Group 7, then. This group of amendments relates to the education tribunal, and amendment 11 is the lead amendment in this group. I call on Darren Miller to move and speak to the lead amendment and the other amendments in the group—Darren Millar.

Amendment 11 (Darren Millar, supported by Llyr Gruffydd) moved.

Diolch, Llywydd. I move amendment 11 and want to speak to amendments 19 and 20 and 21, also tabled in my name, and I also want to speak to amendments 42 and 46, tabled in the name of the Cabinet Secretary.

I want to put on record at the start of this debate that we will be supporting the Government's amendments, which relate to the sharing of information and the ability of the tribunal to be able to appoint a deputy chair. I think that they're both sensible amendments.

The purpose of my amendment 11 is to remove the ability of the national health service to ignore a ruling of the Education Tribunal for Wales when that ruling relates to something that the NHS must provide to support a learner with additional learning needs. At present, the Bill as it's written does not require the NHS to be subject to the rulings of the education tribunal, and NHS bodies cannot be compelled to implement a recommendation from the tribunal. 

Now, during Stages 1 and 2, the then Minister suggested that the existing NHS redress measures were sufficient to ensure that any concerns relating to the engagement of the NHS in the additional learning needs process for failing to provide specified services and support were appropriate. But I'm afraid we all know from our own experiences with those wrestling with the existing special educational needs system, and the voices of countless other witnesses that came and gave evidence to the committee, that the evidence suggests otherwise. 

We heard overwhelming evidence from stakeholders, all of whom agreed, with the exception of the then Minister, that the tribunal should have the power to direct the NHS in relation to the provision of support for learners with additional learning needs. The Children's Commissioner for Wales said that she believed that the powers provided to the tribunal on the face of the Bill as it stands did not go far enough to ensure that all of its orders were fulfilled by duty bearers. The current Special Education Needs Tribunal for Wales, SENTW, told the committee that they would often request local health boards to deliver additional support, and, when they refused to meet the needs of the child, because the existing tribunal had no additional powers to compel health boards, those needs simply went unmet. They said that that is one of the fundamental weaknesses of the current system that necessitates change. 

The Third Sector Additional Learning Needs Alliance, the alliance that came together of different third sector organisations to give evidence to the Children, Young People and Education Committee during Stage 1, said that there needed to be a single redress system for all of the support that might be required for a learner, so that all parts of an individual development plan should enjoy the same legal robustness. UCAC also stated their belief that ensuring that some form of redress mechanism for individuals to challenge health bodies that fail to address health needs is one of the key areas that has remained unaddressed. Even health boards themselves told the committee that they were very comfortable and relaxed with the Education Tribunal for Wales being able to direct NHS bodies as long as health professionals could give and be involved—could give evidence to the tribunal's decision making. 

Now, the former Minister did seek to address some of these issues, particularly in terms of the lack of engagement, sometimes, by the national health service by making some amendments to the Bill that required the national health service to report back on what they'd done as a result of the decision and order that had been made by a tribunal. But those amendments that were made at Stage 2 fell short of requiring health boards to implement their decisions, and that means that we have a system that has two redress systems: one for the national health service, one for the local education authority and others. I don't think that that's satisfactory at all. 

We all know from our own experience that, unfortunately, there are problems with the NHS redress system. It's far from perfect. The Welsh Government acknowledged that it was far from perfect when they commissioned a piece of work on the NHS redress system. 'Using the Gift of Complaints' was a report that this Assembly considered, and we've not heard anything of it in terms of any follow-up work. We've not seen any changes to the redress system as a result of that, even though it identified some significant flaws, and that there was not sufficient learning from the NHS about complaints.

I don't want a complicated system to be something that we give to children and young people, and parents across Wales, as a result of this piece of legislation. I don't want two redress systems. If they've got an issue with redress, I want them to be able to go through one channel to get that resolved, and that channel, quite rightly, should be the Education Tribunal for Wales, and its rulings should stand. So, I very much hope that the Cabinet Secretary will accept the amendments that I have tabled—19 and 20.

Just very briefly on amendment 21, this amendment is slightly different in its nature. It doesn't relate to the NHS. It simply requires that the educational tribunal, which will be established as a result of this new system, must produce an annual report on its work and lay that report before the National Assembly for Wales. So, at the moment, the existing special educational needs tribunal produces an annual report on its website, but it's a pretty dry document. It's basically a summary of its activity, a summary of its expenditure over the year. The tribunal is not currently required to put those reports in an accessible format to make them more widely accessible to the public, or to report on recurrent issues and themes that crop up in the cases that it hears in the way that, for example, our Welsh commissioners or our public services ombudsman is required to.

I think that requiring the new tribunal to produce an annual report that is laid before the National Assembly and placing a requirement in the Bill that the report must be in a format that is requested by the National Assembly is one way of addressing some of those shortcomings in the current system. We can ensure that future annual reports are useful, that they are accessible by all stakeholders with an interest in additional learning needs, and so I very much hope that that is an amendment that also Members will see fit to support.

I rise to support all amendments in this group, many of them formally, particularly the lead amendment—amendment 11. We must acknowledge that the Government has moved on the role of the tribunal and has introduced a number of amendments at Stage 2 to try and respond to the strong evidence that we received on the need for the education tribunal to have the power to direct health bodies in relation to additional learning needs. They have moved closer to what I would want to see, and what the majority of witnesses to the committee wanted to see, but the Government is still falling short in my view.

Ministers have consistently reminded us that the narrative of this Bill and the broader package of reforms in terms of ALN is to make it easier and simpler for a child or young person and their families to actually find their way through the additional learning needs sector, that services should be child-focused, that the system works around the child, and that the child shouldn’t have to work their way through a complex and multi-faceted system.

Now, keeping two separate regimes for appeals or seeking redress undermines all of that, in my view. Extending responsibility for the education tribunal to include health bodies—only in relation to additional learning needs—would simplify things significantly, while everything relevant then would be included under a single tribunal. I would encourage Members to support amendment 11 specifically.

I'm afraid I cannot support amendments 11, 19, 20 and 21. Generally speaking, in relation to Darren Millar's amendments 11, 19 and 20, they seek to undermine the position that we have reached in terms of the remit of the tribunal when it comes to the NHS. The Government has been very clear on its position here. We have listened very carefully to the views of the Children, Young People and Education Committee and of stakeholders during scrutiny of the Bill, and I believe that we have responded positively. 

Indeed, if one looks at the draft Bill, there has been considerable movement from the provisions with regard to the NHS in the draft Bill to what we have before us today. That has been fairly recognised, I think, by both Darren and Llyr in their contributions.

The amendments agreed at Stage 2 around the tribunal making recommendations on NHS bodies and the NHS having to report back to the tribunal will have a positive impact and have been welcomed very much by the president of the tribunal. They introduce a new level of scrutiny of the actions of NHS bodies and that is to be welcomed. The president has noted that the Stage 2 amendments, taken alongside those made to section 73 of the Bill on non-compliance with tribunal orders, will—and I quote—'give a real insight into what happens after the tribunal has made its order.'

The Government’s amendment 42, which I’ll come on to, is of direct relevance here. The Government has listened to members of the committee and has moved to ensure that the NHS has a full and proper role during all key stages of the new system, including during and following appeals to the tribunal. 

With that in mind, it is worth mentioning section 18, which does not exist in the current system and represents a significant strengthening of the role of the NHS. It requires that an NHS body, when it receives a referral, considers whether there is a relevant treatment or service that is likely to be of benefit in addressing the child or young person’s ALN. If the NHS body identifies such a treatment or service, it must secure it.

As the Minister said during Stage 2, we have sought to re-engineer the relationship between health and education through the provision of the Bill because of testimony that has been brought forward and the experience that Assembly Members will have had here on behalf of their constituents. The next stage will be delivering this on the ground, and that's where the activities of the wider transformation programme come in.

Turning to the specific amendments, we do not support Darren Millar's amendment 11. It seeks to remove subsection (9) from section 19. This subsection makes it clear our policy that the orders of the tribunal are not binding on the NHS. I do not accept that it should be removed, and so cannot support the amendment. 

Amendment 19 and amendment 20 with its consequentials to amendment 19 would completely undermine our position on the remit of the tribunal when it comes to NHS bodies. They would effectively mean that the recommendations of the tribunal under section 72 were binding on the NHS, and for the reasons I've already explained, I cannot support them. The position now provided for in the Bill makes clear that the tribunal can make recommendations that the NHS must consider and that the NHS is required to provide a report to the tribunal on the outcomes of its considerations, and this requirement to report back to the tribunal will require a detailed consideration of the matter and an explanation of the action taken to respond to it. On that basis, I would urge Members to oppose amendments 11, 19 and 20.

I also cannot support amendment 21 as I do not consider it to be necessary. The Special Educational Needs Tribunal for Wales already publishes an annual report, and this is available publicly on their website. Darren Millar's amendment would introduce a different reporting requirement for the reports of the tribunal when compared to most of the other Welsh tribunals. Now, I take Darren's point about accessibility, and about the annual report being user-friendly, but we have to recognise that the tribunal is an independent judicial body and its annual report is a matter entirely for them. But, having said that, I would welcome the inclusion of more information on lessons learned from the tribunal cases in the annual report so that other delivery partners can learn those lessons. Given the individual nature of cases, it may not always be possible to draw broader conclusions, but I will write, Darren, to the president to ask whether it would be feasible to provide more commentary in future annual reports. Moves in this direction would have my full support if the tribunal decided to do so, but, ultimately, it is a matter for the tribunal and the president to consider, and I would urge Members to resist amendment 21. 

Turning to Government amendment 42, this builds on amendments agreed at Stage 2 relating to compliance with orders of the tribunal, now section 73 of the Bill. This amendment will enable the tribunal to share with Welsh Ministers reports received from local authorities, FEIs and health bodies about their compliance with orders and on action taken to respond to recommendations along with other related information. Information about failure to comply with orders, or of health bodies' failure to take action in response to recommendations, could also be shared. It is with this information that Welsh Ministers can monitor how the system is working and also take action where appropriate in response to non-compliance, for example through the Welsh Ministers' various powers of intervention. The monitoring and evaluation of the system facilitated by this amendment applies in relation to compliance with orders by local authorities and FEIs, and it will also be useful in establishing whether tribunal recommendations on health bodies and subsequent reports of health bodies to the tribunal have the desired effect. The president of the tribunal has noted the usefulness of the Stage 2 amendments, and this further amendment would ensure that the full potential of section 73 is realised.

Government amendment 46 creates a new 'deputy president of the tribunal' role. The former Minister made clear our intention to introduce amendments to create a deputy president at earlier stages in the Bill, and this was done in direct response to the strong operational case made for it by the current president of the tribunal. The president has said that a deputy president of the tribunal would—and, again, I quote—'significantly enhance the operational efficiency, business continuity and sustainability of the tribunal.' In practical terms, the deputy president will be designated by the president from a pool of existing legal chairs. I have heard from the president on this matter, and she is very pleased that we have tabled the amendment. Given the operational benefits it presents, I would urge Members to support it. 

Darren Millar to reply to the debate.

Diolch, Llywydd. I have to say I'm a bit disappointed by the Government's response. I notice that there were lots of references to the opinions of the president of the tribunal in relation to the Government's position in terms of welcoming what the Government had done so far, but this is the very same individual who gave evidence to our committee and who made it abundantly clear that she wanted direction-making powers given to that tribunal so that it had the teeth to get the job done on behalf of children and young people who need additional learning provision to be secured from the NHS. And at the moment, that is simply not happening frequently enough. We're having problems in people getting the support that they need and it's leading to significant disadvantage for those children and young people.

As Llyr Gruffydd quite rightly said, we've got to do away with unnecessary complexity. That was one of the stated aims of this Bill and, unfortunately, I'm afraid it's leaving one huge volume of complexity there in terms of having two separate redress systems to try to navigate through. I mean, I've got cases in my own constituency going through the NHS redress system that have been going on for two years. Is that acceptable for children and young people who might be requiring an opportunity to get the support that they need in their place of education? I think not, and I know that you don't think that that's acceptable either.

As I say, it would be helpful to know what an earth has happened to the improvements that were suggested by Keith Evans in his report, 'Using the Gift of Complaints' in relation to the national health service so that we can sort the problems out that it has in dealing with concerns that are expressed to it and complaints that are made to it. Effectively, we've got eight individual NHS bodies all with their own redress systems working slightly differently, whereas we could have one body, the tribunal, making decisions that are consistent across the whole of Wales, which my amendments in this section seek to do.

You said quite rightly that the tribunal is an independent judicial body and, when it comes to its reports, they are a matter for the tribunal, but I do welcome the correspondence that you've committed to have with the tribunal to make sure that it is aware of some of the things—and you were able to make suggestions about some of the things—it might be useful to include in their reports going forward. I think a far better way to make sure that it's going to be a more useful report is by allowing the National Assembly to require things to be reported in a format that the National Assembly thinks is appropriate and then for that report to be laid before the National Assembly so that there can be an appropriate opportunity to scrutinise it. At the moment, that report is very often posted onto the website. I'd be surprised if it gets a couple of hundred downloads over a 12-month period, frankly. I've been on there, I've had a look at it: it ain't much cop, if I'm honest with you. And it's certainly not much use to those children and young people and their parents who might want to glean useful information from it.

So, I'm very disappointed that you're rejecting amendments 11, 19 and 20. I do think that people want to see this power to direct. As I say, there was one single witness that appeared before the committee at Stage 1 who did not feel that it was appropriate to give this power to direct, and that was the former Minister. Every single other person was in agreement—. And that was the previous portfolio holder. Every single other person who appeared before that committee and every single other person who gave evidence to the committee in writing was unanimous in their opinion that the tribunal should have its powers strengthened with the opportunity to direct the national health service. So I do urge all Members in this Chamber to be conscious of that when they come to vote.

The question is that amendment 11 be agreed. Does any Member object? [Objection.] We'll proceed to an electronic vote. Open the vote. Close the vote. In favour 24, no abstentions, 27 against. Therefore, the amendment is not agreed.

Amendment 11: For: 24, Against: 27, Abstain: 0

Amendment has been rejected

Cabinet Secretary, amendment 30.

Amendment 30 (Kirsty Williams) moved.

I move.

The question is that amendment 30 be agreed to. Does any Member object? Amendment 30 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Cabinet Secretary, amendment 31. 

Amendment 31 (Kirsty Williams) moved.

I move.

The question is that amendment 31 be agreed to. Does any Member object? Amendment 31 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Cabinet Secretary, amendment 32.

Amendment 32 (Kirsty Williams) moved.

I move.

The question is that amendment 32 be agreed to. Does anyone object? Amendment 32 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Darren Millar, amendment 13.

Amendment 13 (Darren Millar, supported by Llyr Gruffydd) moved.

Formally.

The question is that amendment 13 be agreed to. Does any Member object? [Objection.] We'll proceed to an electronic vote. Open the vote. Close the vote. In favour 24, no abstentions and 27 against. Therefore, amendment 13 is not agreed.

Amendment 13: For: 24, Against: 27, Abstain: 0

Amendment has been rejected

Cabinet Secretary, amendment 33.

Amendment 33 (Kirsty Williams) moved.

I move.

The question is that amendment 33 be agreed to. Does any Member object? Amendment 33 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Cabinet Secretary, amendment 34.

Amendment 34 (Kirsty Williams) moved.

I move.

The question is that amendment 34 be agreed to. Does any Member object? Amendment 34 is agreed.

Amendment agreed in accordance with Standing Order 12.36.

Darren Millar, amendment 14.

Amendment 14 (Darren Millar, supported by Llyr Gruffydd) moved.

Formally.

The question is that amendment 14 be agreed to. Does any Member object? [Objection.] We'll proceed to an electronic vote. Open the vote. Close the vote. In favour 24, no abstentions and 27 against, and therefore amendment 14 is not agreed.

Amendment 14: For: 24, Against: 27, Abstain: 0

Amendment has been rejected

Darren Millar, amendment 15.

Amendment 15 (Darren Millar, supported by Llyr Gruffydd) moved.

Formally.

The question is that amendment 15 be agreed to. Does any Member object? [Objection.] We'll proceed to an electronic vote. Open the vote. Close the vote. In favour 24, no abstentions and 27 against, and therefore amendment 15 is not agreed.

Amendment 15: For: 24, Against: 27, Abstain: 0

Amendment has been rejected

Cabinet Secretary, amendment 35.

Amendment 35 (Kirsty Williams) moved.

Move.

The question is that amendment 35 be agreed to. Does any Member object? Amendment 35 is agreed.

Amendment agreed in accordance with Standing Order 12.36.