move forward with the regulations, we will want to consult with stakeholders to make sure that we have captured the appropriate experience and qualifications in the regulations.

The Chairperson (Mr Weir): Does anybody have any comments? In the absence of any comments, we move on to 3.14, which is about additional capacity for health and social care trusts.

Mrs I Murphy: There is no proposal in the Bill to change any statutory duties for health and social care, so we have not made any assessment of any capacity issues. The Bill covers the duties on the Education Authority and on boards of governors.

The Chairperson (Mr Weir): Are there any comments? There are no suggested amendments for that area.

We move on to 3.15, which is about the requirement to seek strategic advice from educational psychologists. Do you want to make any comments on that?

Mrs Gillan: We have no plans to change the current role of educational psychologists in the statutory assessment process. We have given assurances to the Association of Educational Psychologists (AEP) about that.

The Chairperson (Mr Weir): There is a comment about seeking reassurance that the system will not change to the detriment of educational psychologists. The association also wants an assurance that it will be consulted more frequently. Can you give any comfort about that?

Mrs Gillan: That the association will be consulted or that individuals will be consulted.

The Chairperson (Mr Weir): It is the association. The feeling is that comparative bodies in other jurisdictions have a much closer consultative relationship with their respective Departments than the AEP seems to have.

Mrs I Murphy: The AEP provided a response on formal consultation on policy proposals, which the Department took account of. In more recent times, the association has also written to the Minister, and the SEN review team has been in contact with the AEP. At a very early stage of the development of the Children and Young People's Bill, there was some confusion about a proposal to remove the statutory provision in relation to psychologists as advice givers in England. That did not happen as the Bill moved forward, but the AEP was concerned about it. We certainly had engagement on that. In recent years, the Minister has also addressed a major conference of educational psychologists when they were celebrating 100 years of educational psychology here. More recently, I addressed an information session for Education Authority staff, including psychologists. We are very open. In making that contact with the AEP, we invited it to come to us if it had any further queries, and that invitation remains.

The Chairperson (Mr Weir): Blind Children UK raised a specific point at 3.16 about boards of governors being properly informed of SEN services. Do you want to add any comment to that?

Mrs Gillan: We provided information on the current board of governors training programme and the tailored SEN training programme, and, as we roll out the new framework, there will be particular board of governors training on SEN services. We are also aware that there has been good engagement between qualified teachers of the visually impaired and Blind Children UK, which looked at current procedures and how they might improve their communication and support services. Boards of governors have and will continue to have a training programme, particularly on SEN and SEN services.

The Chairperson (Mr Weir): There are no other comments on that.

Comments at 3.17 seem fairly straightforward. The Examiner of Statutory Rules has suggested changing the regulatory-making powers from negative to draft affirmative. I understand from your comments that you have no objection to that amendment.

Mrs I Murphy: We need to look at whether, in some of the Bill's provisions, the power remains negative, whereas, in others, the power is affirmative. We could have a number of sets of regulations for different parts of the Bill. It is to do with the consistency in the 1996 Order.

The Chairperson (Mr Weir): The issue is twofold. First, I take a view that, if the Examiner of Statutory Rules is suggesting a particular provision to us, it might be unwise for us to go down a different route. Secondly, a number of us have been through the legislative process in different Departments and Committees, and some specific things are subject to affirmative resolution while others are subject to negative resolution. It is not uncommon, and I would have thought that not having everything one way or the other should be a barrier.

Mrs I Murphy: The regulations that are attached to the 1996 Order are by negative resolution. The SEND Bill changes a number of paragraphs that are only elements of articles in the 1996 Order. As we move forward, we want to draft new regulations to reflect the new powers in the Bill's clauses.

The Chairperson (Mr Weir): Do not forget that the regulations that the Examiner of Statutory Rules refers to relate specifically to clause 3(3) and clause 3(4). It is not across the board.

Mrs I Murphy: We would be concerned that, as we move forward, two completely separate sets of regulations might be needed to amend the provisions in the 1996 Order and to move forward with regulations from the SEND Bill. There could be two sets of regulations — one affirmative and one negative. Whether that would be —

The Chairperson (Mr Weir): I cannot see that that would be a particularly insuperable barrier. Members, I suggest that, if we have a proposal from the Examiner of Statutory Rules — I know that the Department has not given its final position — are we happy to seek an amendment? My view is that people get hung up on negative and affirmative resolution and see a vast difference when, in practice, there may not be. I am conscious that, if we have a suggested change from the Examiner of Statutory Rules — that happens relatively rarely — it would make reasonable sense to consider it as an amendment, if members are agreed.

We will move on to 3.18. The Northern Ireland Commissioner for Children and Young People (NICCY) has suggested a change to new article 8(2A) and new article 8ZA(2). It has raised an issue, and I appreciate that this was not in previous correspondence. We are seeking a response from the Department on NICCY's suggestion of changing the wording from "may" to "shall".

Mrs Gillan: Are these purely about the pilot?

The Committee Clerk: This is still clause 3.

Mrs Gillan: We looked at advice from our legislative people and considered it. Members will be aware that the normal format is for regulations to say "may". The purpose of that is that regulations, by their nature, deal with potential operational matters and things that could change and require amendment. The use of "may" affords flexibility. However, if regulations state that it "shall" do this and that, you are eroding that potential flexibility. In years to come, it may not be appropriate for the regulations to do exactly what is listed in the Order. It may be that we will want the regulations to do other things. Our draftsperson expressed concern about exactly what would be sacrificed against what would be gained in that respect.

Mrs I Murphy: Yes, particularly with new article 8(2A), because one of the provisions that the regulations cover is that they "may":

If that were changed to "shall", we would be obliged to confer those functions on boards of governors. That may not be desirable at this time.

The Chairperson (Mr Weir): The word "shall" could now come in at two points. It is interesting that you seem to have broken down the broader duties in new article 8ZA — "Duties in relation to pupils in special schools" — into new articles 8ZA(1)(a) and 8ZA(1)(b), which use the word "shall", and new articles 8ZA(2)(a) and 8ZA(2)(b), which use the word "may".

Mrs Gillan: Our point is that the primary legislation places a proactive duty on the boards of governors, and that is where you want the certainty of a legal duty. The "may" is about what the regulations may provide related to the proactive certainty of the duty. We understand that, in the general rule of drafting, you set the proactive and certain duty at primary legislation level and then have the flexibility at regulation-making level.

The Chairperson (Mr Weir): There is a point that is pertinent to both potential amendments, and I understand why you want a high level of flexibility: that is logical. New article 8ZA(2)(a) requires:

Would you not want that to be applicable in all circumstances, so that the boards got somebody who had prescribed experience?

Mrs I Murphy: Yes, we would want that. However, if we use the word "may", that means that there is flexibility. Say, for instance, that we found that the regulations that we write now do not give a good all-round experience in qualifications for a learning support coordinator in a special school, this would give us the flexibility to change that.

The Chairperson (Mr Weir): I understand that what is in the prescribed qualifications may vary from time to time, but the wording of the legislation would simply state that there are prescribed qualifications. Presumably, those prescribed qualifications could change, but the requirement that there be prescribed experience could be mandatory. I am just teasing out the thinking.

Mrs Gillan: You would have to go through almost every element of the regulation-making power to question whether there was any doubt that the regulations would do something, and, if so, put in a "shall". If we want to retain flexibility because, at some point, we will not want to prescribe something, does that mean that it should read "may"?

The Chairperson (Mr Weir): I ask because we may need to drill down on the fact that this subset is slightly unusual. You have effectively taken four particular duties and put two into the "shall" category and two into the "may" category, because the first element is "shall".

Mrs Gillan: That is because that is what we want boards of governors to do. Putting duties on a board of governors or on the Education Authority on what they do for a child is different to a regulation-making power that puts flesh on the bones. I am not sure whether NICCY believes that we are not going to do what we say in the Bill through setting out the extra detail and whether that is why it wants "shall".

The Chairperson (Mr Weir): I understand that. The fact that you have gone beyond "may" in the first bit means that you are saying that there are four duties, two of which you are putting under the requirement of "shall". I appreciate that people can get unduly worried about "may" when it does not necessarily mean what is suggested. I will put this relatively neutrally, but, if you have two in the "shall" category and two in the "may" category, are you confident that those are in the right category? It is different from the general provision of "may".

Mrs I Murphy: They reflect the duty on a board of governors in ordinary schools under clause 3 and the provision that the Department may make regulations again under clause 3(3) for mainstream schools. The duties and the regulatory powers have been captured under one clause.

The Chairperson (Mr Weir): You are missing my point. In clause 3(4), article 8ZA is divided into four sub-paragraphs. I want to be reassured that, if two of those sub-paragraphs say "shall" and two say "may", those are in the right categories. It is understandable that, at new article 8ZA(2)(b), you want to keep the conferring of additional powers relatively open. You may or may not want to confer them, and you may have a situation in which those powers vary from time to time. It seems fairly obvious why that is a "may". It is about trying to ensure that paragraph (2)(a) is in the right category and that it is "may" rather than "shall". I appreciate that this came up at a later stage.

Mrs Gillan: It is treating it the same as the mainstream. Obviously, clause 3(4) is about special schools only, but, in comparing the mainstream, you have to go back to clause 3(2)(c) on the duties on mainstream boards of governors, which would be "shall" prepare a PLP. It is hard to read it. The Keeling schedule is probably an easier way to refer to it. There is no difference.

The Chairperson (Mr Weir): Where is it?

Mrs Gillan: It would say that it is amending article 8(1) of the 1996 Order. It sets out the duties on the boards of governors, and article 8(1) starts:

and is followed by sub-paragraphs (a), (b) and (c). The Bill adds sub-paragraphs (d), (e) and (f) so it is:

The Chairperson (Mr Weir): So sub-paragraphs (d), (e) and (f), although they are not explicit, are sub-referenced —

Mrs Gillan: Yes, you have to read it against the original Order.

The Chairperson (Mr Weir): You are saying that, on that basis, special schools are being treated similarly.

Mrs I Murphy: Although the Bill states that "regulations may", which gives the Department flexibility about content, as we have said, for good reason, if we are determining that it is appropriate to require qualifications to be prescribed, those regulations will say, "the board of governors shall". We can put actual proactive wording and "shall" in the regs. We want to retain the flexibility now and as we move forward regarding what is appropriate at that time.

The Chairperson (Mr Weir): Obviously, that will come in with the regulations. I suggest that the Committee will tease that out, unless there are any particularly strong views. We may want to revisit it once we see the draft regulations. Are there any other comments on that?

That completes clause 3.

The Committee Clerk: I have a quick point about the suggested amendment at 3.8:

I checked the original submission, and it is as indicated in the table: it is "and" not "or".

The Chairperson (Mr Weir): That, arguably, would weaken it.

It is about 12.40 pm, and we need to go through another few items, so I suggest that we pause. Obviously, clause 4 deals with the significant issue of the duty of cooperation and involvement with health and social care bodies. I think that we will pause for today and come back to that next Wednesday. Thank you for your assistance.