Grand Committee
Children and Families Bill
(11 years ago)
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The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, as I am sure all your Lordships are aware but I am nevertheless obliged to state, if there is a Division in the Chamber while we are sitting, which I suggest is highly likely, the Committee will adjourn as soon as the Division Bells are rung, or as soon as I have seen same on the Monitor, and resume after 10 minutes.
Clause 21: Special educational provision, health care provision and social care provision
Amendment 71
Lord Ramsbotham
“(5) Health care provision or social care provision which is provided for the purposes of education or training of a child or young person in addition to provisions included in subsections (3) and (4), if any, is to be treated as special educational provision.”
Lord Ramsbotham (CB)
My Lords, I shall speak to Amendment 72, the wording of which, as the Committee will note, is similar to that used by my noble friend Lady Greengross in her Amendment 71. I apologise to the Committee if it, quite rightly, thinks that I am being a bit military in my approach to Part 3 of the Bill. I am doing so because, in my experience, things work much better if they are corralled into an overall strategy.
As I mentioned earlier in our proceedings, the Bill is, or ought to be, all about child development, the heart of that being Clause 19(d), which refers to, “the need to support” every child or young person,
“and his or her parent … in order to facilitate the development … and to help him or her achieve the best possible educational and other outcomes”.
The key word in this is “development”. The current absence of a Minister for child development was the reason for my earlier question to the Minister about who was responsible, and therefore accountable, for overseeing the development of every child in the country. This concern arises from my view that the only raw material that every nation has in common is its people, so woe betide it if it does not do everything that it can to identify, nurture and develop the talents of all its people. If it does not, it has only itself to blame if it fails.
The absence of any apparent child development strategy is doubly disappointing. A number of recent initiatives seemed to suggest that the development of every child was becoming the Government’s default aim. For example, the introduction of an early years foundation stage in every child’s life, concluding with an assessment, appears to be a sensible way to enable entry to a 0 to 25 pathway. During our work on the link between social disadvantage and speech, language and communication needs, the All-Party Group on Speech and Language Difficulties, which I chair, was shown four other sub-pathways that were being worked on by the Department for Education, the Department of Health and others. One covered pre-birth and the first few months of life, the second up to and including primary school, the third roughly secondary school and transition into adulthood, and the fourth was for those at risk of becoming involved with the criminal justice system. Those seemed entirely sensible and appropriate because they pulled in all the players in those processes. I should therefore be very grateful if the Minister would let me know what the current status of these four pathways is and their relationship to the 0 to 25 pathway proposed for those with special educational needs.
Logic suggests that the early years foundation stage assessments should be turned into individual health, education and care plans and 0 to 25 pathways for everyone. Default education, health and care plans for the 81.2% of children who do not need help along the way, unlike the 2.8% on statements and the 16% on school action or school action plus plans, could merely be progression through the educational system, but it would be a plan. However, the Bill as presented, instead of seizing a priceless opportunity to bring order and logic into a system that requires the co-operation and joint working of so many different ministries and agencies, by laying down a default position and then highlighting how individual necessary alternatives are to be identified and delivered, does not contain the necessary strategy and leaves a number of key requirements unresolved. These include further assessments at various stages along a pathway to identify changes of need and oversight of the whole process.
Amendment 72, about which I am extremely grateful for the detailed legal advice of David Wolfe QC, focuses on one important part of special educational provision, as well as trying to seal a potential crack in the presumed strategy. The importance of speech and language therapy was highlighted for me when, as Chief Inspector of Prisons, I was wondering what could be done with and for the more than 60% of young offenders who were found to have speech, language and communication needs. If only those needs had been identified and challenged earlier in their lives, they might never have truanted or been evicted from school, or ended up in young offender institutions. Luckily, Lady Helen Hamlyn funded a two-year trial of putting a speech and language therapist into each of two young offender institutions. The two governors of these institutions were saying, within a week of the therapists’ arrival, that they did not how they had managed before they came along.
To cut a long story short, everyone agreed how invaluable their contribution was, because at last all young offenders could communicate with education, healthcare and disciplinary staffs, which enabled individual plans to be made. Despite this, I could not persuade either the Home Secretary or the Secretary of State for Education to pay for them, because speech and language therapists belonged to the Department of Health, whose Secretary of State in turn refused to pay, on the grounds that all such funding was delegated to what were then called primary care trusts. The development of thousands of children has gone by default, and the same could happen to millions more if speech and language therapy is not enshrined in government child development plans.
Therefore, I welcome the Government’s apparent intention to maintain the existing position, confirmed in both case law and the current Special Educational Needs Code of Practice from 2001, which, in Chapter 8.49, says that,
“since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision, unless there are exceptional reasons for not doing so”.
The new, separate definition of healthcare provision in the Bill creates a risk that speech and language therapists, because they are provided by the NHS to address this impairment, could be reclassified as healthcare provision, rather than, as currently, educational provision.
This raises two problems. First, parents could lose their right of appeal to the Special Educational Needs and Disability Tribunal. Secondly, healthcare provision does not have to be included in an educational health and care plan unless it is, to quote the Bill, “reasonably” required, which implies that it could be left out on cost grounds. Although Clause 21(5) mitigates the risk of reclassification, it does not remove it, and the rewording that I am proposing in Amendment 72 is designed to ensure unambiguously that the existing classification of speech and language therapy as educational provision is maintained. I beg to move.
Baroness Jones of Whitchurch (Lab)
My Lords, our Amendment 73 is in this group, and it has the same intent as that of the noble Lord, Lord Ramsbotham, and the amendment from the noble Baroness, Lady Greengross. We have just gone about it in a slightly different way. The issue is one of what should be classified as special educational provision. As the noble Lord, Lord Ramsbotham, quite rightly pointed out, this is important because, by its nature, this determines what issues parents can take to appeal, and we should make that classification as broad as we possibly can.
We have debated before in Grand Committee how broad a definition we are going to apply to special educational needs, and that we believe that a whole tranche of disabled children are not classified and included in that. This issue touches on that somewhat as well. As we said at the time, it is important to get a standard classification of special educational needs and disability included throughout the Bill. We have not tabled amendments to this clause to take that on board; however, earlier clauses ought to clarify it more clearly.
Clause 21(5) sets out that healthcare provision and social care provision can be classified as special educational needs if they are,
“made wholly or mainly for the purposes of … education or training”.
However, according to many in the sector, backed up by the legal advice that we have received, there is a concern that the new definition of the phrase “wholly or mainly” sets a higher threshold than that which exists. We have heard from, among others, David Wolfe QC, the adviser mentioned by the noble Lord, Lord Ramsbotham. That is why our amendment would remove “wholly or mainly” from the clause.
The initial draft of the Bill did not include a requirement for educational provision to be wholly or mainly for educational purposes. It stated that anything provided by the health authority was health provision and that anything provided by social care was, similarly, social care provision and therefore not enforceable or appealable to the tribunal. The new wording was introduced as a result of opposition to the initial draft but we still do not feel that it deals with this problem. I think the Minister will be aware that there is considerable concern about this issue, particularly around therapies such as those for speech and language, which may be classed simply as health service provision under this clause and therefore, apart from anything else, not appealable.
In addition, we have also received the following legal advice:
“Following case law dating back to 1989 the general position has been that any provision which is directly related to an educational need can be classified as educational or medical and it is for the tribunal to decide. Guidance has been given that speech and language therapy will normally be considered educational because of its importance in communication, whereas other therapies such as occupational therapy vary according to the type of difficulty the child has and how far the therapy relates to an educational objective. Tribunals have consistently held that where a provision has a beneficial educational aspect, and is directly related to the child’s educational needs, it can be described as educational provision and specified in the statement. This aspect needs to be set out in the current bill if parents’ rights are not to be eroded. The current wording set a higher bar and reduces the rights of the child and parent”.
This issue was raised briefly in the Commons by the Conservative MP Robert Buckland. At the time, the Minister there replied that,
“the clause maintains the existing right of appeal to the tribunal for special educational provision so that parents will not lose their current protections”.—[Official Report, Commons, Children and Families Bill Committee, 19/3/13; col. 372.]
However, this is not what the experts are telling us, so it would be extremely helpful if the Minister could clarify this and work with us to find alternative wording which would ensure that we are not raising the bar and eroding parents’ rights. In his letter to us following Second Reading the noble Lord, Lord Nash, wrote that,
“the Government recognises the concerns and is looking for ways to address them”.
I would be really grateful if he could tell us how far he has got in looking at ways to address these concerns, and whether he would now be prepared to find an alternative form of wording to address this issue.
Baroness Whitaker (Lab)
My Lords, I support my noble friend’s amendment very warmly. I think that the wording of the Bill must be changed because, although I understand that the Government consider that they can rely on case law to establish the primacy of the education purpose, their own draft SEN code suggests that more firmness is needed. I quote:
“Health or social care provision made wholly or mainly for the purposes of education or training must be treated as special education provision”.
Noble Lords might say that that is all we are asking, but the fact that they have to put “must” in the code suggests to me that there is an element of doubt. I suggest that certainty is what is required in the law, and the code simply amplifies the law.
Lord Touhig (Lab)
My Lords, I entirely endorse the arguments advanced by my noble friend Lady Jones of Whitchurch on Amendment 73. I spoke about this at Second Reading and argued then that the Bill must protect existing rights for parents and young people and not diminish them. I think we all agree on that. At present, parents rely on their right to appeal statements at a tribunal. However, if my understanding is correct, under the new system that the Bill will introduce, only provision which is deemed to be,
“wholly or mainly for the purposes of education”,
can be appealed in this way. This raises the threshold, as my noble friend Lady Jones said, and it restricts the ability of parents to uphold their rights and support the needs of their children. The removal of the three words “wholly or mainly” is, I think, absolutely necessary.
My noble friend referred to the letter that the Minister sent to all noble Lords following the Second Reading debate. She mentioned that he said that the Government would be looking at ways to address this matter. He also explained—and this gave me some hope—why Clause 21(5) was included in the Bill, but he added:
“As there is now a duty on health commissioning bodies to secure the health care provision in a Plan, this clause is no longer necessary to ensure that the child or young person receives the health care provision specified in the Plan.
However, retaining the clause does enable young people and parents to appeal to the tribunal in respect of health care provision where it is defined as special educational provision in accordance with the clause—as now”,
a point just made. We now need some clarity from the Government about precisely what they want to do about this part of the Bill.
Baroness Howarth of Breckland (CB)
My Lords, I declare an interest as the president of Livability, which is an organisation that cares for people with complex needs. I am very concerned about this issue because we have two colleges for young people aged 16-plus where their social and educational needs are met together. Sometimes it is quite difficult to differentiate between the two, as we found during Ofsted inspections. If young people have extremely serious difficulties that need perpetual health provision and you are trying to help those young people to learn skills—the sort of skills whereby they can sit and pick up a cup instead of screaming all day, which is how they are when they arrive—it can sometimes be difficult to differentiate between education, social care and health provision. I am simply asking that nothing in the Bill should make that even more difficult. Usually we have difficulty getting payment for the social element of these colleges, but recently we have found ourselves being given the social element without the educational element of the colleges. Some really difficult issues are emerging and I should like to stop them before they develop. I should be delighted if the noble Lord, Lord Nash, would one day visit Nash College.
Lord Addington (LD)
My Lords, can my noble friend give us some idea about how the Government will remove those things that are not for educational purposes in the case of a young person with complex needs or a problem that prevents them accessing the process of education? That seems to be what the noble Lord, Lord Ramsbotham, started with. Getting some clarification now about how that process will take place will be of help. If we have a system in place that gives some degree of confidence, I think that we can probably move on from this. If not, it will be a real problem.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I shall be brief, as we are keen to clarify this point. I shall speak to Amendments 71, 72 and 73 about the circumstances in which provision that would otherwise be health or social care provision should be treated as special educational provision. In doing so, I would like to comment on a couple of the points that the noble Lord, Lord Ramsbotham, made. If I understood him correctly, he said that we needed a child development strategy for every child. I would say that we have such a strategy in the massive reform programme that this Government have put in place for schools.
I will try to get my facts right because I know that the noble Baroness, Lady Jones, will write to me if I do not. We have just been told by the OECD that we came bottom—joint 21st with Italy and Spain, out of 24 countries—for our school leavers, and we have just been told by Alan Milburn that we are the most socially immobile country in Europe. That is why we have a schools strategy and a massive reform programme in place. However, this Bill is about SEN. I will write to the noble Lord, Lord Ramsbotham, about the four pathways that he mentioned. On training, which he also mentioned, I just signed a letter to him today on this point about initial teacher training and other professional development for teachers, which is founded on the teacher standards that were introduced in September 2012. Child development is an important part of those standards.
I turn to the amendments. During the pre-legislative scrutiny of the SEN provisions of the Bill, the Minister for Children and Families gave an undertaking to maintain the existing protections for parents in the new system. Clause 21(5) was added to the Bill before introduction in the other place as part of that undertaking. It seeks to replicate as far as possible the case law established under the present SEN legislation, which, in our view, makes clear that health provision such as therapies can be educational, non-educational or both, depending on the individual child and the nature of the provision. Case law has established in particular that since communication is so fundamental in education and in addressing speech and language impairment, it should normally be treated as educational provision unless there are exceptional reasons for doing otherwise. We have reflected this in section 7.9 on page 109 of the draft SEN code of practice.
I think we all share the aim of carrying the current established position through into the new system. I understand the concerns that have been expressed in this debate that the current drafting does not get this quite right. This is complicated legal territory and it has not been straightforward to find the right formulation, as evidenced by the different approaches taken by each of these three amendments. I know that various parts of the sector have sought legal advice on this issue; I understand that the amendment of the noble Lord, Lord Ramsbotham, follows the advice that the Royal College of Speech and Language Therapists received, and we are currently looking at that advice. The noble Baroness, Lady Jones, said that she also had received advice, and we would be delighted to look at that as well. I would welcome the opportunity to discuss this further and see what progress can be made with noble Lords outside the Committee. With that reassurance, therefore, I hope that the noble Lord will feel able to withdraw his amendment.
The Earl of Listowel (CB)
My Lords, before my noble friend does that, as I imagine that he may well do, I very much hesitate to speak in this debate. I have just been chairing a discussion on child development in schools. Attending it were head teachers, the former head of the TDA and a number of other experienced practitioners in the area that we have just been discussing. Unfortunately, I was four or five minutes late to this discussion so I hesitate to make any contribution to it. However, since the Minister referred to what is being done about the standards to ensure a better understanding of child development, which is very welcome, I should like to make two points.
First, in welcoming the effort by both the previous Government and this one in raising the status of teaching, and particularly in welcoming the advent of Teach First, we heard from the man responsible for Teach First in London. He said how successful the scheme is and that 30% of graduates were getting into the schools that needed their help most, so that really tough inner-city schools were getting these excellent graduates, particularly in science and maths. However, although he could speak only anecdotally, he said that he had met many of these teachers and they said they felt hopeless. They did not know how to manage the challenges presented by the young people they were working with. We need to get this right because otherwise we might lose the wonderful new crop of young teachers we are recruiting into the profession, who will make a huge difference to outcomes for young people.
The other point to arise from this meeting is that a generation of teachers has not learnt anything significant about child development. That means that head teachers and lead teachers today will not have learnt much about child development in their training. So, while I welcome what the Minister has said about the changes in the standards, the challenge presented by this issue should not be underestimated. I hope there will be ongoing discussions about what we can do in this area, which is vital for the educational outcomes that we want to see for our young people. We need to retain our new, young, enthusiastic teachers on the front line, help them to understand why children sometimes behave so challengingly and enable them to engage with them effectively. I apologise to the Grand Committee for intervening but I hope that it has been helpful.
Lord Ramsbotham
My Lords, I thank the Minister for that positive response and all those who have contributed to the debate. The fact that there is a strategy for schools proves my point because it is the strategy for the early years being hooked on to the strategy for schools which seems to be missing. The strategy for after-school transition up to the age of 25 is also missing. You have local government, healthcare, business initiatives and skills and others all joining in on this; it is not only schools. There is more to it and education is not only about what happens in school.
Accepting what the Minister has said, I am grateful for the opportunity to discuss this issue. I suspect that not only will the Royal College of Speech and Language Therapists, the Communication Trust and the people I am involved with wish to take part in this but so will other Members of the Committee because this is an extremely important issue. With that, I am happy to withdraw the amendment.
Baroness Brinton
“Special educational needs of severely bullied children
(1) Schedule (Special educational needs of severely bullied children) has effect.
(2) In this section and Schedule (Special educational needs of severely bullied children)—
“bullying” is unwanted behaviour that causes distress or harm, involves an imbalance of power or strength between aggressor and victim, is unwarranted and commonly occurs repeatedly over time;
“severe bullying” is behaviour that affects children so severely that they suffer trauma and psychological damage, which can also result in them missing school for long periods of time;
a “bullying incident” should be addressed as a child protection concern when there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.”
Baroness Brinton (LD)
My Lords, I shall speak also to Amendment 217. I am grateful to the authors of Amendment 127, which also refers to bullying. The amendments I have tabled may seem rather long but they are the result of a substantial amount of work by the APPG on Bullying and evidence from a number of anti-bullying charities, the police, head teachers, psychologists and academics, who have all given our APPG a substantial amount of evidence over the past 18 months.
It may be helpful if I remind the Committee of the definition of bullying. It is aggressive behaviour intended to cause distress or harm, involves an imbalance of power or strength between aggressors and victim, and commonly occurs repeatedly over time—not always, but sometimes. Children severely affected by it miss school for long periods, often self-excluding due to the trauma caused by the bullying. Research shows that around 16,000 a year are now out of school because they have been so severely bullied. However, provision for them out of school is woeful.
To understand, we need to go back a step and look at bullying generally and provision to stop it in schools. Any child can be bullied for their race or their special abilities and, shockingly, Scope reports that disabled children have a high level of being bullied, as do children with special educational needs and even children with medical conditions. I met a young person with asthma a couple of weeks ago who reported being bullied during an asthma attack and a young lady who, on her return to school having had a year out for chemotherapy on a brain tumour, was bullied because she was bald. This was despite the school having a whole-school assembly to explain both her cancer and her treatment.
Baroness Howe of Idlicote (CB)
My Lords, I have put my name to the two excellently researched amendments of the noble Baroness, Lady Brinton.
Bullying is absolutely rampant throughout all stages of people’s lives. If we can find a way to eradicate bullying from the earlier stages of children’s lives, that would be a hugely important first step. I very much like the thought that the noble Baroness expressed of having champions in schools to carry that through.
Bullying can have such severe consequences on children that they cannot attend school. As we have heard, there are 16,000 self-excluding children in England between the ages of 11 and 15. They are very ordinary children. Many develop temporary mental health issues, resulting in self-harm, depression, anxiety, panic attacks and even suicidal tendencies. Those children want to be able to go to school and to have friends, and may well have aspirations to go to sixth-form colleges and then on to university.
In some schools, children who are being badly bullied and do not want to go to school are offered places in the schools’ own exclusion units, but those units are largely for disruptive and difficult children or children with learning difficulties, and the children we are talking about just do not fall into that category. Of course, once there, if they go, they are further bullied or find the work too easy. If children self-exclude from schools for reasons of bullying, there is no alternative provision other than the pupil referral unit, which is for challenging, aggressive children—the bullies themselves, as we have heard. Those children are eminently recoverable with a short stay—I think that, for the majority, it is approximately one year—in an intensive care unit for such bullied children.
These children are often absent from school for months—in some cases, at least a year—before something happens about their situation. Some parents are threatened with prosecution for their child’s absence. The school then advises the parents to remove their children from the school roll to avoid prosecution. Once the child has been taken off the roll by the parent, of course, the local authority and the school have no responsibility for that child’s education.
We have heard that it is the experience of Red Balloon Learner Centres over 17 years that more than 85% of the children who have been to one have a learning difficulty when they first arrive. This manifests itself in behaviour such as an inability to think, concentrate, think logically, conduct lucid conversation, play, work with others or be a team player—all these sorts of things are reflected in their behaviour. Many children who are severely bullied do not have special educational needs prior to this; there is no doubt about that. Most of the children who fall into this category are intelligent, well behaved, co-operative and looking for self-improvement, and most are eminently recoverable, given that appropriate environment. Thus the SEN provisions should be regarded as being temporary and short-lived but intensive. If it were accepted that severely bullied self-excluded children who were out of school were children with SEN, then they could be statemented swiftly and efficiently within less than a school term and referred to a specialist intensive care unit for a short-term placement on a combined academic and therapeutic programme. The vast majority of these children would recover and be able to return to mainstream education.
It is particularly interesting to look at some of the case studies that have been supplied by Red Balloon. In case one, according to the child and adolescent mental health service, a girl now in year 11 had, at the end of year 9, requested a referral into Red Balloon because of the severe bullying and subsequent trauma that she had experienced. The local authority argued that the student was on roll at an academy and so the decision whether or not to refer remained with that academy. The academy was perfectly clear that it would not consider any referral into alternative provision, for cost reasons. The academy has its own provision for vulnerable students, and argued that the student’s needs could be met by its on-site unit. The student is now approaching the end of year 11. She has not attended at all since February. There were multiple issues prior to that date, and she has no chance of attaining any qualification this year. In a recent review, the representatives of CAMHS argued that without a therapeutic element to the programme, it was doomed to failure from the outset.
Case two concerns a year 9 student who was form captain, captain of hockey and netball, predicted straight As at GCSE and extremely popular with her year. She shared indiscreet photos of herself with her boyfriend, and when they broke up he posted those photos over the internet. Subsequently she was so severely bullied by other students in the school that she tried to take her own life three times in one night. In desperation, her mother drove her to the A&E department of the local hospital, and a paediatric specialist on duty recommended that this girl be educated for a temporary period in a small centre such as Red Balloon. The parent contacted the centre, which in turn contacted the school and the local authority, but the school refused to contemplate this referral and suggested that the girl could go to its inclusion unit. This required her walking through the school where the bullies jeered at and humiliated her and made crude comments. Inside the unit were children who knew of the cyberbullying and continually bullied her. Other children had special learning needs. There was no one like her in this unit. She refused to go and, unsurprisingly, was out of school for seven months. Eventually, despite all efforts to get her referred to Red Balloon and to find funding, her health deteriorated to such an extent that her mother sent her to live in Israel with her grandparents. Four years on, this girl, now 19, has completed no external exam, has not gone to sixth form and has no prospect of a university career, even though that was clearly predicted at 14. We are likely to face that kind of situation more and more frequently given the position we are in and all the possibilities that the internet provides us with, many of them, sadly, not desirable.
I hope that the Minister will take notice of the importance of severe bullying because I am not certain at this stage that the Government are taking it as seriously as they ought. That is one of the reasons we have all spent a great deal of time on working through this programme.
Baroness Jones of Whitchurch
My Lords, before I speak to Amendment 127, I should say that I support the amendments tabled by the noble Baroness, Lady Brinton. I pay tribute to the considerable amount of work that she has done in campaigning on the needs of severely bullied children.
As the noble Baroness said, this is a growing and worrying issue. This is backed up by a recent DfE report which identified that 47% of children reported being bullied at age 14, 41% at 15 and 29% at 16. This is a significant proportion of young people. Many report that the bullying is ongoing and for some of them it is an everyday event. There is also growing evidence that this problem particularly affects children with disabilities and special educational needs, who are, apparently, three times as likely to be bullied, with verbal, emotional and physical bullying prevalent. Again this is relevant to the debates that we have had in Committee. As the noble Baroness said, many of these children do not come to the attention of the authorities but some are so traumatised that their behaviour, school attendance and mental health begin to be affected. Figures have been cited of more than 16,000 young people at any one time refusing to attend school.
We support Amendments 74 and 217, which address these issues in a structured and helpful way. They would ensure that the Secretary of State produced a strategy and statutory guidance to prevent bullying, and provide effective recovery programmes for those affected and a temporary SEN statement to access help and support. These amendments, combined with ours, would go a considerable way towards addressing the poor educational provision and lack of consistency in meeting the needs of children temporarily unable or unwilling to attend school.
Our amendment seeks to introduce a new clause to widen out the concerns to cover children who, because they are bullied, suffer from a mental health problem or a medical condition and are unable to attend mainstream school for a period of time. We are attempting to address these widespread concerns. These issues were flagged by our colleagues in the Commons and were mentioned by a number of noble Lords at Second Reading.
In addition to the incidence of bullying, the Teenage Cancer Trust and CLIC Sargent have highlighted the fact that there are 3,600 new cancer diagnoses in children and young people every year, which can also have a significant effect on a child or young person’s education. There are other reasons why children and young people may be absent from school for a long period, including trauma, the loss of a family member or being the victim of violence or abuse at home. These children and young people should not have to suffer because of their experiences. We should do everything we can to ensure that they are able to achieve their full potential. This includes putting in place support systems and ensuring that alternative temporary education provision is as good as it would have been in mainstream education.
In his letter to Peers after Second Reading, the Minister argued that temporary access to SEN status was not the right way forward. He said:
“The definition of Special Educational Needs is deliberately broad, and it must allow local professionals the freedom to make judgements on who it applies to … However, for children who require statements of SEN it rightly takes time to make the appropriate assessments and establish the right provision. We hope and intend that the consequence of bullying can be resolved quickly … As with statements, education, health and care plans are intended for longer-term, more complicated needs, rather than for providing rapid support”.
While we understand that assessments and EHC plans take time, it is important that we also have mechanisms for addressing the needs of those children who have more immediate needs and fewer long-term needs, to make sure they do not fall through the gaps. I was interested that the noble Baroness, Lady Brinton, said this afternoon that temporary statements are indeed available, because that certainly had not been drawn to my attention. Having that spelled out in more detail goes some way towards addressing this issue.
We believe that the amendments spoken to this afternoon provide a suitable package of support for severely bullied children and others temporarily unable to attend school. We hope the Minister will agree to reconsider the Government’s position, and to come up with a scheme that is as good as those amendments put before him today.
Baroness Walmsley (LD)
My Lords, I strongly support the amendments of my noble friend Lady Brinton, and would have added my name if I could have been sure of being here today to speak to them. However, here I am, very strongly supporting them.
Many thousands of children fall into the category of “severely bullied” but are invisible, for two reasons. One is that often the bullying takes place outside school, on the internet. The school does not see it happening. Unless school staff look carefully at the attendance record, or the parent is sufficiently distraught to bring it to the school’s attention, the school may not notice what is going on. The other unfortunate aspect is that often these children are quite shy; they take themselves off, rather than put up with it. They become visible to the rest of us only when they attempt suicide, or actually succeed. Then they land on the front page of the local or national newspaper. That is a tragedy.
When the school becomes aware of this problem, it often suggests to the parent that they educate the child at home. This is not the answer. Many parents are not capable, either professionally or economically, and cannot take the time off work to educate the child at home. They need specialist, professional help. Nor is it an answer to send the children to PRUs, for the reason my noble friend Lady Brinton has mentioned. Indeed, I would say it is cruel to expect these children to attend a PRU with a group of children of whom they are often frightened. They are square pegs in round holes in PRUs, because they are often children of great ability, and the provision offered in PRUs will not address their problem and allow them to achieve their academic potential.
Virtual schools can be an answer, but not the whole answer. These children need therapeutic and restorative help from well trained people. That is why my noble friend has suggested that what is needed is temporary special educational needs provision. As to the cost, yes, the sort of provision these children need is expensive, but it lasts for only a short period. If it is done well, many of these children go back into a mainstream school—perhaps a different one—after a relatively short time, during which their confidence has been built up and their mental health problems have been addressed.
If this does not happen, it is not the school that pays but the state that pays later. These children’s potential has not been realised; they do not have the qualifications that they could have; they do not have the well paid jobs that they could have, so do not pay so much tax; and there may be ongoing mental health problems that have to be addressed later in life by the health service. Although the school saves money by not paying for this provision in the short term, the public purse does pay—and, of course, the person who pays most is the child themselves. We have a duty to give these children back their education and indeed their lives. Provision is available, and it could be expanded if only a more sensible approach were taken to ensuring that the funding became available for these children. It is not a lot to ask and, compared to many children who need special needs provision for the whole of their school life—which of course very often they deserve—these children require it for only a very short period. What they need is very special provision from people who really understand what they have gone through and what needs to be put into place to enable them to face an ordinary education again.
Baroness Whitaker
My Lords, the amendments in this group are particularly important, with respect to one group of children in particular. I declare an interest as chair of the Department for Education’s stakeholder group on the education of Gypsy, Traveller and Roma children. These are the children, particularly Irish Traveller and Gypsy children, who between primary and secondary school experience a 20% drop in attendance; one-fifth of children drop out. From the material that I have seen, a very large part of this is due to bullying, although there are also cases when the parents are so mistrustful of education and unwilling to expose their children to the violence that they experience that they are complicit. Whatever the reason, there is a gap in these children’s education. They are a small number of children so they do not always appear in the aggregates, but if you compare them to the population of Gypsy and Traveller children, the numbers are huger than for any other ethnic group in our country. That is why these amendments are of vital importance.
The noble Baroness, Lady Brinton, mentioned alternative education. I place on record that I cannot speak to the fourth group of amendments in the name of the noble Countess, Lady Mar, the noble Lord, Lord Patel, and others, about suitable alternative education, which in a way is parallel to the group that I ought to be discussing now. That, too, has a particular relevance not only to drop-out children but to children of Traveller parents. I hope that in some way my support for those can be recorded, even though I shall have to be chairing another meeting then.
The Earl of Listowel
My Lords, very briefly, having visited a Red Balloon school, having had the privilege of being invited to visit one and speak to some of the pupils, I should like to reinforce what has been said by other Members of the Committee today, particularly the concerns about whether pupil referral units—I have been to those as well—would be an appropriate environment for many of these young people.
I would also like to bring to the Committee’s attention the latest research from Professor Jackson, the academic who had a very important role in highlighting the deficits in educational outcomes for looked-after children. The latest research has been into children with complex needs across Europe and in this country. She has found that in other countries these children find that their school is a refuge for them; it is a place where they feel safe so that, no matter how disturbed their family is, at least their school is a refuge. She looks particularly at Denmark but also at several other continental countries, and she draws a stark contrast with the experience of children in England, who do not find a refuge in their school. That is very concerning. It is also relevant to this particular group of vulnerable young people whom we are discussing now. Finally, I thank the Minister who was so kind as to meet me when I had concerns about this issue. I am grateful for his close consideration of this matter.
Baroness Morris of Yardley (Lab)
My Lords, I add my support to the amendments tabled by the noble Baroness, Lady Brinton, and my noble friend Lady Jones. I do not want to go over the points again as we are trying to move quickly, but it may be a case of weight of Members as everybody is agreeing with everybody at the moment, and it seems that most of the Committee has spoken against the Minister. To add to the number of voices, I want to raise two or three points that have not come out.
My noble friend Lady Jones said that these are amendments about children who are temporarily unable to attend school. Those children’s needs have not been addressed by either Government through legislation. There is widespread support for the Bill generally, as it deals with some of the most vulnerable children in our society. We are all on side on this, but for this group of children who are temporarily unable to attend school, there is no underpinning in legislation to help them. That is a problem. Even if the essence of the content of the amendments is unsuitable, the Minister needs to put something forward. If we do not do that in this legislation it will not happen, and the problems we have been talking about will continue.
We spend an awful lot of time trying to get children who do not want to go to school back into school. We take their parents to court. We have welfare officers who chase them. We bring them in and have mentoring, and so on. But here we have a bunch of children who want to go to school but cannot go for reasons of their mental health, bullying or whatever. We should think about that. If we were to put as much effort into children who want to go to school, but cannot do so temporarily, as we do with those who do not want to go to school, we would probably have a stronger education system. It is that sort of area that is missing. Anyone who has ever done any teaching will know that if a child has been away, it is almost impossible to help them catch up when they come back. The impact is not just on their learning but on the learning of the rest of the class. If we address this issue, we will be meeting the needs of vulnerable people.
I add my support to the Red Balloon argument. I, too, had the privilege of visiting a Red Balloon school in Cambridge. I went not as an enthusiast of online learning as I, too, thought that education was about mixing with children socially. An obvious point that I missed was raised. For some children who are temporarily out of school, it is the way to get back. If we can get children learning online, where they do not have to face other young people and adults, it is a stepping stone to getting back. Finally, whether we like it or not, there is an incentive in the system for schools not to purchase provision outside their own school. A statement for children who have special educational needs mitigates that incentive in the system for the school not to look to resources outside itself. For this group of children, the incentive is still there for the schools to handle it themselves. We need a bit of help on behalf of these children so that we incentivise, make possible or demand that resources outside the school can assist for what may be no more than a week or a month. If it is only for a week or a month, and the children continue to learn, it could do their future education a power of good.
The Countess of Mar (CB)
My Lords, briefly, I want to clear up a misconception that both noble Baronesses, Lady Walmsley and Lady Brinton, seem to have. Online and joined-up learning is available to schools because we have it for children with ME. I shall speak about it more on my amendment, but I want the Committee to know that local authorities can provide it.
Lord Nash
My Lords, I shall speak to Amendments 74, 127 and 217 regarding severely bullied children and the education of children unable to attend a mainstream school. I thank my noble friend Lady Brinton for raising the important issue of bullying and the needs of young people who are bullied. As the noble Baroness, Lady Jones, said, my noble friend has been a great advocate for children and young people whose lives have been blighted by bullying. Bullying in any form and for any reason is totally unacceptable and should never be tolerated in schools. Bullying can instil fear, damage self-esteem and reduce academic attainment. We have a considerable campaign in place to combat cyberbullying, which, as my noble friend Lady Walmsley mentioned, can be particularly unpleasant. As our reforms work their way through the school system, and behaviour management strategies improve—as I believe that they are substantially in schools across the country—that should help in this regard.
The amendments broadly cover three areas: a call for bullying to be defined in law; measures to prevent bullying happening in the first place and to tackle it when it does; and provision for those who are the victims of bullying, particularly those who are severely bullied.
The definition of bullying outlined in Amendment 74 suggests that bullying will involve an “imbalance of power” and is repeated behaviour that causes physical or mental harm. These elements are likely to be involved in many instances of bullying, but not all of them. The definition of severe bullying outlined in the amendment refers to behaviour that affects children so severely that they suffer trauma and psychological damage. There is a risk that that could cause confusion for schools, because the same bullying activity could be treated differently according to the effect that it has on the victims, rather than the act itself. Although we acknowledge that the support should take account of the effect, it is important that there is consistency in how schools manage the behaviour of pupils.
There will always be exceptions to whatever definition is put in place, which is why we consider that these matters are best placed at the discretion of head teachers and teachers. We outline what constitutes bullying in our advice to schools and we consider that that is the best place to do so, rather than through a strict definition in law. A legal definition could, among other things, rule out behaviour that common sense might suggest is bullying but may not be captured by a law.
Turning to my noble friend Lady Brinton’s point about guidance being in one place, it is of course important that guidance is practical and manageable for those using it. We are very happy to look at how the different pieces of guidance fit together and cross-refer, in particular, in the current consultation on the code.
Turning to preventing bullying in the first place and tackling it when it does, as different schools face different issues, we do not want to prescribe specific anti-bullying strategies. Instead, we want to allow schools and local authorities to address bullying in the light of the needs and circumstances of their schools and their pupils. I believe that our current position provides the right balance between requirements in law, flexibility for schools and strict accountability.
All schools must have a behaviour policy with measures to prevent bullying. It is up to them to develop their own strategies, but they are now clearly held to account for their effectiveness in doing so by Ofsted. Since 2012, it has been a requirement for school inspectors to take into account issues relating to bullying, harassment and discrimination. In addition, we provide schools with advice, with links to several anti-bullying organisations for specific advice.
Turning to provision for children who are bullied, the starting point should be the needs and welfare of children and young people and the state of their mental and emotional health. Schools and local authorities should provide support in a proportionate and tailored way to meet their needs. The new draft SEN code of practice considers that developing a graduated response to the varying levels of SEN among children and young people is the best way to offer support, and this can include the needs of bullied children. There is no separate legal status of a temporary statement. However, local authorities and schools are free to use key elements of the statementing process to make local arrangements.
The causes that affect the well-being of children and young people will be relevant to how those needs are best addressed, but are not the best guide to the level of need. A child’s well-being could be severely affected by a variety of things, including bereavement, family upheaval or severe bullying. It could result from a range of factors that taken in isolation a child could cope with, but taken together have a severe impact. It is important, therefore, to avoid creating a hierarchy of causes and prescribe what the response should be.
Schools know their pupils. They are alive to changes in behaviour, character and attendance. They should offer support quickly, based on the need they identify, and there is a wide range of options that they should consider, from asking the pastoral team to keep an eye out to providing formal counselling, engaging with parents, referring to local authority children’s services, completing a common assessment framework and referring to child and adolescent mental health services, including whether to assess for SEN. The circumstances that my noble friend describes will often need swift support. An EHC plan is intended for those with the most challenging, complex and long-term needs. This is reflected in the amount of time that it will take to deliver an EHC plan—a maximum of 20 weeks under the reforms. In many cases, offering a child or young person SEN support in the first instance will be much more appropriate, and faster. Giving a child or young person an EHC plan is a significant step and may not be necessary.
No child should ever be forced out of school because of bullying. In extreme cases, it may be necessary to make other arrangements so that a bullied child can access the good education they deserve.
In response to the concerns raised by Amendment 127, I should reinforce that local authorities already have a duty to arrange suitable education for any child who would not otherwise receive it. Suitable education is defined as,
“efficient … education suitable … to the child’s age, ability and aptitude, and … to any special educational needs the child may have”.
The duty covers all compulsorily school-age children who are not receiving suitable education. This could include pupils who are unable to attend a mainstream school because of bullying, but it is not limited by the reasons for a child being unable to attend school.
The duty is also not limited by the length of time a child will be missing education. For example, statutory guidance on the education of children unable to attend school because of health needs states that alternative arrangements should be put in place for children missing 15 days of school or more, whether consecutive or cumulative.
Separate statutory guidance on alternative provision, issued in January this year, sets out that parents, pupils and other professionals should be involved in decisions about the use of alternative provision. It also states that there should be clear objectives and arrangements for monitoring progress.
My noble friend Lady Brinton made a point about the shortage of alternative provision. I am delighted to tell her that already, under the free schools programme, we have approved 33 new alternative provision providers. So far as Red Balloon is concerned, I have met Carrie Herbert. I have initiated conversations between her, the department and the New Schools Network, and I hope that she has taken on board what they have said about any future applications she may make under the free school proposals. However, I cannot help but wonder whether such a bid, if successful, would be allowed under a Labour Government, as it would be not a parent-led academy but a free school run by professionals, as indeed are most AP schools and special schools.
I should like to consider and investigate further the point about disincentives made by the noble Baroness, Lady Morris, who I know is very experienced in these matters.
I hope that I have been able to reassure the noble Baroness that we are deeply concerned about bullying and bullied children. We have measures in place to prevent and tackle bullying, and the safety net she is seeking for pupils who are unable to attend school is already in place. I therefore urge her to withdraw her amendment.
The Earl of Listowel
My Lords, I am most grateful to the Minister for his reply and for making clear the standards regarding alternative educational provision for those outside mainstream schooling, for whatever reason.
On the guidance, perhaps he can look at the issue of children who are bullied being placed in pupil referral units. It may be helpful to have some clarity in that regard. Maybe as a general principle, something along the lines of guidance that states that if a child is severely bullied a pupil referral unit should not be the first choice of placement would help in these considerations.
Lord Nash
I am very happy to do that. I am fully aware that it is obviously not appropriate for a bullied child to be placed in a pupil referral unit with other children who themselves are there because they have been guilty of bullying. It is something that we will look at further.
Baroness Howe of Idlicote
My Lords, perhaps the Minister could speak a little further about what I mentioned at the beginning—bullying being relevant not only to children; it goes on into adult life in all forms of employment. Perhaps that should encourage everyone to spend rather more time thinking about how important it is to eradicate bullying earlier on.
Lord Nash
I could not agree more with the noble Baroness’s point: habits formed early or seen in the home life are difficult to break. We must constantly do all we can, particularly in our education system, to break such bad cycles. I take the point and I would be happy to discuss it with her further.
Baroness Brinton
My Lords, I am very grateful to the Minister for his response. Perhaps I could briefly take each of the three areas that he outlined. I would be grateful to talk to him and his civil servants about the definition of bullying because it seems to me, and I am sure to others, that the key is the imbalance of power. Most schools would accept that, although there may be some other issues around the edges, the imbalance of power is absolutely at the core between the aggressors and the victims. I am also grateful to the Minister for saying that he would be happy to look at guidance again. I hope that he would be happy to have a meeting with some of us and to report back to us on progress there.
However, there is a concern. I am pleased that there are 33 alternative provision centres but, for 16,000 children, that is not a very large amount. The Minister also seemed to echo the response that the DfE has given elsewhere about there being a lack of understanding of the importance of virtual or cyberlearning access. That can often be the transition into education, for exactly the reasons that the noble Baroness, Lady Morris, outlined. I hope therefore that it might be possible to continue the discussion outside Committee. For the moment, I am certainly happy to withdraw the amendment but I warn the Committee that I will be bringing something back on Report.
“Early-years area SEN co-ordinators
(1) Local authorities must appoint sufficient full-time equivalent members of staff (to be known as “early-years area SEN co-ordinators”) to have responsibility for coordinating provision for children in Ofsted-registered early years settings other than maintained nursery schools.
(2) In assessing sufficiency of staffing levels under subsection (1), the local authority must have regard to—
(a) the number of children with special educational needs in its area registered with early years settings to which subsection (1) applies; (b) the number and geographical location of early years settings to which subsection (1) applies.(3) Regulations may provide for—
(a) further considerations to be made by local authorities in exercising their duties under subsection (1);(b) the specific responsibilities of early-years area SEN co-ordinators.(4) The Secretary of State shall publish guidance to local authorities to assist in exercising their functions under subsection (1).
(5) Local authorities must publish information on the provision of early-years area SEN co-ordinators as part of exercising their duties under section 30 of this Act.”
Baroness Jones of Whitchurch
I am covering for my colleague here, so I am doing a double act.
Amendment 75 proposes a new clause, which very much picks up on the point that the noble Lord, Lord Ramsbotham, made in the debate about the importance of early identification. We believe that identifying and supporting children with SEN as early as possible is the most important factor in improving their outcomes, so our new clause would put early years area SENCOs on a statutory basis, like school SENCOs. It would require local authorities to employ enough of them to support all the identified needs locally. Clause 22 requires local authorities to seek to identify children and young people in their area who may have SEN. Our amendment would insert “as early as possible”, which again echoes the points we made in the earlier debate.
The professionals who work with children have a crucial role to play as the first educators with whom those children come into contact. A number of issues such as speech and communication problems, developmental delay, behavioural issues and literacy problems can be better addressed by having a good quality early years provider, meaning that children start school in a much better position than they otherwise would have. Fewer resources would then be required in later years, so the case is well made and cost effective.
However, the early years workforce is typically the least qualified in the education sector, while cuts to local authority budgets have meant that councils have cut their training budgets for early years staff by 40% since the election, resulting in many cutting back on the early years area SENCOs that they previously employed to provide advice and training in early years settings. Yet the support that they provide is now needed more than ever. A recent Communication Trust project, Talk of the Town, evidenced that, across a federation of schools, children and young people’s speech and language needs were underidentified by an average of 40%. The Communication Trust says that it,
“remains concerned over how the Bill will ensure that the mechanisms for identification will work in practice across all educational phases and also on local authorities’ ability to identify needs as early as possible, and to respond to these needs”.
The NDCS, the RNIB and Sense are also concerned that overall proposals do not place sufficient emphasis on the importance of early years support for children with sensory impairments and their families.
Labour tabled these amendments in the Commons. At the time, the Minister said that he would reflect on whether and, if so, how some of the good practice of area SENCOs could be reflected in the code of practice. As I have just hinted, I have only just acquired this brief this afternoon. I have looked at the code of practice and I am struggling to see where that might be. There is certainly reference to maintained nurseries having a role, but nothing that spells out the role that area SENCOs can have with the more diverse group of early years providers. I look forward very much to hearing what the Minister has to say about that, but I hope that we can agree that more can be done within the Bill and the code to emphasise the importance of these early years area SENCOs. I beg to move.
Lord Ramsbotham
I rise to support this amendment, and to speak to Amendments 79, 108, 116, 128 and 238. I am glad that the noble Baroness mentioned the importance of assessment and intervention as early as possible, particularly for this area. I was very struck last Wednesday, at a meeting with the Minister, when he confirmed that only just over 10 years ago, 80% of communication between young people was verbal and 20% electronic. That is now reversed, with 80% being electronic and only 20% verbal. We need verbal communication above all to enable us to engage not just with teachers but healthcare workers, family, friends and ultimately with employers and customers. If we are to enable our children to live in today’s world, it is crucial for them to communicate with each other and for those who have to engage with them to help.
Amendment 79 requires schools and registered early years settings to identify special educational needs while offering guidance on how to do so. This is very important because, as we discovered when doing the report, which I have mentioned several times, the health visitors who were doing the early assessment in Northern Ireland were extremely glad that they had been trained to do so by speech and language therapists—not that they could offer therapy, but at least they knew what signs to look for to alert them that somebody had a problem. This is very important, and it is a lesson that should be applied right across the country.
Amendment 108 extends local offers to include access to services for children who are educated in non-maintained early years settings. It should not be restricted only to those with EHC plans, which, for the vast majority of people who have children with speech, language and communication needs, do not make them eligible for any additional support. That is wrong. The people with speech, language and communication needs do need support to enable them to engage. It is not just for those on EHC plans, which, as we know, is a small proportion of the whole.
Amendment 116 requires local authorities to inform parents of what special educational needs and local office support is available to children educated in non-maintained early years settings. This is again something that should not be left to chance because, as we know, there is a vast variety of provision and a vast amount that parents do not know or understand and with which they need help. Somebody has to co-ordinate the giving out of that advice, which suggests that local authorities have a role to play.
Amendment 128 makes local authorities responsible for special educational needs provision to those who have them identified in private, voluntary and independent early years settings, and for establishing the necessary mechanisms to enable and ensure that both identification and provision are available. All those may seem very much the same, but what they are saying collectively is that there is a duty here for the local authorities to make certain that identification and provision are available for all children in the local authority area, whether they are in mainstream or PVI settings. We must not let that go by default.
Amendment 238 highlights something that else that is lacking and is not clear from the Bill. Schedule 4 to the Bill amends the Childcare Act 2006 to require the registration of childminder agencies and certain childcare providers on childcare registers. However, the Bill is currently unclear about the position regarding private, voluntary and independent providers. As nearly 80% of the early years providers come from the private, voluntary or independent sector, this seems to be a gap that needs to be filled. We must ensure that everyone is covered. I am not simply saying that there is a gap; I am trying to suggest that there may be a way out of this. I suggest that all childminder agencies should be required to employ a SENCO, and that all non-maintained providers—that is, all the PVI providers—should be required to register with one of these childminder agencies. In that way, the SENCO can relieve the PVI of what the Government have said that they do not want to do, which is to belabour it with too much bureaucratic work that it has to do. A SENCO with the same status as the others would be able to act as a bridge between these 80% of providers and the local authorities to ensure that every child is covered.
Again, this may sound complicated, but I say to the Minister that the Communication Trust and others, who have thought this through and drafted this amendment, which I am very pleased to put forward for them, are very happy to engage with officials to discuss how this might be provided for, and to make certain that the gap is covered. The Communication Trust includes those working in the area now, and we have contacts with the Local Government Association, which I know would be very happy to contribute.
Baroness Perry of Southwark (Con)
My Lords, my concern in this whole topic is that I make a fair estimate that a lot of childminders are not trained or equipped to identify children with special needs. Surely the agency that ought to pick up special educational needs very early is the district nurse, who visits in the very early stages of a child’s life. One of the things that they are trained to do is to test for special needs. Is this not an opportunity, in this Bill that is trying so hard and so admirably to bring together all the different services, such as health services and educational services, to tie up the measurement, the testing and the observations that a good district nurse will make of a baby—and that I guess a midwife would make—to ensure that this is passed on to the childminders? Here we are very much occupied, rightly, in pointing out the things that need to be done when a child has been identified, but there is very little about how the identification takes place. I would be grateful if the Minister could make some reference to how this could be brought about. It is not asking for anything new; it is asking for exactly what the Bill tries to do, which is to bring the bits together.
Lord Storey (LD)
My Lords, I very much agree. On the one hand, it is hugely important that there is early identification and early intervention. I guess that the move towards childminder agencies will ensure a more codified standard. However, there are some cracking, fantastic individual childminders. There is a danger that we will lose that whole body of people who do not want to be part of an agency but who have real talent and expertise, as we go headlong to have agencies which have to do all the following things. I am quite nervous about that move. As we have heard, district nurses and midwives have a huge part to play in early identification. We need to be very careful about how we move in that direction.
The Countess of Mar
My Lords, I support the noble Lord, Lord Ramsbotham, and the noble Baroness in their amendments. When my elder granddaughter came to visit us, we found it very difficult to understand what she was saying. When she got to the age of three and a half my husband, who was a schoolteacher, was saying, “Huh, huh, huh” or “Ber, ber, ber” to her to try to get her to pronounce things. My daughter got into a furious rage and took her home, but then realised that the child could not communicate and was getting very frustrated because we could not understand what she was saying. She took her to a speech therapist. On the health service, it would have been 14 or 15 months before she could get help, so she took her privately. My granddaughter was diagnosed as being quite severely dyspraxic. She struggled through school but got her A-levels and is now deliriously happy at university doing a course in fine arts, restoration and conservation, which is right up her street. She was caught early, which is so important. She will have a career; everyone wants someone who can conserve things. She has been to the House and visited the conservators.
It is important that we catch them early. My granddaughter started off being able to speak at the age of nine months, but then had an accident involving a head injury that was not picked up, so midwives or district nurses would not have seen that. The noble Lord, Lord Ramsbotham, and the noble Baroness have an important point.
Lord Ramsbotham
I just say to the noble Baroness and the noble Lord, Lord Storey, that I was referring to the assessment required now in the early years foundation stage, which must be carried out by health visitors. I was saying that that is a compulsory healthcare test. I was mentioning that the healthcare visitor to whom we spoke in Northern Ireland mentioned the value that she had had from being trained by the speech and language therapist to identify the particular triggers for speech and language difficulties, which I believe ought to be common practice everywhere.
Baroness Northover (LD)
My Lords, this debate has covered the important issue of SEN in early years settings, and noble Lords have been probing a perceived gap in the legislation in that regard. Clearly, as noble Lords have said, many of the duties in Part 3 apply only to maintained nursery schools, not to other early years providers, which has led to concerns that children in playgroups and independent nurseries or with childminders might not have their special educational needs met. We reassure noble Lords that that is not the case. Duties are in place throughout the Bill and through the Childcare Act 2006 which should ensure that special educational needs are identified and addressed in early years, wherever a child is.
I point the noble Baroness, Lady Jones, who I realise leapt in having not realised that she was about to deal with this amendment, to page 70 of the draft guidance, which is on the role of the SENCO in early years provision, so that she can have a look through that.
Amendments 116 and 108 seek to include early years provision within the local offer. We absolutely agree that this should be the case. Perhaps when I have explained some of these areas the noble Lord, Lord Ramsbotham, will be reassured and will want to see whether that meets most of the concerns of those who were advising him.
Schedule 1 to the draft Special Educational Needs (Local Offer) Regulations 2014 already makes clear that the local offer must include special educational provision from,
“providers of relevant early years education”.
These providers are explicitly referred to in paragraph 1(a) of that schedule. The regulations also require the local offer to include the arrangements that such providers have for “identifying … special educational needs”, in paragraph 4(a), and for,
“securing the services, provision and equipment required by children”,
with SEN, in paragraph 4(c).
Relevant early years education is defined as that childcare which is provided to meet the duties under Section 7 of the Childcare Act 2006. Noble Lords may be reassured that this would include all local authority-funded early education for two, three or four year-olds, whatever the status of the provider. It is not limited to maintained nurseries and 96% of three and four year-olds access such early education through local authority funding, so I hope the noble Lord, Lord Ramsbotham, is reassured that non-maintained early years providers are already included. We share his concern that children are identified as early as possible. This is particularly important in areas of disadvantage, where the current two year-old offer of 15 hours’ free childcare per week is targeted.
Amendment 128 would require the local authority to use its best endeavours to identify children with SEN in early years provision, and then to secure the relevant services for them. In relation to the concerns of my noble friend Lady Perry, I know from the Department of Health that this issue has been picked up there. I assure her that there is cross-government working in this regard. We recognise the importance of health service involvement in identifying very young children who may have SEN as soon as possible. That is why Clause 24, which my noble friend may want to look at, provides for health bodies to tell local authorities about young children under compulsory school age who may have SEN. It is also why we are training an additional 4,200 health visitors by 2015 to help improve early identification. I hope that my noble friend finds that reassuring.
The Government want to reassure noble Lords that local authorities must ensure that all providers that they fund in the maintained, private, voluntary and independent sectors effectively meet the needs of children with SEN and disabilities. Local authorities should remove barriers in access to early education and work with parents to give each child support to fulfil its potential. All early years providers, regardless of how they are funded, must follow the welfare requirements set out in the EYFS framework to have and to implement a policy and procedures for children with SEN and disabilities. This should include how the needs of these children will be met and how reasonable adjustments will be made. Providers are also required to assess children regularly and to keep parents informed. They must consider whether a child has a special educational need or disability which requires specialist support. They should link with families and help them to access relevant services from other agencies as appropriate. These requirements are reflected in the draft SEN code of practice, which also gives practical guidance to early years providers on responding to special educational needs. I hope that the noble Lord, Lord Ramsbotham, will look carefully at that.
Amendment 238, again tabled by the noble Lord, seeks to place requirements on childminder agencies, including a requirement to appoint a SENCO with the prescribed qualifications, and a regulation-making power to set out requirements on how childminders registered with an agency should support children with SEN. I heard the reason he gave for taking that route, and I hope that to some extent what I have already said has reassured him that there is not quite the gap he is seeking to plug here. I also note what my noble friend Lord Storey said about this. The provision to create childminder agencies in Part 4 is an enabling one. We do not think it would be helpful to try to tie these providers into agencies. I am sure we will hear arguments to the contrary when we get to Part 4.
Returning to the key issue of early years childminders, we agree that childminders need also to look out for children in their care. Clearly, they need to be subject to the same duties and expectations whether they are registered with an agency or independently registered with Ofsted. The Government’s intention is that the agency-registered childminders should follow the same guidance on SEN as other types of early years providers, as part of that jigsaw of involvement with young children.
Page 70 of the draft code of practice, which I have just referred to, sets out guidance on the role of the SENCO in early years. It makes clear that the SENCO role may be shared between childminders in the network and suggests a similar approach be applied to agencies. For most early years settings, the SENCO is not required to have a particular qualification. Currently, and in the draft code, only SENCOs in schools and maintained nurseries must hold specific qualifications, including qualified teacher status. We feel that it would not be appropriate to impose additional burdens on childminder agencies over and above those in place for other early years settings. The framework provided by the early years foundation stage and the SEN code of practice makes this unnecessary.
Amendment 75, tabled by the noble Baroness, Lady Jones, seeks to require local authorities to appoint sufficient area SENCOs to support early years providers, drawing attention to an important role. As my noble friend the Minister mentioned in a debate last week, page 70 of the draft SEN code of practice states that,
“local authorities should ensure that there is sufficient expertise and experience amongst local early years providers to support children with SEN”.
It goes on to outline the role of area SENCOs in the early years. By including the role in statutory guidance for the first time, we are recognising its importance and creating a clear expectation about the support that local authorities should provide for children in early education.
Turning to Amendment 79, we fully endorse the importance of early identification of SEN, which this amendment seeks to secure. One of the main aims of the reforms we are debating is to seek to ensure that children and young people have their needs identified earlier—whether through district nurses, as my noble friend Lady Perry indicated, or through others involved with young children—so that the right support is put in place quickly.
The education providers listed in Clause 29(2) have a duty under Clause 62 to use their,
“best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made”.
Actively identifying special educational needs is an integral part of this duty. The draft SEN code of practice makes this absolutely clear. Chapter 6 of the code requires schools to assess pupils on entry, make regular assessments of pupils progress and ensure that teachers are equipped to spot potential special educational needs quickly.
I have perhaps been too comprehensive. However, I hope that I have been sufficiently comprehensive to address the questions and needs of all those who are rightly concerned about this area. I hope that my response reassures noble Lords that effective duties are in place because we agree with what noble Lords say they are seeking to achieve. We will continue to work with the Communication Trust and other expert organisations to ensure that the SEN code of practice provides effective guidance on all these issues. I therefore hope that the noble Baroness will be happy to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank all noble Lords who have spoken in this debate. I think that we all share the common ambition to improve the scope and quality of early years provision and to make sure that special educational needs are identified at the earliest possible time, as we said at the outset. I think that there is common cause there.
In several of the contributions it was asked who should be responsible for some of that identification. We feel that early years area SENCOs in the model that we have proposed could be the people to take on that responsibility, although I understand that everybody else whom noble Lords have mentioned could also play a role in that. That model has already been developed by local authorities as a way of taking on some of that responsibility, and it is important that the people in those posts are properly trained and supported. I was slightly disappointed by what the Minister said about not requiring them to be trained and qualified, because it seems to me that we have already identified a skills lack among some of these people. This is an opportunity to address that lack, and it will be a shame if we do not embrace it when we have the opportunity to do so.
Baroness Northover
I am sorry to interrupt the noble Baroness. Of course, these proposals build on what the previous Government decided to do. As I said in my response, that was the arrangement that existed before. However, we have taken it a step further, in that it is in the draft statutory guidance, and I hope that that will be welcomed by noble Lords.
Baroness Jones of Whitchurch
I was picking up the particular point about qualifications. As the Minister has already identified, I have not yet read page 70 and I was trying to do a bit of speed-reading. I obviously need to reflect on that in a little more detail before we come back to debate this further in the House and, when I have done some more reading, I shall write to the noble Baroness if I have any more questions. In the mean time, I beg leave to withdraw the amendment.
Lord Patel
“Suitable education for children and young people
(1) Section 19 of the Education Act 1996 (exceptional provision of education in pupil referral units or elsewhere) is amended as follows.
(2) After subsection (5) insert—
“(5A) Suitable education for children and young people means—
(a) good quality education regardless of personal circumstance or education setting,(b) appropriate and tailored support to overcome barriers and meet a child or young person’s individual needs,(c) education suitable to the child or young person’s age, ability and to any social and emotional or special educational needs he or she may have, and(d) enabling children and young people to maintain academic progression and attainment, and allow them to thrive and prosper in the education system.”(3) Omit subsection (6).”
Lord Patel (CB)
My Lords, this amendment would add a new clause after Clause 23. It refers to Section 19 of the Education Act 1996 and seeks to improve it. Therefore, I hope that the Minister will find this a helpful amendment, as it seeks to do what he has been trying to do with his own amendments.
To summarise, Clause 19(6) of the Education Act 1996 would be repealed and after subsection (5) would be inserted a new subsection (5A), which refers to:
“Suitable education for children and young people”,
the definition of which would be inserted according to the wording of my amendment. The amendment would ensure that legislation and subsequent statutory guidance and regulations reflected the Government’s policy intention that all children, regardless of circumstance or setting, should receive a quality education as per the statutory guidance published in January 2013. I commend the Government for the publication of their guidance, and I shall come back to that again.
The reasoning behind my amendment is that Section 19(6) of the Education Act 1996 currently reads:
“In this section ‘suitable education’, in relation to a child or young person, means efficient education suitable to his age”—
it is always “his”, although it means “his or her”—
“ability … and to any special educational needs he may have”.
I consider that a more thorough definition of “suitable education” will help to achieve the Government’s aspiration for young children and persons learning in alternative provision, and it is that inclusion of alternative provision that I am seeking in the definition in the Education Act.
Alternative provision is defined as education arranged by local authorities for pupils who, because of exclusion, illness or other reasons, would not otherwise receive suitable education. This includes the education that a child or young person may receive in a hospital school, in a medical pupil referral unit or through home tuition.
The Committee may well be aware, since other noble Lords have referred to it, that CLIC Sargent, the UK’s leading cancer charity for children and young people, has found in a study that young people—particularly those with cancer, although it also applies to children with other diseases—who are receiving education in a hospital school or medical PRU setting while undergoing treatment do not receive a quality of education equal to those in mainstream education. Its research, published in the document No Child with Cancer Left Out, found that 70% of parents said that their child had very little education outside their normal school. In fact, to quote one parent of a child with cancer:
“We waited nearly a year for a home teacher who was brilliant, but it really should not have taken so long. Five hours a week home teaching is too little for a child in Year 6”.
Teenagers have also commented that the education they get is not appropriate for them at their age, or to help them get through exams. There is also a lack of funding from local authorities for home education.
I return to the Government’s intention, which I thoroughly support, and the statutory guidance for local authorities that they published earlier in the year. It clearly states that alternative provision and the framework surrounding it should offer good quality education on a par with that of mainstream schooling, along with the support that pupils need to overcome barriers to attainment. I agree that this support should meet a pupil’s individual needs, including social and emotional needs, and enable them to thrive and prosper in the education system. However, it is a statement of intention and good will, not a statement of a directive which the authorities may be obliged to follow. I hope that the Minister will see that strengthening the Education Act and defining suitable education more clearly may help.
I welcome the Government’s belief that,
“pupils with cancer deserve as good an education as any other pupil and poor health should never mean poor education”.—[Official Report, Commons, 10/1/13; col. 576.]
A key part of this will be to ensure that children and young people who receive alternative education receive a quality education, and that all education provision is responsive to the diverse range of needs of children with cancer and other serious conditions. I hope that the Minister will see that this amendment of mine helps his intention, so that he might either accept it or bring his own amendment at a later stage to strengthen the Education Act. I beg to move.
The Countess of Mar
My Lords, I shall speak to my amendments; there is rather a long list of them. They are Amendments 154, 160, 178, 185, 187, 189, 193, 197, 205C and 218. It seems an awfully long list but they are very simple amendments, which all say more or less the same thing. I declare my interest as chairman of Forward-ME, as patron of a number of ME charities and as vice-chair of the All-Party Group on ME.
I first became interested in virtual education in 2004, when the Young ME Sufferers Trust, or Tymes Trust, developed an alliance with Nisai Virtual Academy Ltd, also known as Nisai Learning. Together, they developed an educational programme for young people who were too ill to attend school or who could attend only intermittently and who, as a result, were missing out on large chunks of their education. At a function in the House last year the noble Lord, Lord Clement-Jones, founder-patron of the Tymes Trust, said:
“No wonder students with ME find concentration so difficult. When a student makes an effort, oxygen levels in the brain can fall instead of rising to cope with … demand. Obviously, it can be next to impossible to study effectively after struggling into school”.
He finished by saying that,
“students can be thought lazy, or just awkward when they are doing their best. Often staff do not realise why the student either can’t get to school at all or can’t concentrate on their work when they get there”.
Tymes Trust research has shown that,
“for young people with ME, the most effective form of education is home based, with interactive virtual education producing grades equivalent to, or higher than, other healthy students at school. The protocol that has been developed enables very sick students to achieve, when otherwise they are typically condemned to a recurring pattern of school attendance and subsequent relapse with little to show for it. They often feel that they are failures, when in reality it is the education system that has failed them”.
It is not just students with ME who benefit from virtual education, although ME is the biggest cause of long-term sick absence from school. There are young people with other medical illnesses who are not able to attend school, as my noble friend just said. Those with learning difficulties and emotional and behavioural disorders, those with disaffection with school or school-refusers, those who are excluded and sufferers from bullying, whom the noble Baroness, Lady Brinton, has so clearly defined, can all benefit from virtual education. Despite their myriad problems, those students, who would normally struggle to achieve any qualifications, find that a virtual environment is one in which they can flourish. This year, 91% of the students of Nisai Learning achieved GCSE and A-level qualifications, and 30.6% achieved A* to C grades. While this is below the national average, many of these students would have had no GCSE or A-levels under their belts.
The Bill focuses on provision for children with special educational needs who are in the main stream. That excludes some 100,000 children who do not have access to mainstream education, for some of the reasons that I have given. According to a BIS research paper published in January this year on the motivations and barriers to learning for NEETs—those not in employment, education or training—more than nine in 10 young people with experience of being a NEET are motivated to learn, while seven in 10 of the same young people looking for learning opportunities felt that there were barriers associated with access to education. It is intolerable that young people such as these should be left behind when we know that, with the right support at the right time, they can succeed.
Education outside the mainstream is often supplied by individual organisations that have created imaginative ways to help those who are excluded. However, the money assigned to a student while inside the mainstream system does not follow them once they are no longer on the school roll. That means that it is impossible for students to have access to alternative provision that would help them. The Bill gives us the opportunity to rectify that state.
Online and blended education mixes visual with auditory and verbal kinaesthetic modes of teaching, and ensures that children can focus on learning without the complications of external influences with which they may struggle. They are given a structure that supports them educationally and emotionally and which enables them to become economically independent. Online learning integrates a variety of learning styles, using teachers who have a comprehensive understanding of work processes and the special needs of students who have physical or emotional problems.
Students do not wake up one morning and decide that they do not want to learn any more; there are numerous factors that contribute to their lack of engagement. For children with ME with special educational needs, virtual education protects health and promotes recovery; results in better exam grades than a child with ME can otherwise achieve; costs less than home tuition; and can be accessed at any time of the day or night. The child remains on the school roll, and the school league table can include the child’s success. Very importantly, through virtual contact with other children in a similar position, children can make many new friends whom they are able to meet when they are well enough. As a sideline, I quote a note from a former head teacher:
“the purpose of education is to educate to the best standard possible; an attendance register is not a measure of achievement or success”.
Baroness Brinton
My Lords, I support Amendment 81 tabled by the noble Lord, Lord Patel. I believe that it chimes well with my Amendment 74 that we discussed earlier, as well as some interventions in the group dealing with health conditions last week.
I want to pick up the case study that I quoted last week of a young lady who had cancer who talked to me quite specifically about the problems that she had, during her year off school, with the three types of education that she was offered and the lack of communication between them. As she became ill, she had one teacher in her school who was prepared to support her, her maths teacher. That was extremely helpful, but unfortunately other teachers did not seem to have time to give her work to do before she went into hospital. She was provided with some home tuition by the local authority, but it was not co-ordinated with the school and the local authority had virtually no level of understanding of her assessment in school. Then, when she was in hospital for an extended stay, the hospital school—again—had no links back to her school to get any idea about where she was. Given that this young lady was in year 8 at the time, it was very important, as she was coming up to choosing her options for GCSE, that the work was appropriate for how much she could manage but also at an appropriate level for when she could manage it.
The amendments from the noble Lord, Lord Patel, and the noble Countess, Lady Mar, on blended learning and virtual education go some way to addressing the holes that these children often fall through. Alternative provision, simply by its nature, has to be bespoke for these children, and often they work in very small groups. There has to be better communication between the alternative providers, these children’s schools and local authorities. Small teaching groups require proper funding for children that recognises their special problems and incentivises their schools to release the funding as appropriate, linked with the school communicating with the alternative provider and, hopefully, levels being reported back to the school when the child re-enters. That is why I particularly support the idea of online distance learning combined with face-to-face support, which can provide outstanding methods of blended learning engagement for young people, but particularly those who are out of school.
I saw this a few years ago with some apprentice chefs in very rural areas of the fens in Cambridgeshire and Norfolk. They were having their lessons with the college online in the hotels that they were working with, and it was the combination of their apprentice tutors within the firms, the chef tutors in their college, online learning and some face-to-face support that really made all the difference, because those young people could not travel to the necessary location.
If further education and higher education are moving much more to this type of blended education using this range of techniques, surely it is time that our school system found a mechanism to ring-fence this type of learning for children who have needs that are best met through blended learning. It might then become a pathfinder for the future for mainstream schools.
Baroness Morris of Yardley
I, too, support the two amendments in the names of the noble Lord, Lord Patel, and the noble Countess, Lady Mar, and I do so for one reason in particular. There is a real danger in the whole Bill that, by necessity—and I have no problem with this; it is what the Bill is about—we will be talking about structures, obligations and demands on people, and about trying to get the system right. We have always failed to do that in the past through successive pieces of legislation. The system does not quite work. There is a danger of forgetting that what will ultimately make a difference is the teaching once the system does work.
In terms of mainstream schools, I have always been a big advocate of talking more about pedagogy than about structures, because that is what will make the difference. We never quite get to that with special needs children because we always revisit the structures, the obligations and the legal framework. What I like about both the amendments is that they are about what happens when the structure works in terms of the quality of teaching and the learning experiences of the children who would access their education through these provisions.
I do not like the phrase “blended learning”. I am not familiar with it and it took me a long time to work out what it was. I had a few ideas, none of which was anywhere near the truth. Therefore, perhaps the wording is not quite right but the kernel and the elements of it are right—it is about what happens in the classroom once the system is working. It would be a shame to let this bit of the legislation go by without having a good debate on that to ensure that we give really clear signals that what we care about for children with special needs is not just that the structure works for them but that the quality of the teaching is appropriate and meets their needs.
On blended learning and online learning, we have not yet gained what we could regarding advances in technology and education. We have done so in higher education and further education but in schools we are lagging behind. For a long time, I have thought that the group that can most benefit from this are children with special educational needs, because of the technology and because of the need that there sometimes is to learn in more than one place.
These are two really good amendments. They put us into a different place when we come to talk about the education of special educational needs children. I hope that the Minister will reflect on them and perhaps discuss how the Government might take them forward.
The Countess of Mar
Perhaps I can point the noble Baroness to my Amendment 218, which has a definition of blended learning.
Baroness Howe of Idlicote
My Lords, I support the amendments. When I first received the briefing about blended learning, I was slightly puzzled by it all. However, the deeper you get into it, the more appropriate it seems for many of the circumstances that we are facing, particularly with SEN children. I very much hope that the Minister will be able to find a way of supporting it, or of allowing it to be used in a number of different ways with the children for whom it is appropriate. I fear that, all too often, I am less than enthusiastic about the advantages of the internet and all the things that enable us to access all sorts of things online. However, if this can be a real plus for children with needs, I hope very much that it will be given a useful role and will be supported by the Government.
Lord Lucas (Con)
My Lords, I agree with every word that the noble Countess, Lady Mar, has said. There are beginning to be some quality suppliers in online provision. It is probably too early to say, “Let us make this generally available and experiment with children who do not actually need it”, but, goodness, we should start to use these provisions for children who are not getting an education because they cannot access what we currently provide. It is good enough to be sure that we will be doing better by these children. We can perhaps move on to children who are out of school for other reasons, who are very poorly provided for at the moment, and see where we go from there, but let us do what good we know we can now, rather than hanging on until we feel able to do good for everyone.
Lord Nash
My Lords, noble Lords who have spoken on this issue have eloquently highlighted the significant barriers that stand between some children and young people and the good education they deserve. The aim of the Bill is to help to overcome these barriers. I hope that I can reassure noble Lords that these provisions, in conjunction with existing legislation and guidance, are sufficient to achieve this aim.
The Government’s view is that the majority of pupils are best served by attending a mainstream educational institution. For those with particularly acute needs, a special educational institution may be appropriate. These institutions provide face-to-face teaching and are subject to rigorous accountability arrangements. They also support social, emotional and physical development in a way that more isolated approaches to learning struggle to replicate. Wherever possible, the support provided to children and young people, including through education, health and care plans, should enable them to access the benefits of mainstream or special education. There will be individuals for whom, despite additional support, a mainstream or special institution would be inappropriate.
As has been discussed, local authorities have a duty to make arrangements for pupils of compulsory school age who may not, for any period, receive suitable education. In the context of this duty, suitable education is defined as,
“efficient education suitable to [a child’s] age, ability and aptitude and to any special educational needs he may have”.
New statutory guidance was issued in January on the use of alternative provision and on the education of children unable to attend school because of health needs. Local authorities must have regard to this statutory guidance and the clear expectations it sets out. If a local authority does not follow the guidance, the issue can be taken through the local authority complaints process and, if not resolved, referred to the department. I believe this addresses the concerns raised by the noble Lord, Lord Patel, in Amendment 81 about ensuring the quality of alternative provision.
The guidance sets a clear expectation that alternative provision should deliver a high-quality education that leads to good academic attainment on a par with mainstream schooling. It also reinforces the importance of flexible provision that meets pupils’ wider needs.
In drafting this guidance we have listened carefully to organisations that represent children and young people, such as the cancer charity CLIC Sargent. In response to these views, we recently amended the guidance on children with health needs to give greater emphasis to supporting children’s social and emotional needs. The current arrangements provide an appropriate balance between legal duties and statutory guidance. This ensures that all children unable to attend school are covered by the duty while retaining the flexibility to clarify how the duty should be discharged.
The noble Countess, Lady Mar, in a number of amendments has raised a number of specific points about the use of alternative provision, including in relation to EHC plans and personal budgets. I am pleased to reassure her that the Bill does not prevent a local authority naming an alternative provider in an EHC plan. Where alternative provision is named in a plan as additional specialist provision, it can also be covered by a personal budget, including a direct payment. The Bill, therefore, gives local authorities the flexibility to use alternative provision where it is in the best interests of the child or young person.
However, alternative provision is intended as an exceptional arrangement, and decisions about its use need to be considered carefully. For the majority of children and young people, the aim of alternative provision should be to support their reintegration back into mainstream education. Local authorities would need to consider any requests from a parent or young person to include alternative provision within a plan. The current arrangements allow for local authorities to ensure that the arrangements constitute a “suitable education”, in line with their legal duty. In doing so, they mitigate the risk that alternative provision is used inappropriately or for longer than necessary.
The Countess of Mar
My Lords, I meant to do this in my initial speech: I thank the Minister and his department for the statutory guidance. Both the ME charities with which I work, which deal with young people, have been extremely grateful for it and are making good use of it. If we could get this embedded in the Bill or indeed into the system, that would be extremely helpful. I am grateful for his reassurances. I will read what he has said and think about it.
Lord Patel
My Lords, I thank the Minister for his comments, particularly the last ones that he made about working with the charitable organisations that work with children with cancers and other health conditions. My concern was not that he was not personally sincere about making sure that all these children got a good education, nor that the guidance already issued and the amendments that the Government have brought in do not go a long way towards making sure of that. My concern was that, while the intention is to ensure that all children get their education in mainstream education, which I agree is the best for them, there are times when these children cannot be in mainstream education because of their conditions. It is the gap that occurs—the provision that is not there to continue their education—that makes them fall behind when they re-enter mainstream education. It was in filling that gap that I was hoping to see whether I could be of some help through the amendments. However, I am reassured by what the Minister has said, and I hope that he and his team can work with those who are concerned to ensure that the guidance produces the required emphasis to make sure that this education for children continues in alternative provision. I beg leave to withdraw the amendment.
“( ) In exercising its functions under this Part, a local authority must—
(a) facilitate co-operation between local authorities, schools, other educational providers and providers of health care and social care;(b) ensure that schools, other educational providers and providers of health care and social care have sufficient resources including financial resources, to meet and carry out their responsibilities under this Part;(c) develop strategies to ensure the identification and support of persons, who may be described as lead professionals or key workers who may come from local authorities, schools, other educational providers and providers of health care and social care, and who shall take a lead role in the integration of services.”
Baroness Sharp of Guildford (LD)
My Lords, Clause 25 is about promoting integration. My amendment is about effecting that integration and,
“co-operation between local authorities, schools, other educational providers and providers of health care and social care”,
but also ensuring that there are sufficient resources for that integration to take place. It is a probing amendment intended to explore issues relating to multiagency working and the local offer. Integration of services, the alignment of assessment processes and co-operation among groups of professionals works only if those same professionals, especially at the early stages of such integration, have time to get together to talk things through.
The pathfinders, which were evaluated in the June document that we have all seen, suggested that attendance by the professionals involved—the teachers, healthcare and social work professionals—was highly variable, many of them pleading that their loads were so great that they had no time to attend the meetings required. However, the reforms will not work unless a realistic approach is taken to recognise those time constraints on the professionals involved, deliberately programming in time for them to build the relationships required. Of course, that means more resources, especially in the early phases of the development of the programme—not an easy prescription at a time when budget cuts are impinging so strongly on local authorities.
The pathfinder evidence also highlights the need to develop a targeted learning and development programme for school lead professionals and/or other key workers. If the unspoken assumption is that all the new expectations will be possible because they can be discharged by school special educational needs co-ordinators, Members of Parliament need to visit SENCOs in their constituencies to ask them about their already unrealistic workloads. It is likely that far fewer teachers will opt to take on the additional responsibilities of being SENCOs if the new reforms are implemented without sufficient resources being allocated.
The question of which agency should take on the role of key workers and lead professionals needs much further explanation. The existing DfE advice about when schools should or should not be the lead professionals is very inadequate. It does not guide schools in how to decide whether they are the most appropriate agency to take on the lead. Teachers report that schools are often inappropriately named as being lead professionals because other agencies cite budget cuts as precluding them from taking the lead. Those nuances currently seem to be ignored in the Bill but could cause a considerable amount of trouble. I beg to move.
Baroness Jones of Whitchurch
My Lords, we have two amendments in this group, Amendments 88 and 90B, so I shall speak to them. They would widen the scope of joint commissioning to include all aspects of support that children and young people might need by extending the definition of EHC provision and ensuring that children without EHC plans would also be included in the arrangements. I should add at this point that we support the amendments tabled by the noble Baroness, Lady Sharp, and the noble Lord, Lord Ramsbotham, which would in their own way go further to strengthen the joint commissioning arrangements. I very much agree with the points made by the noble Baroness, Lady Sharp, about resources.
However, before I go on to the substance of our amendments, I should like to ask the Minister about the wording of the entire clause. I should be grateful if she could put on record exactly what the clause means and what it would require local authorities and health bodies to do. I say this because the clause does not seem to be about requiring local authorities to secure services through commissioning; rather, it appears to require them to set up the apparatus through which decisions about commissioning will be taken. Obviously, that is a very great difference. It says that a local authority and partner bodies must make arrangements; it does not say that they must jointly secure provision. It does not even say that they must secure the provision that they have agreed is needed. This is especially important with regard to health, where other legislation can be used to absolve them from improving legislation on the grounds of, for example, cost. So far as I can see, there is no mechanism for anyone to challenge such decisions.
Therefore, the danger is that Clause 26 as it stands simply builds a procedural structure that really does not have any teeth. Furthermore, I cannot see any leverage by which the partner bodies will be accountable for what they decide to commission. We have not tabled any amendments on these points as it would have meant a substantial rewriting of the whole clause, but I would be very grateful if the Minister could address the point about what is intended by the wording and how partner bodies will be held accountable.
I turn to our Amendments 88 and 90B. Our concern is that the needs of families, including those where the child does not have an EHC plan, are met as completely as possible. It is important that the kind of provision subject to joint commissioning is not just the kind that goes directly to the child or young person relating to either special educational provision, healthcare provision or social care provision, but includes support for families to enable them better to support the child and their siblings. Supporting a child with SEN or disabilities can be incredibly stressful for families, and it is important that we assist and support parents and families with the tools to understand and support their child’s special educational needs or disability.
In the Commons, the Minister said that there was nothing precluding joint commissioning arrangements from covering other services for children and young people with or without SEN, and that support for families needing social care services was provided for under Section 17 of the Children Act 2004. He added that the duty in Clause 26 relates to joint commissioning arrangements for children and young people with SEN, and where the services are needed to support the child’s family as part of that package, that might be included in the arrangements.
Baroness Jones of Whitchurch
To recap, I was talking about the support that was given to the families of children with special educational needs. I have referred to the fact that the Minister in the Commons referred people to the Children Act 2004. In summary, our point is that if we are going to have a Bill like this that aims to be transformative, it really should put all the responsibilities in one place. Just saying, “Well, this is already covered in bits of other Bills and guidance here and there”, is not the point at issue. If we think that support for families is important, and I know from other meetings with the Minister that he believes that, they should all be covered in the Bill. That is why we tabled these amendments, because we would like to see all these provisions brought together so that it is clear in the Bill exactly what people’s rights are, including the extension of support to the families of children with special educational needs. I beg to move.
Baroness Howe of Idlicote
My Lords, I shall speak to my Amendment 100. Its purpose is to provide encouragement to local authorities to work together to commission services for children and young people with low-incidence needs. For very low-incidence conditions, such as sensory impairment, it may not be appropriate to expect that specialist provision is made available in every local authority area. For that reason, there should be regional support services co-funded by a number of local authorities across the geographical area. The department’s Green Paper on special educational needs and disability stated:
“We know that greater collaboration between local areas can also help local professionals to plan, commission and deliver the best services for children and young people with SEN or who are disabled and their families, as well as helping to secure best value for money … we will explore how we can encourage greater collaboration between local areas”.
The Bill creates new duties on health and education services to work together and collaborate. However, it says little about the importance of joint working across local authority boundaries, despite the obvious potential benefits to services to children with special educational needs. Children with sensory impairments have a low-incidence special educational need and disability, or LISEND. The National Sensory Impairment Partnership, NatSIP, has defined a LISEND as,
“A need which has the potential to have an adverse impact on learning and development unless additional measures are taken to support the child/young person … The prevalence rate is so low that a mainstream setting is unlikely to have sufficient knowledge and experience to meet these requirements. Settings will need to obtain specialist support and advice on how to ensure equitable access and progression (against national standards) … The prevalence rate is so low that any formula for allocating specialist resources for additional needs, which is based on proxy indicators of need, will not reflect the true distribution of children and young people identified as having low incidence SEND”.
Children with a LISEND are a diverse group in terms of their needs and the nature of the support they require. There is often a lack of expertise in those needs in local authorities and/or insufficient capacity. Indeed, although local authorities are required by Section 7 of the 2006 Department of Health deafblind guidance to identify and provide specialist assessments for deafblind children, the identification rate is only three MSI children per 100,000, but Sense figures suggest that the rate should be 31 per 100,000. These figures indicate that local authorities do not have sufficiently qualified assessors, and that deafblind children and young people are receiving generic assessments that fail to address their specific needs. Deafblind children are also not receiving adequate specialist support in many areas. The Consortium for Research into Deaf Education—CRIDE—found that 18% of services employed two or fewer teachers of the deaf, and 8% employed one or fewer teachers of the deaf. Fifteen per cent of services reported that each visiting teacher of the deaf was supporting, on average, 80 or more deaf children, and 7% had a ratio in excess of one to a hundred.
Lord Ramsbotham
My Lords, I shall speak to my Amendments, 89 and 92 to 97, and add my support to Amendment 100, mainly because it becomes very relevant when we come to Clause 70, dealing with people in detention.
My other amendments are to do with something I find odd about Clause 26. Although on the face of it local authorities and partner health bodies are required to make, have regard to and keep under review joint commissioning arrangements, there is no obligation on them to operate any of those arrangements, let alone to reach agreement. That seems very peculiar. Even when they operate the arrangements and reach agreement, the resulting provision is limited to what they agree to be reasonably required.
I go back to my amendment to Clause 21(5), because, as I mentioned then, health bodies may well argue that their position is constrained by what they consider necessary. Given how many such bodies apparently give very low priority to speech, language and communication needs and the provision of speech and language therapists, that might mean that little or no speech language therapy would be provided for children or young people other than those who are on EHC plans. This brings us back to the problem of the vast majority of children with these needs who are not on those plans.
Clause 26 does not allow the assumption that children without plans will get what they require; nor does it mention any requirement to publicise what arrangements and agreements are available for parents or the people affected; and it does nothing to ensure that there is consultation on the joint commissioning arrangements. My amendments are designed to strengthen Clause 26 by making its tone “must” rather than “discuss”.
Baroness Northover
My Lords, this group of amendments relates to Clauses 25 and 26, which deal with promoting integration and joint commissioning. These provisions are at the centre of our reforms and I am grateful to noble Lords for their careful consideration of these issues. Children and young people with special educational needs need integrated services. Too often they have to tell their story over and again, and too often they or their parents struggle to navigate a system that makes no sense either to them or to the professionals who are supposed to be helping them. In this mini-debate we have had an echo of the discussions we had on both the Health Bill and the Care Bill, where noble Lords were very keen, as were the Government, to take forward better integration and working together across these areas. Noble Lords who have just come from the Care Bill will be extremely well aware of how the Government have sought to take this forward, addressing how people have so often fallen between the cracks. This, too, is part of the attempt to ensure that those with special educational needs are better supported and that the authorities responsible for them work more closely together.
These clauses seek to tackle those issues head on. The integration duty sits alongside duties for a local authority and its local partners to co-operate with each other. I remember extremely clearly, as other noble Lords no doubt will, how integration, as debated in the Health Bill, had to be part of the new arrangements for the health service. This echoes much of that. It links closely to the joint commissioning clause that provides the statutory framework to enable partners to work together effectively to deliver a better experience for the child or young person and their families, and support improved outcomes. Joint commissioning sets out the framework for key elements, such as the local offer, education, health and care plan assessments, and personal budgets. It seeks to improve both the working relationships between local authorities and health bodies, and the provision to children and young people with special educational needs. It requires the local authority and health bodies to establish clear procedures for making decisions and, in particular, to agree what support is needed locally and which agency will deliver it. Crucially, they must agree how they will resolve disputes between partners, as well as how they will deal collectively with complaints concerning education, health and care provision.
The new draft SEN code of practice’s chapter on joint commissioning has developed a great deal, and I hope it may help to reassure noble Lords to know that it puts great store on the importance of making decisions in joint commissioning arrangements—an issue to which the noble Lord, Lord Ramsbotham, has just referred. It specifies that the arrangements should be robust enough to ensure that all partners are clear about who is responsible for what, who the decision-makers are across education, health and care and how partners will hold each other to account where there is a dispute. It recognises the importance of getting elected members and chief executives across education, health and social care on board, and recommends that the arrangements for children and young people with SEN should be specifically accountable to councillors and senior commissioners. It recognises that local accountability can take the form of a programme board, acting as a bridge between the local authority’s education and social care leadership and health partners.
It also reflects that health bodies must work with the local authority in commissioning integrated, personalised services and designing the local offer, including ensuring that relevant contracts with providers reflect the needs of the local population. Local authorities, clinical commissioning groups and NHS England should develop effective ways of harnessing the views of their local communities so that commissioning decisions on services for those with SEN are shaped by people’s experiences and aspirations. The dovetailing of the SEN reform clauses with the NHS reforms is central. The NHS mandate requires clinical commissioning groups to consider the needs of children and young people with SEN and disabilities, so we see immediately the crossover. The Health and Social Care Act reforms require local authorities and clinical commissioning groups to participate in the health and well-being board and to produce a joint strategic needs assessment and a joint health and well-being strategy that sets out how local needs will be met. So the needs are to be identified, and plans have to be put in place as to how they are met.
The health and well-being board has a duty—and I well remember it—to encourage integrated working. For the purpose of advancing the health and well-being of the people in its area, it must encourage people who arrange for the provision of health or social care services in the area to work in an integrated manner. As I said, the Care Bill has been taking that further forward and making it a reality. I hope that that context helps when looking at how we are trying to tackle the needs of these particularly vulnerable children.
I heard what my noble friend Lady Sharp said about the probing nature of her amendment. As ever, she probes extremely effectively. She is seeking to explore how these new arrangements will work in practice, and obviously she is absolutely right to do that.
My noble friend wondered whether SENCOs would have too much on their plate. Since 2009, the Government have funded more than 10,000 new SENCOs to study for the National Award for SEN Coordination. We will support a further 800 places in 2013-14 and this will help them in their important role in linking with other agencies, such as health and social care. I hope that that helps to take this matter forward.
Many of the amendments in this group reflect an apparent desire to puts lots of detail in the Bill. This is an argument with which everyone here will be very familiar—whether it is necessary to specify certain things in the Bill in order to make sure that certain things happen. I am sure that we are all seeking to go in the same direction, which is to achieve what the Bill sets out to do. From noble Lords’ probing as to whether it is going to be delivered by the Bill as it is, I certainly sense that there is agreement on that.
However, noble Lords will also be familiar with the fact that if you specify in great detail in a Bill, you can inadvertently exclude things that you have not included. That is why there is always discussion about what happens in guidance and secondary legislation and so on, and that is why I am so pleased that we have the SEN guidance. It is comprehensive and, I hope, addresses a number of issues that noble Lords are concerned about. From that guidance, your Lordships can see how the Bill translates into what we intend in practice.
As noble Lords will appreciate, we feel that there is a danger that if too much is specified in the Bill, that will then hinder the kind of flexibility that may also be required at a local level. Noble Lords who heard the pathfinder organisations, which came to address us the other day, probably share my feeling that the often very imaginative and creative ways in which they were going about their work and the way they were working with other organisations in their local areas to address the needs of the children were very impressive. One would not wish to do anything that stifled that. One would wish to support them in taking that forward. The aims of what one is seeking to achieve and the details being spelt out in the guidance—
Baroness Howarth of Breckland
I have not spoken in this debate but I should like to ask the noble Baroness a question. The thing that concerns me greatly as a practitioner is the variableness of how co-operation takes place across the country. In some places, certainly where there are special projects such as pathfinders, it works well, but in my experience some authorities do not make timely decisions, which can mean that placements are not agreed, and again I refer to my experience in adult colleges for severely disabled young people. If a local authority cannot agree between its own social services provision and its education provision, how does it then hope to get co-ordination across the piece?
I probe only because of my anxiety that we get this right. I agree that it is not always good to have too much detail in a Bill, but how through the guidance will we ensure consistency across the country so that decisions are made appropriately and young people get properly placed, not left in back rooms in homes with distraught parents when a college place could make the difference?
Baroness Northover
I hear what the noble Baroness says, and she speaks from a great deal of experience. That is the kind of challenge that has led to us trying to move forward across the board on SEN to ensure that what is provided for children is more uniform and more joined up. If need be, I will write with more detail in response to her but, as I said, what the pathfinders were saying was encouraging. They said that they would link up with those who came after to try to spread best practice. As noble Lords have said, it is often what happens in practice on the ground that may be wanting.
That links up with an issue raised by the noble Baroness, Lady Jones, about how families might hold their local authority and CCGs to account for having arrangements for joint commissioning in place. Ultimately, families could take out a judicial review, but we believe that there are other, more effective ways to hold local bodies to account through local complaints procedures and through NHS England, which will review how CCGs are fulfilling their duties under the NHS mandate. I remind noble Lords that the NHS mandate refers specifically to children and young people with SEN. Therefore, there are those novel routes. That is a new lever.
As the services that result from joint commissioning arrangements will be reflected in the local offer through direct involvement in developing and reviewing it, we hope that that will bring about the opportunity to improve things in the way that both noble Baronesses seek.
Returning to my script, as opposed to my thoughts, Clause 26 requires local authorities and CCGs to keep the arrangements under review, so that service provision will evolve over time and continue to meet the needs of the community that it serves. I have spoken about the pluses and minuses of putting duties in the Bill.
I also note that service providers must take responsibility themselves for how they best use their resources to provide services for children and young people with SEN. I was struck by what the pathfinders said about how often that meant finding a cost-effective way to do that. It was not necessarily the case that working together was more costly. That was interesting to hear.
The final paragraph in Amendment 86 highlights the importance of key workers, which is something that we support and have specifically included in the code of practice. Chapter 3 makes clear that the kind of support that local authorities should offer children, their parents and young people should include key work and support, such as individual casework and informal advocacy, support in attending meetings or contributing to assessment and reviews, and participating in decisions about outcomes.
There was reference to how the NHS provides services and how that might mesh. The fundamental principle of the NHS is that provision should meet reasonably required needs. We have to be careful. There is a wide understanding, certainly among noble Lords, as to why that is the case and why, for example, the previous Government set up NICE to assess treatments and to work out what was effective. An NHS that was free at point of need, universal and comprehensive had to make sure that what it was providing to the population made sense and that clinicians would agree as to what was an effective treatment and so on. All of that is built into the way the NHS has always operated. We therefore have to be careful that we do not inadvertently seek to change that fundamental principle of provision to meet the reasonably required need.
The CCG has a statutory duty to provide services to meet the reasonable needs of those for whom it is responsible. We have a good understanding of that. We may challenge it around the edges, but we do have an understanding of it. It must act consistently with the NHS mandate—
Lord Ramsbotham
My Lords, I am sorry to intervene but the point of raising my concern is that, in many areas, speech and language therapy has not traditionally been accorded the impetus that has been required by the NHS. I welcome the talk about health and well-being boards. Indeed, as I mentioned earlier in the debate, because they are the bodies that are in touch with all people from nought to 25, I hope that they will have a role and that it will evolve. Accepting the way in which the NHS operates, I hope that in future it will take account of speech and language therapy needs because of its increasing importance for our children today.
Baroness Northover
The noble Lord made a very cogent case before and my noble friend was sympathetic to what he said. It will always be the case that, at any one time, there will be debate as to what is essential, what ought to be provided and what will best help children or any member of the population, and, therefore, debate about what the NHS or any other provision ought to cover. As I said, the noble Lord made a cogent case and my noble friend responded sympathetically, so it is a matter of let us watch this space. As I have mentioned, the NHS mandate includes a specific objective that children and young people with SEN have access to the services set out in their care plans. I hope that is reassuring.
I have referred to pathfinders and the wording in the clause reflects the fact that the parties involved are expected to follow the arrangements made unless there is good reason to depart from them. Allowing that flexibility will enable partnerships to adapt to accommodate unique circumstances or changing priorities locally which the arrangements may not have anticipated.
Noble Lords may be anxious that this flexibility could mean that partners have to have only some of the arrangements in place before achieving any agreement. I hope I can reassure noble Lords that this is not the case and is certainly not the legal effect of these provisions. Clause 26(4) makes it clear that these partnerships have the clear function of securing the care that children with SEN need. Therefore they must be able to agree a clear course of action in every case. This point is backed up by the new draft SEN code of practice.
There may be other elements that I need to address. I turn to the point that the noble Baroness, Lady Jones, made about transparency. We certainly agree with her point about needing transparency for parents but we do not think that we should replicate other legislation in the Bill. I am sure she will be disappointed about that. The place to bring this together, we feel, is in the code of practice, and that is what we have sought to do. Again, that is something that comes up in legislation all the time: should we make reference to previous Acts or should we include it in the new Bill? We feel that the draft code of practice helps to bring everything together very clearly, and I hope that she will accept that.
Baroness Jones of Whitchurch
Earlier the Minister made the point that we do not want lots of detail in the Bill and I think that we all understand that you cannot spell out everything in a Bill. However, we thought our amendments on this issue were rather neat and not full of detail. Our proposals, about providing any other provision deemed necessary to meet the special educational needs of the child or young person, were intended to include the family context and so on. That was not about too much detail—obviously the detail can be spelt out in the code—but it was to provide a route in for families to feel that they were included in the Bill. I take the Minister’s point about not having too much detail but I do not think that our amendment could be found guilty of that.
Baroness Northover
I was actually thinking more of my noble friend’s amendment. My noble friend Lady Sharp is always clear and to the point, so far be it from me ever to suggest that she might add detail that was best put elsewhere.
The noble Baroness, Lady Howe, spoke about local authorities working across boundaries. I assure her that we agree that, working together, local authorities can secure more cost-effective, high quality provision for children and young people with the most complex needs. Many authorities already have such arrangements in place and we encourage it through the new draft SEN code of practice, which includes, in section 4.4, a specific section on regional collaboration. As the noble Baroness spells out, it is in local authorities’ interest to do so. The provision stipulated in education, health and care plans will reflect individual need and local authorities will have to ensure that it is provided.
The noble Baroness highlighted effectively how there may be just one or two children with particular needs in one area, and it makes a lot of sense to collaborate with those in other areas. That is why Clause 30 sets out that local offers must cover provision outside the local authority area for children and young people for whom the authority is responsible. Making this an explicit part of the local offer will mean that authorities have to take steps to make these arrangements up front, and allow parents to challenge whether the best arrangements are being made. For specific cases, Clause 31 goes further and requires other local authorities to comply with requests for co-operation, as long as doing so does not compromise their own duties. That provides a further spur for local authorities to consider in advance suitable joint arrangements for providing for children and young people with specific needs.
I hope that I have covered most of the points raised by noble Lords. If I have not, then obviously I will write to them. In the mean time, I hope that the noble Baroness will be prepared to withdraw her amendments.
Baroness Sharp of Guildford
I thank my noble friend for her answer. I do not think that any of us who have spoken take issue with the fact that the Bill as a whole aims to improve the integration of arrangements. There is scepticism because we have seen several Bills where that hope has been there. Perhaps this Bill, in its way, is a stronger one. Clause 26(4) states:
“Joint commissioning arrangements about securing education, health and care provision must in particular include arrangements for … securing”,
EHCs. The Bill is quite explicit in making clear that integration should take place.
Lord Low of Dalston
“( ) If the education and care provision referred to in subsection (1)(a) and (b) is deemed insufficient to meet the needs of children and young people under subsection (2), a local authority must—
(a) publish these findings;(b) involve those consulted in subsection (3) in producing an action plan to revise the education and care provision referred to in subsection (1)(a) and (b);(c) review and report on progress against its action plan;(d) revise the local offer accordingly.“( ) Regulations must make provision about—
(a) criteria to be used by local authorities in assessing whether the education and care provision referred to in subsection (1)(a) and (b) is sufficient under subsection (2);(b) the information to be included in an authority’s action plan;(c) how an authority is to involve children, young people and families in the production of, and assessment of progress against, its action plan;(d) imposing time limits on implementing the revision of the education and care provision referred to in subsection (1)(a) and (b) deemed insufficient.”
Lord Low of Dalston
My Lords, the Support and Aspiration Green Paper, published in 2011, contained the aspiration that it would be as good as its name and would make the system of provision less adversarial and give children, young people and their parents greater clarity about their rights. It clearly stated that local authorities would have to set out a local offer which parents could rely on. However, parents and special education professionals are concerned that the Bill will not put an end to the battles faced by families which the Green Paper so clear-sightedly analysed as a major blot on the system and pledged to end. They also worry that it fails to put in place appropriate accountability mechanisms in order to ensure that local authorities deliver the support that families need.
The Government’s intention to put children, young people and their parents at the heart of the system, and Ministers’ oft-repeated desire to ensure that the services outlined in the local offer are responsive to families’ needs, are commendable. The key to this is accountability: if families with disabled children and children with special educational needs are not able to hold local agencies to account for the delivery of the services in the local offer, they will have no way of ensuring that the services they need are available.
The Bill makes some useful moves in this direction. Clause 27 states that local authorities must consult children and young people with special educational needs and their parents when reviewing education and care provision in the local offer. Clause 30 requires local authorities to publish comments about their local offer from children with SEN and their parents, as well as the authorities’ responses to those comments. However, I am concerned that, while publishing the comments is a start, it will not of itself ensure that local offers are responsive to local needs. Local agencies will be under no obligation to act on the comments and to make the improvements parents want to see. Parents will still have to battle with local authorities for the services they need.
The amendment places the onus on local authorities to improve the service, rather than leaving children, young people and their parents to fight for their rights themselves. It would require local authorities, after publishing comments on the local offer, to involve young people and parents in producing an action plan to revise the education and care provision outlined in the local offer; to review and report on progress against the action plan; and then to revise the local offer accordingly. This would help to ensure that local support is responsive to local need.
Without this amendment, which is aimed at driving up the quality of local services, I fear that little will change for families, and the opportunity to transform the lives of hundreds of thousands of disabled children and children with special educational needs will be missed. Parents will still feel that they have to battle through the labyrinths of bureaucracy the Green Paper spoke about for the support they and their child need. I therefore hope that the Government will adopt this amendment, which will ensure that the local offer will be something parents can indeed rely on. I beg to move.
Lord Touhig (Lab)
My Lords, I add my support to the noble Lord, Lord Low, on Amendment 98A, to which I have added my name. I shall also speak to Amendment 99, in my name and the names of my noble friend Lady Hughes and my noble friend Lady Jones.
The noble Lord, Lord Low, has outlined the objectives of Amendment 98A, which requires local authorities, where services that they provide have been found insufficient, to involve parents and young people in producing an action plan, to revise the education and care provision in the local offer and to review and report on progress against the action plan.
I look across the Room. I believe that the Minister has spent most of his life working in business. I am sure, therefore, that he would see the merits of this amendment; if he ran a business that was in danger of losing a major customer, he would want to find out why and then to put in place an action plan to deliver what the customer wanted, thereby keeping the business. Amendment 98A does just that. The provider of the service is required to engage with the user to ensure that what is provided is what is needed. That seems sensible to me.
I turn to Amendment 99. Clause 27 requires local authorities to keep education and care provision under review. While that is welcome, in the view of the Opposition it is insufficient. Amendment 99 would require local authorities to assess whether there was sufficient funding in place to be able to secure these services for all the children and young people who needed them. If they found that they lacked the wherewithal, they should consider jointly commissioning services with neighbouring local authorities where appropriate.
These are difficult economic times and there has been huge pressure on local authority spending and budgets. Whether or not services are secured and available should not depend on whether a particular local council can afford the level of provision needed to meet the needs of children and young people in its area. Therefore, collaboration strongly commends itself.
I am sure that I am not alone in believing that accountability is the key to these reforms. Parents, children and young people should be able to rely on the services provided by the local authority and render it accountable when that provision is not met. That seems fair and proper, and our amendment requires local authorities to consider working together and sharing services with neighbouring authorities. I believe that that already takes place in a number of London boroughs. I know that in my part of the country, Wales, a lot of collaboration is now taking place between local authorities that are sharing the ability to provide services across a number of boroughs.
Importantly, Amendment 99 would not constrain local authorities to work with others but would merely require them to consider doing so in the interests of improving services for children and young people. The amendment was dismissed in the other place, where the Minister said that the decision for spending on children and young people with special educational needs must remain one for the local authority. We would certainly agree with that, but nevertheless Amendment 99 highlights a problem and seeks to find a solution. If the Government recognise that there is a problem but do not want to accept this amendment as a solution, will the Minister explain how they will ensure that local authorities deliver the services that young people and children need and that they are accountable for providing those services? In other words, if the Government do not like our solution, what is their solution to a problem that we all recognise exists?
Baroness Wilkins (Lab)
My Lords, I support Amendment 98A, moved by the noble Lord, Lord Low, and I echo his comments that accountability must be at the heart of SEN reforms in the Bill. I will also speak to Amendment 99, which is a better version of my Amendment 98, which I withdrew.
Times are tough for all families, but for families with disabled children the challenges are even more acute. The current SEN system has led to parents with disabled children all too often feeling powerless, overwhelmed by the seemingly endless bureaucratic hurdles that they need to jump over to access the support their children need. Parents are exhausted, demoralised and unable to understand why it is such a battle for their children’s needs even to be recognised, let alone given adequate support.
Recent evidence shows that one in eight families in England who have a child with SEN are being pushed to breaking point by a lack of support. Scope’s Keep Us Close report found that 62% of these families said that the services they need are not available in their local area and that that has a serious impact on their family life. It is vital that robust accountability measures are in place around the local offer. This would give parents the confidence that their needs would be listened to and that local support would be in place to enable their children to be a part of their community and part of society, and to have the same opportunities as their non-disabled peers.
Amendment 98A would ensure that the local offer was not merely a “Yellow Pages” of SEN support, as many fear it will be, but was rather a living document, responsive to the needs of families and with a clear intention to improve local services. The current requirement in the Bill for local authorities to publish comments from parents on the local offer, although an important first step, does not go far enough and will not fulfil the Government’s ambition to, in the words of the Children’s Minister, put the child and their family in the driving seat. The amendment would require that local authorities actively involved parents and young people,
“in producing an action plan to revise the education and care provision”,
outlined in the local offer,
“review and report on progress against its action plan”,
and then,
“revise the local offer accordingly”.
That would give Clause 27 some much needed teeth. It should confine the battles, fights and struggles faced by parents to the SEN history books.
Baroness Howarth of Breckland
My Lords, I find the speeches of the noble Baroness, Lady Wilkins, a breath of fresh air. Often, sitting in these debates, I feel that I am in a time warp bubble where we have high hopes and expectations for the future. The word “hope” was used earlier by the noble Baroness, Lady Sharp, and I think I muttered to the noble Baroness, Lady Howe, “Is hope enough to achieve what we want?”. I ask the Minister to be realistic in her response. We are raising the expectations and hopes of hundreds of families. Day in and day out, I see families struggling to get services that they simply cannot access or which do not exist, and being persuaded to accept something else because what they feel they need is not available.
I welcome the Bill enormously. As I have said before, I think that at its heart is a real care for that group of families, but I am immensely concerned about what happens when it goes through. I speak also as a vice-president of the Local Government Association and work often with local authorities and their leaders. I know the struggle that they are having with government finances to make those services work. I ask the noble Baroness how we move towards achieving those services, and that level of services, while keeping a realistic picture, so that families do not expect more than they can hope for, but somehow ease the system so that, as the noble Lord, Lord Low, said, they are not engaged in a huge antagonistic battle day in and day out to move just a step forward. If only we could make some of it easier and clearer so that they knew what they could expect, that would be of huge benefit.
I am sorry if I sound slightly sour in saying all of that, but the noble Baroness, Lady Wilkins, presented us with the reality as it is, and as many of us see it on the ground, day by day. I think that I have said enough to make my point. I care about the families; I care that they do not have unrealistic hopes. I just want them to be able to get what is intended by the Bill.
Baroness Howe of Idlicote
My Lords, I am happy to support the amendment of my noble friend Lord Low to strengthen the accountability measures around the local offer. I hope that all the comments that have been made will strengthen the arm of the Government in making certain that they are delivered.
For far too many families the process of accessing support for their disabled child or child with special educational needs involves them navigating their way around a complex, inflexible system which is still steeped in bureaucracy. All too often parents feel that they have to be persistent and tireless if they are to get the services they need, with only articulate families or those who shout the loudest—in essence, probably, more middle-class families—being listened to. Therefore, accountability around the local offer for services, on which almost 1.4 million children will be reliant, must be as robust as possible so that families can ensure that the services they need are available in their local area.
This is something that the Education Select Committee emphasised in its pre-legislative scrutiny of the SEN reforms, stating:
“The importance of getting the Local Offer right cannot be overstated”,
and recommending that the Bill must contain improved accountability measures by which offers can be evaluated. The amendment of my noble friend Lord Low would create a situation where local authorities would have to work closely together with families, as well as with school governors, children’s centres and nurseries, with the common aim of making local support for disabled children and children with SEN the best that it can be.
In these difficult financial times, when every penny counts, ensuring that children with SEN are given timely and effective support in their local communities will certainly prevent families reaching crisis point, where they need more expensive support further down the line as a result. We should not underestimate the importance of this partnership working. Too often parents feel powerless and that their needs are not being listened to. As a consequence they are forced to fight for a statement of special educational needs or to go to a tribunal to get the right support for their child. This is, and remains an unacceptable situation. It wastes time, money, resources and can be emotionally draining for parents who already face immense challenges on a day-to-day basis. Indeed, I echo the chair of the Education Select Committee, the Member for Beverley and Holderness, who stated at the Report stage of the Bill in the other place that he hoped there would be fewer people having education, health and care plans than under statements,
“because local offers meet so many of the needs of parents and young people”.—[Official Report, Commons, 11/6/13; col. 205.]
The local offer has the potential to be truly transformative in improving the lives of families with disabled children, ensuring that services are designed by families for families. However, I am not confident that the current provisions in the Bill will guarantee this. I will listen with enthusiasm to any reassurance I can get. I further urge the Government to accept the amendment of my noble friend Lord Low, which would prioritise the needs of families and ultimately lead to better life outcomes for 1.4 million children.
Lord Northbourne
My Lords, I support the amendment of the noble Lord, Lord Low, and the comments that the noble Baroness, Lady Howarth, made about it, which were very wise and very important. Both those speakers have said what needs saying more ably than I can, and I am not going to repeat it. The only thing that I am going to raise with the Minister is whether this does not raise a question about the rather extraordinary wording of Clause 25(1):
“A local authority in England must exercise its functions under this Part … where it thinks that this would”...
Leaving aside the rather esoteric question of whether or not local authorities think, that enormously weakens the residual provisions in these clauses. It gives the local authority the excuse to say that it does not think that these things are absolutely necessary. I wonder whether the Minister might think about that.
The Countess of Mar
My Lords, I was horrified to be pointed to the report by the Children’s Commissioner, Always Someone Else’s Problem. The executive summary, which I am afraid is all I have had time to read, says:
“We have found evidence of … pupils being excluded without proper procedures being followed; these exclusions are usually for short periods, but may be frequently repeated, meaning that the child misses substantial amounts of education … pupils being placed on extended study leave, on part time timetables, or at inappropriate alternative provision, as a way of removing them from school”.
It goes on to list other examples, which I am sure the Minister is familiar with, but the final one is,
“local authorities failing to deliver their legal responsibility to provide full time alternative education for children from the sixth day of exclusion”.
In the report the Children’s Commissioner says that it is mainly SEN children who are what she calls illegally excluded from school. I am very concerned that local authorities are perhaps not taking due care to ensure that this does not happen in their areas. This is an excellent amendment that would perhaps preclude this sort of thing from happening. From that report, it seems to be happening on a very large scale.
Baroness Northover
My Lords, we appreciate the concerns that have prompted the amendments in this group and noble Lords’ determination to ensure that we move things forward for children with special educational needs, and I welcome the opportunity to respond to the discussion. I thank the noble Baroness, Lady Howe, for saying that the local offer has the potential to be transformative for these children.
We understand the reasons why the noble Lords, Lord Low and Lord Touhig, seek the publication of an action plan if the education and social care is deemed insufficient. I assure them that there is already scope in our provisions for children and young people with SEN and their parents, and local providers, to be involved in improving provision where it is insufficient. Clause 19 clearly sets out the guiding principle of the SEN provisions, which is all about putting children, their parents and young people at the heart of what the local authority does. It sets out the importance of involving children, their parents, and young people as fully as possible, and includes the need to support them to achieve the best possible outcomes.
Children and their parents, and young people, are also central to the local offer. Local authorities will be under a duty to review their local offer in Clause 30(5) —noble Lords have made reference to that—and regulation 4 of the draft local offer regulations sets out who they must consult in such a review. Local authorities will also be under a duty to publish comments on the local offer under Clause 30(6). Noble Lords, again, made reference to that.
The noble Lord, Lord Low, was probing on accountability and how the review would then, as it were, have teeth. We understand the noble Lord’s points about accountability, and we will be discussing this in a later group. Perhaps we can return then to how that will be done. However, I would say that the local offer in Clause 30(6) will require local authorities to publish their response to comments that they get from children, their parents and young people, so there is a major incentive there to act.
That is also made clear in Chapter 5 of the code of practice, which says that local authorities should publish an explanation of the action they are taking to respond to the comments. It is not simply a case of publishing what that response is. This brings transparency—a point that the noble Baroness, Lady Jones, made previously—and potential publicity. We must bear in mind that local authorities are themselves accountable to their electorate. In the debate on the previous group, I mentioned other ways in which people could hold local authorities to account. However, I do not think that it is going to be very comfortable for local authorities to have to publish critical comments and to have to justify why they are doing what they are doing. That is certainly worth bearing in mind. As I mentioned, local authorities must consult widely and involve children and young people with SEN and the parents of children with SEN in shaping local provision.
Baroness Howarth of Breckland
May I just ask a question about the funding? Much as local authorities do not like ring-fencing, how will the Government ensure that that funding is properly directed to these services?
Baroness Northover
The issue of exactly how to make this as effective as possible is under discussion at the moment, and I am very happy to write to the noble Baroness to spell that out in more detail.
Baroness Wilkins
To return to the question of funding, the Government have said a number of times that they are protecting funding for vulnerable families, but that protection is not being carried through at local level. The Government seem to be remarkably complacent about this. Surely action must be taken so that the funding reaches the people who need it.
Baroness Northover
I hear what the noble Baroness says. She is a doughty champion in this area. The best thing is if we write explaining what I have just said in further detail. Maybe she would then like to respond so that we can look at that further and get back to her.
Baroness Wilkins
I wonder if the Minister would meet with the organisations concerned, which would be far more helpful.
Baroness Northover
Being a very low-level Minister, I am not sure how useful that would be for her group. However, I will refer it to my far more significant noble friend. I know that the department is very open to discussions with all interested parties. In the light of that, I hope that she will be reassured.
Lord Low of Dalston
My Lords, it seems clear that this amendment has touched a nerve. People have spoken with real passion and feeling about the need to put more beef into the local offer in ways such as I have set out in the amendment: through a process of review, revision of provision, development of an action plan through consultation, reporting against the action plan, leading on to the revision of the local offer.
All those who have spoken, and I am grateful to them for their comments, have been very much in support of the Bill’s aspirations but have been concerned that the provisions in it at the moment may not be adequate to deliver those ambitious aspirations for the children and young people whom we are concerned about and whom the Bill deals with.
I am grateful to the Minister for her reply. There was plenty of detail in it. I would like to read it, if I may, and measure it against the aspirations that we have in the amendment. It may be that what the Minister has set out will meet the concerns of those who developed it. However, this has touched on something, and I have a sense that we may be brewing something more focused that will reflect the anxieties and concerns that have been raised around the Committee when we come back on Report. For now, though, I beg leave to withdraw the amendment.