Grand Committee
Children and Families Bill
(11 years ago)
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Lord Lingfield
Lord Lingfield (Con)
My Lords, the four amendments in my name, which are necessarily probing amendments, have as their purpose to include higher education in the Bill in cases where there is a reference to local authority duties related to education provision for young people up to the age of 25.
Unlike in the past, more and more young people with disabilities are now entering university courses. Sometimes they receive first-class support; other times, alas, it is very much wanting. There should be a seamless pattern of support whether or not a student aims at further education, which is catered for in the Bill, or for higher education. My amendment to Clause 27(3)(h) includes higher education institutions among the bodies with which a local authority must consult as part of its duty to keep education and care provision under review; the amendment to Clause 28(2)(e) adds higher education institutions to the local partners with which a local authority must co-operate; my amendment to Clause 29(2)(d) adds higher education institutions to the list of bodies that must co-operate with the local authority and vice versa; and, on the preparation of draft EHC plans, the amendment to Clause 38(3)(d) adds higher education to the institutions whose naming in the draft plan can be requested by a parent or young person.
At Second Reading I greatly welcomed the extension of the coverage of legislation from birth to 25 years of age, unlike the current system, which applies only to the end of school-based education. At that point under the current system, to quote a parent who gave evidence to my own commission on special needs, a child will often fall off an educational cliff. In light of the welcome extension of legislation to the age of 25, it is particularly important to make sure that higher education is included explicitly in this primary legislation in order that it will be regarded in the same way as further education and other post-16 provision under the new system of assessments and EHC plans. Without such amendments I fear that we will not improve the current and, in my view and the view of many parents and students, imperfect system, where there is a separate and often disconnected process for assessing and meeting the needs of young people with special educational needs who are successful in reaching higher education.
It is not often understood that currently a young person with a statement at school will not automatically have the same provision at university, and that the previous support that has come via a statement of needs has to be reassessed by Student Finance England before university entrance. I am told by those with direct exposure to this process that Student Finance England’s reassessment process does not provide for as thorough an assessment as that which would come through the current statutory assessment or, it is to be hoped, through the new EHC plan. As a result there is a clear risk of delay in support for these young people, especially where, as in many cases, there is no reason whatever why the provision that has supported them for years beforehand should cease.
I also note a separate but related concern that the expertise available to Student Finance England may be very different from, and possibly more limited than, that available to local authorities, healthcare providers and others for EHC plans. Indeed, it is rather surprising that Student Finance England and universities do not as a matter of course currently accept the advice of local authorities, expressed in the form of a statement, bearing in mind that local authorities have considerably more expertise available to them in the form of access to educational psychologists, speech and language therapists and occupational therapists.
All this is illustrated very clearly by a case that was drawn to my attention, of Michael. Michael has dyspraxia, including severe oral and motor dyspraxia, and had a statement of special needs from the age of three. Nevertheless, despite Michael’s statement being reviewed annually, Student Finance England declined to accept this as evidence of his disability. A fresh set of reports were required and had to be paid for by Michael’s parents in order to compel Student Finance England to recognise that there was a pre-existing disability. Michael has now, with continuing and appropriate support, obtained a first-class honours degree in philosophy at his university.
In the new system, designed to cater for the needs of children and young people up to the age of 25, maintaining a different assessment process for those who are capable of entering university, as opposed to further education or other provision, will perpetuate an unfortunate anomaly which, in my view, could put off young people with disabilities from attempting a degree course. Surely the repetition of the process by two state-funded bodies is a waste of money. Any moves to address this disconnect, such as those sought in these amendments, surely must be welcomed. I very much hope that the Minister will give this her full consideration. I beg to move.
The Earl of Listowel (CB)
My Lords, the noble Lord’s amendments prompt me to ask a question. We know that care leavers have been increasingly going to university, although it seems to have stalled rather at the moment. The question is: of the care leavers going to university, what proportion have special educational needs? Are we doing as well with care leavers with special educational needs going to university as we are with the general body of care leavers going to university? Perhaps the Minister will write to me on that particular question.
Baroness Brinton (LD)
My Lords, I declare an interest as my sister is a BSL interpreter at a university in the UK and I worked in the higher education sector for 20 years. I will pick up on the last point of the noble Earl, Lord Listowel. Part of the problem in the HE sector is that there is not always consistency. “Care leaver” can be defined by an individual institution. There are usually generous grants, and they are usually on top of any SEN support, but the definition of care can be quite limited. Certainly it would not always cover guardianship or kinship carers, where children have come out of care. Those are some of the issues that remain.
The reason that I wanted to speak to these amendments is that I absolutely applaud the sentiment behind them. If we are truly to have an SEN offer that covers young people to the age of 25, it is ridiculous that an entire sector of education is not covered by it. My fear is that this amendment tries to tack universities on to a much more local offer, thereby causing problems. I will ask the Minister a couple of questions on this later.
The university provision can be very generous. However, as the noble Lord, Lord Lingfield, outlined, for some students, where there is perhaps the possibility to have diverse views, such as with dyspraxia, dyslexia or one of a number of other SENs, it can be very difficult to get past the first hurdle. I would welcome a transition arrangement, as we have for young people with learning disabilities and social care support moving from child support into adult services, for those with special educational needs entering universities. At the moment they stand completely separate, and frankly that is where the holes start to appear. If a child has a statement under the old system, or an EHC under the new system, they should have that information passed on automatically, along with the level of support that they have had in the past, providing the young person is happy for that to happen.
I notice that the Minister in the Commons said that he would provide further detail as to the proposed contents of the code of practice relating to the transition to university, and made a commitment to consult widely with practitioners in university in drafting the code. I think that that would be extremely helpful. I would also welcome further details from the Minister—perhaps in writing as it is not directly within her field—as to what action the Government will take to ensure disabled students have disability support in place as soon as possible in their course of study. In particular, there needs to be a commitment for the code of practice to recommend that local authorities support and encourage DSA applications as soon as possible the year before entry, and that such support in applying for the DSA is stipulated in the plans of young people intending to study at university. The problem is that that conflicts with the current timescale for young people to be encouraged to apply through student finance, which most people do not do until they are well into their final exams in the summer term before they plan to go up to university. That is too late for students with statements and support because there is not enough time for receiving universities to do the research necessary to provide the right support.
I have said before that I am concerned about local authorities having a duty to secure a place in higher education for students, as would be the implication of this group of amendments. I would encourage mechanisms, perhaps through an alternative amendment, to make sure that there is dialogue so that not just the statement is carried through. If the student has concerns, the local authority may know and understand the case better, and sometimes it is useful if the young person is not the only one arguing their case.
I have probably covered it all. I regret not being able to support these amendments but there may be scope for something that ensures that these young people studying in higher education, whether in college or at university, have as smooth a transition as possible and the continuing level of support without having to reargue the case from scratch.
The Countess of Mar (CB)
My Lords, about a fortnight ago I forwarded to the Minister an e-mail I had from a young man who is autistic, questioning the fact that this Bill prevents local authorities from funding university education for SEN young people. I asked the Minister for clarification. Would it be possible to get that today? Are local authorities still able to fund young people to go to university or has the Bill blocked that funding?
Lord Low of Dalston (CB)
My Lords, I speak to Amendment 155 in my name. Clause 38(3) sets out the types of institution that may be named in an education, health and care plan. Ministers have stressed the importance of a joined-up approach and that a system that goes from nought to 25 will improve the lives of children and young people with special educational needs. I was therefore a bit surprised to see that higher education institutions were omitted from the list. That means that if a young person with a special educational need decides that they wish to pursue a university education, they must do so without the support of an education, health and care plan.
Disabled young people and those with special educational needs need all the support they can get to go to university. Disabled graduates are much more likely to get a job than those without a degree. In 2012, 71% of disabled graduates were in employment compared with only 42% of disabled non-graduates. Yet disabled young people are less likely to go on to higher education than their non-disabled peers: in 2009-10, it was 33% of disabled as against 41% of non-disabled young people aged 19.
Lord Touhig (Lab)
My Lords, I have added my name to that of the noble Lord, Lord Low of Dalston, on Amendment 155 and it is to that cause that I wish to speak. If there is one thing where I find myself at one with the Government, it is in our shared ambition to encourage young disabled people to have the highest aspirations for their lives and to be self-assured and confident about their future. More and more disabled youngsters are liberating themselves, to the extent of refusing to accept their disability as a barrier. They are self-assured, confident and determined to have a full life.
For many, the pathway to that full life is through a university education but higher education facilities are currently excluded from the new framework created by the Bill. Given that I share with the Government this ambition that disabled youngsters should have the highest aspirations, I am mystified why they should be excluded. Indeed, I am sure that I am not alone in this Committee in thinking that. Many universities already meet the educational needs of disabled young people. Surely we want to feed and encourage this.
All too often, unfortunately, disabled students, even when given first-class support at universities, find it hard to access other services that they need. A report by the Trailblazers group found that 30% of young disabled people felt that the number of places where they could study was limited because of their concerns about an all-round care package. One student named Zoe, who was at Oxford, told Trailblazers:
“My local council had never sent a disabled person away to university before. They were quite insistent that I should stay and study at my local university (ranked at 119th as opposed to Oxford, ranked first), and do a course that I had absolutely no interest in. My decision to move away was treated with complete bewilderment; there was no understanding of how my care package would be accommodated, and the idea that agency care was more expensive in the new local authority caused real problems when negotiating”.
Lauren, who graduated from Manchester in 2012 and is now doing a master’s degree at Leeds, recalled:
“My local authority would not give me the required hours straight off. We had to appeal. Luckily we started the process a year before so had enough time to do this”.
Katy, who studies at Bedford, said:
“After an argument my home county agreed to pay for my personal care but I nearly didn’t qualify for funding as their criteria for supporting people was for those whose needs were ‘substantial or severe’”.
Finally, Rupert, who is at Canterbury Christchurch, added:
“First of all, I was living in Lewisham and Lewisham Council didn’t want to tell us that they were responsible for providing and funding the care themselves. They knew they had to but didn’t inform me. We found out through other sources, so they eventually paid up”.
Disability discrimination legislation has been in force since 1995, yet disabled people still have to struggle for equal access in many areas of our national life. Young people with a disability face challenges and hurdles enough that the rest of us do not face. Amendment 155 is a step in the right direction. It is one more step in creating a level playing field for all our citizens, able-bodied and disabled, thus ensuring that all can use their talents to the full and have a full life.
Lord Addington (LD)
Sometimes higher education provides better support than further education. I must declare that I have commercial interests in a firm that enables it to be done through the DSA. The transition between the two bits of education is probably unnecessarily complex. Making sure there is a smoother connection and an exchange of education from higher to further and the other way around would enhance the system and would probably allow people to study better in both places. I am interested to hear what my noble friend has to say on this matter. This is a recognised problem of transition and has been around a long time. It will be interesting to hear the Government’s thinking on this matter.
Lord Lucas (Con)
My Lords, we have had a briefing from Universities UK on this subject, which I suspect was compiled largely by talking to registrars, who wish that the problem would go away and who feel that it is not really their responsibility. I think disability officers in universities would take a rather different attitude, which is that they are not receiving the support they need regarding health and social care from their local authorities or clinical commissioning groups, which tend to regard the itinerant student population as somebody else’s responsibility and to think that an 18-month waiting list for mental health treatment for a student is appropriate.
I think there is a wish within universities for a better connected, more responsive system, such as we are putting in place for students in FE. I understand from what various noble Lords, particularly the noble Baroness, Lady Brinton, have said that there are some aspects of the system that has been put in place for younger ages that would not fit universities. We ought to look carefully at what would suit university students. We ought to do so by talking to the people in universities who have to deal with these problems. They are conscious that the system they face at the moment is not by any means as good as it might be, and not as good as the sorts of things we are putting in place through this Bill.
I hope my noble friend will allow me to come and keep her company between now and Report with some of the people who deal with this as a daily issue in higher education to see whether there are some changes, whether in guidance or the Bill—I suspect probably in guidance—that would alleviate the problems they suffer in doing well by the disabled students they have to look after.
Lord Storey (LD)
We all want the same thing, and on Report I shall be interested to hear what the Minister has to say. I have current examples of young people who have gone to university, a young girl with cerebral palsy being one. My personal experience is that they have been very well supported by the universities, and all credit to them for giving that tremendous support. If we have established an education, health and care plan post-higher education, it just seems sensible to me, in my innocent way, if the requirements in that plan are carried through for the student when they go into higher education. I can appreciate that there might be slight delays because of the timescale of applying and getting to know and getting to grips with the university, but it seems common sense that if a young person has special needs, whatever they are, and they are contained in the plan, then the plan should be carried forward with them and continued into higher education. That seems simple and it would help the student a great deal.
Baroness Northover (LD)
My Lords, I thank noble Lords for this stimulating and important debate, and I thank my noble friend Lord Lingfield for initiating it. We all very much agree on what we are trying to do here, and I am very grateful to him for emphasising that these are probing amendments, testing why we are doing things as we suggest here.
We share his ambition and that of other noble Lords that there should indeed be a seamless transition of support between school and higher education. We share noble Lords’ ambition that young people with SEN and disabilities should reach their full potential, including securing a place at university where that is an agreed goal and is appropriate. However, we do not believe that bringing higher education institutions into the framework of this Bill will help us to further that ambition. My noble friend Lady Brinton very much touched on that when she emphasised that this is about the local offer. Exactly how this would be applied as far as higher education is concerned is slightly different.
Higher education institutions are independent and autonomous organisations, responsible for all decisions on student admissions. When young people take up a place in higher education, they start a new phase of education—one in which they will be expected to develop a different approach to learning. Universities, not local authorities, are therefore best placed to support young people through this transition. However, I shall come back to the transition point in a minute.
Higher education courses will vary greatly in terms of content, delivery and assessment across institutions and subjects. Local authorities have no part in providing or commissioning higher education, and are unlikely to have the skills or experience to write a plan to suit the specific nature of the course being studied or the approach of the university.
As Universities UK says in its briefing on these amendments:
“The level of specialist knowledge required in assessing support needs for students on particular degree courses can be extensive, and is best carried out within the institutions delivering those courses. Universities UK would not want to see this system supplanted or duplicated by a local authority-based system”.
Of course, higher education institutions come under the Equality Act, like everything else. They are responsible for complying with the law in promoting disability equality and for making reasonable adjustments for disabled people. Universities take these duties very seriously. A recent report published by the Equality and Human Rights Commission on the publication of equality objectives by English public authorities shows that higher education institutions are the best performing bodies in the public sector in publishing policy objectives on disability. Institutions are expected to have in place arrangements that can proactively meet the needs of disabled students and can be adapted to individual circumstances.
Baroness Brinton
I was very pleased to hear the Minister’s response about the revised code of practice. I just wondered whether discussions had been taking place between the department and the LGA with Student Finance England, whose website is woefully inadequate on SEN; it is all about applying for finance. There is nothing on the front page that comes up and hits you. The problem is that students who have SEN statements do not know where to go to get into the system early.
Baroness Northover
My noble friend highlights a very important problem that we keep coming back to. It is one thing having arrangements in place; it is another thing making absolutely sure that those who need to benefit from them know about them. I shall carry that back and make sure that my noble friend’s recommendations, suggestions and points are fed in.
The Earl of Listowel
I welcome what the Minister said about the Government’s care-leaver strategy. I have been following it with interest and warmly welcome it. I thank her for the response to the question that I put to her. From what she said in response to the debate, I am reminded that on many occasions when I have spoken with families who have children with disabilities, they have raised an important practical point: the change in adult advocate just before the child reaches majority often undermines the transition into adult services, whether they are education or other services. This may well have already been raised in Committee but I should be interested to hear whether the Minister recognises that as a problem. Can she say whether there is any progress in ensuring more continuity in the professional relationship between social workers and families to minimise this stumbling block in the transition from child to adult services?
Baroness Northover
I thank the noble Earl for his comments—and for his thanks to me. Again, we are all very concerned, in this and other areas, that the transition of a child becoming a young person and into adulthood is supported as effectively as possible, especially for the more vulnerable of our young people. Again, I will make sure that the point the noble Earl made is fed in. It would help if he looked at the draft code of practice to see whether he feels reassured by that.
Lord Touhig
My Lords, I am sorry but I missed a little of what the noble Baroness said in response to me. Was the reference she made to the noble Lord, Lord Wigley, about something in the Care Bill?
Baroness Northover
Yes. As I listened to the noble Lord, it struck me that some of the concerns he had would be addressed by the way that the care of a particular individual moving from one area to another should be looked after. He highlighted cases of students who wished to move from home to study at particular universities—just like all other young people who had those ambitions—but their personal situation stood in their way. We clearly need to ensure that that is not the case. The Care Bill should help in that regard because of the responsibilities there in terms of social care, outside the responsibilities I also mentioned in terms of education support.
Lord Touhig
I am grateful to the noble Baroness. The noble Lord, Lord Wigley, and I work quite closely on these matters.
Lord Lucas
My Lords, what my noble friend said about that is very encouraging but it is not always a pre-existing condition. In particular at university, mental conditions can become apparent that were not before because the environment is that much more challenging. I am sure there are many occasions when it works, but certainly on occasion universities find that getting provision for a student who clearly demonstrates the need for mental-health assistance can be extremely difficult where the local authority and clinical commissioning group feel they have other priorities for their permanent residents. This would not be a transfer. It is getting help within the context of a university for a student, rather than having to send them home—which misses the point of supporting them at university.
Baroness Northover
I am sorry I did not address the points from my noble friend Lord Lucas, who wished to “keep me company” in discussing this Bill. I am very happy to keep his company—and that of any other noble Lords or Baronesses, should they wish. He is absolutely right: supporting students with mental health challenges is a vital area. I hope that he will be reassured that in the National Health Service now there is parity of esteem between mental health and physical health. We know that good mental health underpins better physical health. The challenges that students face when they leave home and are at university under all sorts of pressures are something we are acutely aware of, as are the higher education institutions. If there are instances where students are not being looked after within those institutions and health services locally, that is obviously a cause for concern.
Lord Lingfield
I thank the Minister for her reassurance. As she and my noble friend Lady Brinton will be glad to know, these were simply probing amendments aimed at debating this terribly important subject. As my noble kinsman Lord Addington said, the move from school into higher education is terribly important. Other noble Lords underlined that. Higher education is terribly important for these young people, as the noble Lord, Lord Low, illustrated with the statistics that he brought to us.
One point that my noble friend Lady Brinton made concerned the fact that while, of course, a young person can start early in their application to Student Finance England, most young people know only late in August, when they get their A-level results, which university they will go to. That leaves about a month and a bit to get all this straightened out. As the noble Lord, Lord Touhig, and the report that he commented on have shown, sometimes first-class accommodation that is entirely suitable for young people of this kind is provided. I am afraid that other universities do not have it. Neither I nor any of the young persons or their parents who have spoken to me are concerned as to which silo the funding for this should come from. All one is concerned about is that the provision should be as seamless as possible and that, unlike at the moment, the new plan should at the very least be taken into account when consideration is given to funding a young person who is going into university. Perhaps, along with the noble Lord, Lord Lucas, I should keep the noble Baroness company in order to discuss this further.
Lord Low of Dalston
Lord Low of Dalston
My Lords, I shall speak also to Amendment 102 in my name. These amendments would specify that local authorities must publish information about the provision both within and outside their area “which is”, rather than “it expects to be”, available,
“at the time of publication for children and young people who have special educational needs”.
I have received a number of briefs that make the case for these amendments with considerable rhetorical flourish. However, the matter can be put much more simply.
The amendments simply require a local authority to call a spade a spade and to set out in the local offer what actually is the case, rather than what it “expects to be” the case, which is much more slippery and imprecise. Expects when? On what does the fulfilment of the expectation depend? Parents, practitioners and the special educational needs and disability sector are concerned that the language of expectation rather than actuality could easily be used to let local authorities off the hook and slide out of delivering what they had appeared to promise.
I should like to make a couple of other points. We should be clear about who the local offer covers and who it does not. Independent research by the University of Bath, to which we have already referred in these proceedings, has shown that 25% of disabled children and young people do not have a special educational need and as such will not be entitled to an education, health and care plan or to access the local offer because it is only for those with a special educational need. It is not clear how these 400,000-odd children and young people who have a disability but not a special educational need will secure the support they need if they are not entitled to access an education, health and care plan or the local offer.
Finally, I underline the importance of the local offer including provision which exists to meet the needs of children and young people with special educational needs outside the authority’s own area. This can be especially important in the case of those with particularly severe disabilities, who need to know about the full range of services, often consisting of highly specialised provision not available in the local area.
There is a concern that local authorities will provide information on provision available in only their own area. This is not the same as providing all the relevant information about what is available to meet special educational needs, including provision out of the local authority’s area. If out-of-area providers are routinely left off the list, it will undermine young people’s ability to access the provision which best meets their needs, as well as potentially threatening the viability of highly specialised but vital services.
Young people and families cannot be expected to find all this information about what may be of help to them for themselves without assistance. Local offers should be robust, accessible and effective in promoting choice. I therefore hope that the Minister will give serious consideration to accepting these amendments. I beg to move.
Baroness Wilkins (Lab)
My Lords, I shall speak to Amendment 104, which returns to the issue of funding. The amendment would require local authorities to include information about funding for SEN provision within their local offers.
I set out at the last meeting of the Grand Committee the concerns of the National Deaf Children’s Society, RNIB, Sense and many other charities that local authority spending cuts will fatally undermine this Bill. In her reply the Minister undertook to propose to her “far more significant” noble friend that their department might discuss this matter with the organisations concerned. I look forward to hearing whether any progress has been made.
In her reply to me in Grand Committee, at column GC 545, the Minister assured me that the Government were not cutting services for deaf children and set out the funding situation. However, we know from the National Deaf Children’s Society Stolen Futures report that many local authorities are already cutting support services for children with SEN. The society found that 29% of local authorities will be cutting specialist support services for deaf children this year.
The Government have argued that the Bill will improve transparency and accountability and that it is this which will enable parents to ensure that their local authority provides the services that their children need. However, on looking at the Bill and at the draft regulations and guidance underpinning it, nothing that I can see would require local authorities to be more transparent about the funding. If the local offer is intended to bring together all the relevant information about SEN provision in one place, in a way that is easy to understand, accessible and improves accountability, surely it must include information about funding. Without that parents will be powerless.
The local offer must give parents clear information about how much funding has been allocated by the authority to support children and young people with SEN; it must allow and empower parents to compare local authority spending; and it must allow parents to identify if cuts have been made from year to year. There is a clear need for transparency. The National Deaf Children’s Society had great difficulties in extracting reliable information about funding of specialist support services for deaf children from the local authorities.
In 2012, 49 local authorities—nearly a third—did not respond to freedom of information requests on budgets for deaf children’s services within the legal deadline. One local authority did not respond until six months later, and only after the Information Commissioner’s Office intervened. Its response confirmed a cut to the education service for deaf children. However, as this was not disclosed until so long afterwards, parents were denied any opportunity to legally challenge this decision before it had been implemented.
This is the battle that the parents and charities must face. If the Government were to accept this amendment and require local authorities to publish information about funding in the local offer in an easy and accessible way, it would certainly give parents and charities real leverage to get the services that they need.
Baroness Howarth of Breckland (CB)
My Lords, I support the noble Baroness, Lady Wilkins. At the end of the last debate that we had on this Bill, I asked the Minister to explain how the extra funding that would be made available actually would reach those who needed it. She said that she would write to me. I do not know if I have missed that letter or whether there has not yet been time to produce it; however, I look forward to it.
I think that it is quite complicated, but I want to ask for something in relation to the way that local authorities are struggling to meet their commitments at present. I think that I said then that it is far easier if parents understand what is and is not available and are not misled into thinking that they can have more than is possible, rather than having massive aspirations. Of course I wish that the local authorities had funding to meet every child’s needs, but if that is not possible I think that it needs to be clear.
I move on to my Amendment 107, which is grouped curiously with this amendment. It would be far simpler for the Government to accept and implement. It relates to personal budgets. On page 25, line 2, I would like to insert,
“arrangements to assist young people and parents in managing a personal budget should they choose one”.
Personal budgets have been a great liberator for many adults and families, but for others they have caused extraordinary difficulty. Those of us who work in both the adult and children’s fields have seen in the adult field how many people have found extraordinary problems in managing employment and the financial complexities of budgets. Families are making it clear that they require support to manage personal budgets, and parents with experience of direct payments have spoken of difficulties that they have had in finding, recruiting and CRB-checking good staff, managing money and transactions with the local authority, identifying quality services to purchase, and co-ordinating a package of care. Currently, only 25% of local authorities provide key workers to help manage payments. I find that extraordinary. This leaves families to manage the often burdensome responsibilities of direct payments alone. I hope that discussion around this amendment will help us to better understand the Government’s thinking about the support that they envisage local authorities will provide for those families who opt for personal budgets. Does the Minister accept that all families should have some access to support?
I have a quick case study. As you know, on the whole I do not go in for detailed anecdotes, but I think that this story really does illustrate the issue. Oscar lives in north London with his parents and two siblings. He is about to turn 18. He has autism and learning difficulties. His parents have been receiving direct payments to pay for respite care for the last eight years. His mother explains how difficult it can be to find the right support to buy with direct payments, and to “jump through hoops” to account for them:
“16 months ago our local council agreed to pay for one weekend’s respite care each month, but it has taken a considerable amount of time to agree how to provide this. It has only been in the last two months that we’ve actually been able to use the direct payments to get the support we need.
As Oscar was approaching adulthood, it seemed appropriate for us to try to find him a residential placement for his respite breaks. We hoped that this would help equip him with additional independence skills and that he would enjoy spending time in a new environment. However, when we visited local options it was clear that they were not able to meet Oscar’s complex needs. We decided that the weekend respite would have to take place in our home.
Oscar needs two-to-one support and in a house with two other children this is a challenge to accommodate.
Having two extra adults in our home for a whole weekend has a significant impact on all of us and is confusing for Oscar who wants to spend time with us. But it’s not only space that is the issue. Knowing where to find suitable staff who are equipped to support Oscar has always been difficult, and to cover a whole weekend at least four staff are needed.
I had asked the Council for a list of local carers which they said they would provide, but this never arrived. It is a huge and stressful burden for parents, who already have more than enough to cope with, to have to recruit, interview and train up staff themselves. We are always vulnerable to staff leaving after a few months for better paid work, leaving Oscar very unsettled and us totally unsupported.
For many years I didn’t know who to talk to at the Council about any aspect of this as Oscar didn’t have a named social worker and no one would return my calls. As Oscar is now approaching his 18th birthday, he has now been allocated a social worker and this has made a big difference. However, for many years we felt we were floundering on our own, receiving the occasional official letter threatening action because of some perceived fault on our part.
The Council have now agreed to employ Dimensions, a not-for-profit organisation who specialise in providing services for people with learning difficulties and autism. Together we are now trying to recruit and train a team of four so that we will always have support, even if staff are ill or on holiday”.
Baroness Brinton
My Lords, I support the comments that have been made by previous speakers. I shall add a brief comment on Amendment 104. At the end of his speech, the noble Lord, Lord Low, helpfully said that we need robust, accessible and effective information in the offer. I would add “consistent and detailed”. If parents are comparing different authorities, as they may have the option to move, they must be able to see apples and apples rather than completely different things. Despite our need for individualism within local authorities, it would be very helpful if the offer were expressed in a fairly familiar and consistent way.
There also needs to be some detail in it. I shall come on to that in a later group that also looks at the publication of the offer. Without that detail, it can be very difficult for parents to understand what is on offer. I know a qualified teacher of the deaf who has just retired. When I first met her 15 years ago, she was based in one school with a number of children who were being integrated into the mainstream there. She spent the last five years before she retired in her car tearing around the county from appointment to appointment. As far as the local authority was concerned, deaf children were being taught sign language, but a 20-minute session every other day is not good enough for a child just starting sign language. Parents might think that they are going to get a level of offer that they are not going to get if the information in the offer is not explicit.
Lord Touhig
My Lords, I shall speak to Amendment 110, which is in my name. It ties in with other amendments tabled which seek to ensure that the local offer has both teeth and some meaning for parents looking for support. The amendment places a duty on the responsible agencies to deliver the services that they say will be in the local offer. The Government have already placed a duty on health bodies to deliver what they outline in EHC plans. However, a corresponding commitment in relation to the local offer remains sadly absent from the Bill. It is the local offer that most children with additional needs—and there are 1.4 million of them—will be relying upon.
In the other place, the Minister said that to have such a duty would limit the services which groups such as voluntary and community organisations were prepared to offer. He also said that the local offer already increased accountability by involving children and young people and their families more and allowing them to compare what is offered. I agree that listening to children and young people and their parents, and ensuring that they have adequate information, is the right approach but the omission from the Bill of a duty on responsible agencies to deliver services is simply not right in terms of accountability, or in ensuring that families will actually receive the services specified as being needed in the local offer. It is important that there is real accountability. The Bill is currently lacking in this area for the delivery of the local offer. If we do nothing about it, there is a serious danger that the local offer will serve as merely a statement of ambition rather than as something upon which parents and families can rely. Amendment 110 would put some meat on this bone.
Lord Northbourne (CB)
My Lords, I would like to raise two small points. The first relates to page 24, lines 37 and 38, which refer to,
“education, health and care provision” ,
and “other educational provision”. There is no definition of “education” and it could be interpreted as meaning academic education or education for life. Although the one may include the other, it is very important to know what we are talking about. I am inclined to think that there might be a case for introducing an amendment on Report to clarify exactly what this clause means.
Secondly, in Amendment 107, tabled by the noble Baroness, Lady Howarth, in which she would put in,
“arrangements to assist young people and parents in managing a personal budget should they choose one”,
there ought also to be a wider reference there to the skills that young people ought to be learning. Again, it depends rather on which definition of education we are using. If we are using a fairly narrow definition of it then I would include, at line 7 of page 25, a subsection referring to relationship skills, personal and social skills and another on understanding the role of families and the responsibilities of parenthood. I can only put those suggestions to the Committee but I would be grateful if the Minister could consider them in due course.
Lord Storey
My Lords, first, I make a general point. The notion or the policy of a local offer is hugely important as, for the first time, parents and families will know what is available and it will be clear, concise and jargon-free. I have sympathy with most of the amendments that have been tabled but if we read the code of conduct it makes it clear what should happen. What is the local offer? It says clearly in the code of conduct that it must include both local provision and provision outside that particular area, given what is available in other areas. It refers to how it has to be clear, comprehensive and accessible and to engaging parents, children and young people. Hallelujah! It says that it should be easy to understand, and so on. So when the Bill is linked to the code of conduct, many of our concerns are dealt with there. Some word changes in the code would perhaps help it in some way. However, I am very much reassured, since in the code “should” is often replaced by “must”.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Lord, Lord Low, for introducing his amendments, to which we have added our names. I speak in support of the amendments and of other noble Lords who have spoken in the debate.
We are all in our own way trying to address one of the fundamental concerns about the impact of Part 3 of the Bill. As a number of noble Lords have said, of course we welcome the principle of a published local offer—it has been widely welcomed by many in the sector—but our concern is what the local offer will mean in practice and what certainty of provision will underpin it. Like many other noble Lords, we feel that there is an urgent need to clarify this to avoid it becoming a wish list of the unobtainable.
In essence, there should be a legal duty on local authorities to provide what is set out in the local offer. As the noble Lord, Lord Low, made clear in moving the amendment, the solution could be relatively simple. Subsection (1) currently states that the local authority must publish information about the provision which it “expects to be available”; our amendment would simply switch that from “expects to be” to “is”. As I say, it is a simple solution. However, it is important because making that change will give those people who are trying to operate in this sector, under these rules, the reassurance that they need.
The document is intended to give parents, children and young people clear information about the local services and support available to them. Of course we welcome giving parents more information, but clarity and accountability are key to this information being effective. The local offer should be a document on which parents can rely and for which the local authority can be held accountable. However, how can we ensure accountability when the statement is one of expectation and ambition?
We also want to ensure minimum standards for the local offer, irrespective of where people live. We will return to that issue in a later debate today.
When this was discussed in the Commons the Minister said that the word “expects” reflects ambition rather than weakness. He said that the local offer will make it clear how parents and young people can complain or appeal if they are unhappy with any of the provisions set out in it so that the matter can be taken up with the service provider concerned. This seems a strange way to go about it. Why rely on an effective appeals system when we should be getting the provision right in the first place? This is particularly so when you consider how difficult it is for people to bring forward an appeal. You need to look only at the recent SEND tribunal statistics to realise some of the difficulties that are being experienced in this regard.
In addition, there is a worrying reliance on the detail of the arrangements to be prescribed in regulation and in the code of practice, which again makes it difficult to challenge. I say to the noble Lord, Lord Storey, that the draft code of practice repeats the get-out clause for local authorities of publishing what they expect to be available. So there is a flaw in the argument about where the information should be held and accessed.
As my noble friend Lady Wilkins said, there is an understandable concern across the sector that at a time of considerable pressure on local authority budgets, with children’s services already being cut back, parents will have no control over the services in the local offer being withdrawn in the future.
I have listened carefully to the issues around personal budgets raised by the noble Baroness, Lady Howarth, and I have a great deal of sympathy with the points that she raises. Our Amendment 180, which we will debate later in the Bill, will tackle these issues in a different way. We are trying to ensure that, rather than rushing into a new regime of personal budgets, with the potential difficulties that the noble Baroness identified, we take time to learn from the pathfinder experience before implementing that section of the Bill. We have to get this right.
We think these amendments are essential to making the local offer a meaningful, substantial service that would genuinely be welcomed by service users. I hope that the Minister will be prepared to reconsider his position on this basis.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, before I respond to the amendments in this group, I should like to say a few words about the intention of the local offer. The Lamb inquiry into special educational needs and parental confidence highlighted how,
“good, honest and open communication … underpinned by written, publicly available information”,
was key to the development of positive working relationships. It emphasised the need for parents to be able to access the information they need, when they need it and in ways that are convenient to them. The Bill responds to that need. The local offer, introduced by Clause 30, has two fundamental purposes: first, to provide clear, comprehensive and accessible information on provision available to support children and young people with SEN and their parents; and, secondly, to help make provision more responsive to local needs. Paragraph 5.1 of the draft SEN code of practice makes this crystal clear.
To be effective, the local offer must be a collaborative venture. We are requiring local authorities and schools, colleges and others providing services to work together in developing it through the duty in Clause 28. Crucially, we are requiring local authorities to involve local parents of children with SEN, and children and young people with SEN, in developing and reviewing the local offer. The local offer should enable local people to see what services are available, how they can be accessed, who provides them and where to go if things do not work out. It will also improve local accountability by making services more transparent and more responsive. I have to say that my discussions with pathfinders have been encouraging in this regard.
The noble Lord, Lord Low, raised the question of disabled children in the local offer. We had a full and helpful debate on disabled children without special educational needs and I gave an undertaking to consider the issue with help from noble Lords. I would be delighted to discuss this further with the noble Lord before Report.
Many noble Lords have spoken to the amendment and Amendment 102, both of which are in the names of the noble Lord, Lord Low, the noble Baronesses, Lady Hughes and Lady Jones, and my noble friend Lady Sharp. I would like to address both amendments together. I can assure noble Lords that the local offer will not be a speculative document or wish list—or, as the noble Lord, Lord Low, said, an opportunity to be “slippery”. It will not be about what the local authority would like to be available. It will be what the local authority expects will actually be available.
The local authority does not have control of all the services set out in the local offer and can therefore set out only what it expects to be available from these services. This will be based on consultation and collaboration with providers, including schools, post-16 institutions and health providers. If the local offer includes only the support that is currently available, families will not be informed about what provision the local authority expects to become available in the near future, possibly from new innovative practices. We want parents and young people to have confidence in the information in the local offer. We intend the local offer to be robust and effective, and I am extremely grateful to my noble friend Lord Storey for his positive remarks in this regard.
My noble friend Lady Brinton made a passionate case for a strong national framework for the local offer in order to provide constancy. The local offer regulations set out in chapter 5 of the draft code of practice provide that framework in some detail, and we will return to this point.
The noble Baroness, Lady Jones, talked about minimum standards and setting out duties for the provision of services in the local offer. We will return to these issues later and I will not speak about them now.
The noble Lord, Lord Low, made the point about provision outside a local authority’s area. I agree with him that the local offer should include details on such provision. Clause 30(1)(b) delivers this by requiring a local offer to include provision outside the local authority’s area for children for whom it is responsible.
I am not clear why the noble Baroness, Lady Jones, thinks that the detail being in the code and regulations makes it harder for parents to challenge it. The code is recognised as the Bible for the system—as my noble friend Lord Storey said—and having the information and guidance clearly explained in there will be more accessible to parents than the legal language of the Bill.
I thank the noble Baroness, Lady Wilkins, for tabling Amendment 104. The Government currently publish information on local authority expenditure on special educational needs services under Section 251 of the Apprenticeships, Skills, Children and Learning Act 2009 but, as the local offer will include services from a wide range of public, voluntary and private agencies across education, health and social care, it would mean a substantial additional bureaucratic burden for local authorities to collect this funding information. I hope noble Lords will agree that the focus of the local offer should be on the services provided and whether they are responsive to local need. We want that to be the focus of local authorities’ efforts, rather than gathering funding information from a range of other agencies.
Amendment 107—tabled by the noble Baronesses, Lady Howarth and Lady Massey, and my noble friend Lady Sharp—highlights the importance of ensuring that parents and young people who want support in managing a personal budget know where to find it. I can provide reassurance on the important issue of personal budgets—a key feature of our reforms. Clause 49(7) on personal budgets and Clause 36(9) on assessment would require local authorities to provide information, advice and support in relation to the management of direct payments and the education, health and care assessment plans. Clause 30(1) makes clear that local authorities must include in their local offer sources of information, advice and support for children and young people with SEN and their parents. The code of practice clarifies that this should include information on,
“the option of having a personal budget, who is eligible, how to ask for one and what information, advice and support is available for securing and managing a personal budget”.
The noble Baroness, Lady Howarth, asked about support for families in managing personal budgets. Personal budgets can include provision for support in managing them. This can, where needed, include personal assistance and key worker support. Some families in our pathfinder areas report their satisfaction with this aspect of personal budgets. I have a quote here: through a personal budget someone’s 11 year-old son,
“has been able to swim and have a PA to attend social activities … with his classmates, doing things that ordinary”,
11 year-olds “take for granted”. I had a conversation with a pathfinder on this issue, the help they were getting from a PA and how that had changed substantially the mother’s life.
The noble Lord, Lord Northbourne, made the point about including education for life. Of course, we expect the local offer to include information about educational provision in the broadest sense. The code specifies that this must include information about support in preparing for adulthood and other transitions, as well as the support provided by schools and the universal and specialist services.
I am grateful to the noble Lord, Lord Touhig, for tabling Amendment 110. The local offer covers a wide range of public, private and voluntary organisations. These will vary from area to area. Subjecting these agencies to a legal duty may inhibit their involvement when we want the local offer to be as comprehensive as possible and include the full range of services that can support children and young people with SEN and their parents. The local offer will improve accountability of local services in three key ways: first, children and young people with SEN and their parents will be directly involved in developing and reviewing it; secondly, it will make clear how and where they complain or appeal where they are unhappy with their support; and thirdly, regulations will require local authorities to publish comments from children and young people with SEN and their parents on the local offer, including comments on the quality of the provision available and its response to them. These requirements will give a strong impetus to local authorities and those providing support to respond to local needs. In view of this, I do not believe further duties are necessary.
I hope I have reassured noble Lords that these amendments are not necessary and that noble Lords feel able to withdraw them.
Lord Low of Dalston
My Lords, I am grateful to all those who have spoken and to the Minister for his comprehensive reply. This is the first of a number of groups of amendments that deal with the local offer. It is clear that the concept of the local offer has given rise to a good deal of concern on the part of parents and professionals. Noble Lords have already had a lot of points to make about it, and clearly there will be a lot more. I do not propose to say much more about it now, because there is a good deal of this debate still to go, and I imagine that we may well want to come back to something more focused on Report.
I just note one observation that the Minister made. I was glad to hear him say that he would be happy to meet us on the question of whether local offers could extend to disabled children as well as those with special educational needs. That is a welcome sign of movement on the part of the Government and holds out the hope that we may be able to get closer together on that issue. I very much welcome that and appreciate the Minister’s having said it. He will not find us at all unready to take up that offer.
In order that we get on to the debates which are to ensue on later groups, I beg leave to withdraw the amendment.
Lord Lucas
Lord Lucas
My Lords, I shall also speak to the other amendments in this group. I apologise to the Committee for the appalling drafting of Amendment 101A; it must be hard for anyone here to understand what I am about. All the amendments concern home education, and Amendment 101A seeks reassurance from the Minister that it is intended that the local offer should cover children in home education and not just children in conventional schooling.
Amendments 164A and 164B cover a part of the Bill where it seems that the wording reverses the current relationship between local authority and parent when it comes to education. Our education legislation is written so that the responsibility for educating children rests with the parent, and the local authority then has duties in support of that. The way in which the Bill is worded at the moment seems to place the duty on the local authority, with the parent in support. If that is the case, I hope to put the situation back to where it always has been and, to my mind, where it should be.
Amendments 152ZA and 157ZA are on a more optimistic note. In recent years, there has been a considerable improvement in relationships between local authorities and the home education community. We have escaped from the cloud cast by the Badman report and are entering a period where there is a spirit of co-operation and mutual understanding. It seems to me that we ought to look for a situation where a statement of special educational needs can encompass education otherwise, as it is known; that is, that the provision might be made otherwise than at school and as part of a home education package.
For that to happen, both the local authority and the home education parents would have to agree that this was a suitable package. There would have to be rapprochement between the two sides but, as I have said, this is becoming much more common. It therefore seems sensible that we should have an arrangement where it is possible for local authority and home-educating parents to co-operate in the interests of the child, rather than the current arrangement, with the rather strange Catch-22 situation where if a home-educating parent asks a local authority for help for a child with special educational needs, that is taken as proof that they are not able to provide properly for that child and that child must go straight to school. If the parent therefore does not ask for help, the local authority has no right, role or responsibility for making any provision whatsoever. That seems a dichotomy that does not act in the best interests of the children concerned.
Lord Nash
My Lords, I will speak to this group of amendments on home education tabled by my noble friend Lord Lucas. I would like to reassure him that, despite any possible minor imperfections in the drafting, we do know exactly what he is about and we are fully aware of the role that my noble friend plays in the All-Party Group on Home Education. I thank him for raising this important issue.
Noble Lords will be aware that parents have the right to educate their children at home and there is nothing in this Bill that infringes that right in any way. Nor does the Bill increase the responsibility of local authorities for home-educated children or increase their powers to interfere in the way that parents home educate.
Parents of children with special educational needs who home educate do so for different reasons and therefore will look for different levels and types of support from the state, if any. Some home educate because it would always be their choice to do so. Others, however, have begun home education out of desperation, as they have not been able to get the support that they feel that their child needs, or have been let down by the very services which should be supporting them. While I continue to support parents’ right to choose home education, I sincerely hope that our reforms will mean that parents no longer feel that they have to turn to home education as a last resort.
In broad terms, the Bill seeks to keep the same legal position for children with SEN who are home educated as now, but it does so within the important wider context of the Bill including a much greater focus on the views, wishes and feelings of parents as set out in Clause 19 and throughout Part 3 and the code of practice. Where a child or young person has an EHC assessment and the outcome of that assessment is that a plan is needed, the local authority is under a duty to prepare such a plan. If the local authority considers that home education is the right provision for the child or young person, that will be specified in the plan. It will then be under a duty to secure the special educational provision specified in the plan, with the home educator providing the core education provision. Likewise health commissioners will be under a duty to provide the health provision specified.
Amendments 152ZA and 157ZA seek to strengthen parents’ right to request that a plan specifies home education. They would mean that local authorities would have to treat such a request in the same way as a request for a particular school or institution. I think that there is a delicate balance to be struck here. Parents can already make representations for home education and will continue to be able to do so under Clause 38(2(b)(i). Moreover, the principles set out in Clause 19 mean that local authorities must give more weight to parents’ wishes, and as a result we may see local authorities naming home education more often. However, the choice to home educate is a choice to opt out of the state-supported system and is therefore not the same as the choice of a particular school or institution. Therefore these amendments would shift the balance too far.
Where a local authority makes a plan that does not specify home education, this does not prevent parents from home educating. In such circumstances the local authority can only absolve itself of its duty to secure SEN provision in the plan and ensure that the child’s SEN needs are met if it is satisfied that the parents’ provision is suitable for the child’s SEN. I know from the debate on Report in the other place that there are differences of view on this legal point, and these amendments aim to shift the balance of responsibilities between local authorities and parents. However, our view is that not only do local authorities have this duty but it is right that they do.
I should emphasise here that local authorities do not have draconian powers available to them to make this check. For instance, they have no right to enter the parental home to check the provision that is being made. They can enter the home only at the parents’ invitation. The check on the suitability of the parents’ provision could be made through the parents providing a description of that provision or by the parents passing on examples of the child’s work. Neither should they define “suitable” as necessarily being the same as the provisions specified in the plan.
Once a local authority has assured itself that the provision being made is suitable, it is no longer under a duty to make any provision. However, it retains the power to make provision in the home where this will help parents make suitable provision for their children and where parents are willing to receive this help. We encourage local authorities to make such provision and we have made this clear in the code. The same applies to the provisions to support home-educated children who have special educational needs but do not have a plan.
As to Amendment 101A, I can assure my noble friend that the local authority will include provision that would be available to home-educated children.
I hope that what I have said will reassure my noble friend that we continue to support parents’ right to home educate. There is nothing in the Bill that will threaten that right and the greater focus on parental wishes in the new system will mean a better deal for home educators. The code of practice includes a specific section on home education. Following a recent meeting with my noble friend, officials have undertaken to work with representatives of home educators to develop it further during the consultation period. On that basis I ask my noble friend to withdraw his amendments.
The Earl of Listowel
My Lords, I listened to the Minister’s response with particular interest as my sister home educated her children for some time.
Perhaps I may raise a tenuously related but important question. It arises from previous debates and is relevant to this clause: how will the local offer help parents to help children in their learning? It is good to see in the code the great pains that the Government are taking to ensure that parents and young people are consulted about what is on offer to them, but we know from all the evidence that family learning is tremendously important to children’s outcomes. In my experience of fostering, helping foster parents to gain the confidence to sit with their children on a regular basis over a period of time, and teaching them the techniques of paired reading with their children, is immensely beneficial for the literacy of those children. Anecdotally at least, it strengthens the relationships of the foster carers and the children.
I have been a follower and supporter of the charity Volunteer Reading Help—now Beanstalk—which works in more than 1,000 primary schools using a paired-reading technique. It works with vulnerable children, particularly; volunteers make a commitment of at least one year and turn up regularly to support the children, with the result that the children make great strides in their literacy.
My question to the Minister is whether it is quite clear how local authorities will offer help to parents to help their children in their learning. Might it be helpful to have guidance somewhere that this is a good approach to take? I am talking particularly about paired reading but it could help with numeracy. I confess to ignorance about the specifics of special educational needs but I appeal to those with expertise in the area to consider the models of good practice there already are of paired reading and parents being assisted to help their children with their numeracy.
In her recent report, Family Learning Works, my noble friend Lady Howarth highlighted that family learning can improve children’s educational outcomes by between 10% and 15%. Therefore, I should like to see this approach adopted as widely as possible in supporting families who have children with special educational needs.
Lord Nash
I think I can assure the noble Earl, Lord Listowel, that local authorities will be able to include provision such as paired-reading schemes in their local offers. We want to see extensive and helpful local offers that include the full range of provisions to support children and young people with SEN, including support for parents and carers. We are happy to look at the guidance and the code in more detail to ensure that that is absolutely clarified.
Lord Lucas
My Lords, I am very grateful to my noble friend for that reply. I will read it with care but I cannot, at first listening, think of anything else that I could possibly ask him for. As he is right to say, Clause 19 is a great advance in terms of responsiveness to parents. He is also right to say how immensely helpful his department has been. The all-party parliamentary group has been extraordinarily successful and most productive. It is the parliamentary group that I have attended that has made the most difference to the way that things work in the world. That has been largely due to the help that my noble friend’s department has given it and the interest it has taken in it. As he correctly said, we had a very productive meeting with officials. In particular, I thank Stephen Kingdom, who has been helpful before, but he is by no means alone in that. It has been a very rewarding experience to work with his department on this over the past few years. As I said, I am grateful for what my noble friend has said and I have pleasure in begging leave to withdraw my amendment.
Baroness Hughes of Stretford (Lab)
My Lords, the amendments in this group each refer to a particular aspect of the local offer proposed in Clause 30. I shall speak specifically to Amendments 103 and 109.
Amendment 103 seeks to ensure that the local offer includes information on independent special schools and colleges, outside of a local authority, which have been approved by the Secretary of State under Clause 41. We tabled this amendment before we had seen the more extended draft code of practice, because that requirement was not in the original draft. I acknowledge that it is in the current code of practice but I should be grateful if the Minister could clarify on the record what the words in the draft code mean in terms of the local offer.
Page 47 of the draft code lists the kinds of issues that have to be included in the local offer. It says that it has to include:
“Where to find the list of non-maintained special schools and independent schools catering wholly or mainly for children with SEN, and Independent Specialist Colleges”,
and so on which have been approved by the Secretary of State under Clause 41. However, I am not clear about this. If what is in the local offer is where to find the list, does that mean that parents can expect their child to have access to one of those schools if they satisfy the criteria for any particular school? What the code of practice does not say is that the special schools in other local authority areas are part of that individual local authority’s offer; it is simply about where to find the list. That is not clear enough in terms of specifying such provision as a possible element in the local offer of that local authority. The Minister should state the Government’s intentions and not say, “We will wait until the consultation has ended and then give our response”. That would be helpful to everyone—people outside as well as inside this Committee.
Baroness Howe of Idlicote (CB)
My Lords, we have heard a lot about the local offer and I suspect that we will hear a lot more. The local offer sets out in one place information about provisions that a local authority expects to be available for children and young people in their area with special educational needs, including those who do not have an education, health and care plan.
The two amendments that I have tabled are about ensuring that the local offer includes information about how schools and local authorities cater for disabled children in their area. This should include how schools and local authorities are satisfying their statutory obligations under the Equality Act 2010 to disabled pupils. That duty has already been mentioned by the noble Baroness, Lady Hughes, so she will understand how important it is to ensure that this duty is fully taken on and included in the Bill. If adopted, my amendments would ensure that duties owed to disabled pupils by the Equality Act were recognised and carried out by schools.
Amendment 106A proposes to insert at the end of line 6 on page 24,
“a summary of relevant information from the SEN information reports for schools in the local authority, as under section 65”.
This first amendment will ensure that the local offer includes the information required by Clause 65. Clause 65(3) is particularly relevant for disabled pupils, as it provides a requirement that the special educational needs information report, which has to be produced by all mainstream schools, includes information on,
“the arrangements for the admission of disabled persons as pupils”,
and,
“the steps taken to prevent disabled pupils from being treated less favourably than other pupils”.
“Mainstream schools” includes schools maintained by the local authority, academies and free schools. The report must also include the facilities provided to assist access to the school by disabled pupils and information about the accessibility plan that the school is required to publish.
The accessibility plan demonstrates how the school is increasing the access of disabled pupils to the school curriculum, improving the physical environment and improving information about the school for disabled pupils and their parents. The requirement to develop accessibility plans applies to all schools and Ofsted can look at the performance of these duties by schools.
Amendment 106B, the second of these amendments, proposes the insertion in Clause 30, at the end of line 36 on page 24, of the words,
“the strategy prepared by the local authority under paragraphs 1 and 2 of Schedule 10 to the Equality Act 2010 (accessibility strategy)”.
This amendment will ensure that the accessibility strategy prepared by the local authority will be included in the local offer. The accessibility strategy is a written document that specifies how maintained schools in the local authority area will increase disabled pupils’ access to the school curriculum, improve the physical environment for disabled pupils and improve information for them. Strategies must take into account the preferences expressed by pupils and their parents and should be reviewed regularly. Local authorities must have regard to the need to allocate adequate resources for the implementation of the strategy.
I very much hope that the Minister will understand and accept the importance of making clear to everyone just how vital the Equality Act is in ensuring that all the things that we want, and the Government want, are actually carried through. I hope that, under those circumstances, the Minister will feel able to accept these amendments, no doubt with a little refinement on their own part, and make them part of the Bill.
Baroness Brinton
My Lords, my noble friend Lady Sharp is not able to be in her place at the moment so, in her absence, I am speaking to the amendment in her name, Amendment 106. This is a probing amendment intended to obtain reassurances from Ministers that the entitlements of children and young people with SEN and their families will not be weakened by the passage of the Bill or by the revision of the statutory SEN code of practice.
The local offer, as currently described in Clause 30, imposes a significantly weaker and more narrowly defined duty on local authorities than the equivalent provision in the Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001, which remain in force. These regulations set out what information a local authority must provide, including, among other things, requirements to provide information about the action that the local authority is taking to promote high standards of education for children with SEN, and what action the local authority is taking to encourage schools in their area to share best practice in making provision for children with SEN. There must also be information about the general arrangements, including any plans, objectives and timescales for: monitoring the admission of children with SEN—whether or not they have a statement—to schools in their area; providing support to schools in the area with regard to making special educational provision for children with SEN; auditing, planning, monitoring and reviewing provision for children with SEN in their area; securing training, advice and support for staff working in their area with children with SEN; and securing training, advice and support for staff working in their area for children with SEN.
The information that I have just listed is important for parents, but it also incorporates a set of important principles in relation to education for pupils with SEN: the recognition that pupils with SEN need high standards of provision; that these standards should be regularly monitored and reviewed; that teachers need training, advice and support; and that schools should collaborate to share good practice.
Clause 30 merely provides that regulations may make provision about the information to be included in an authority’s local offer. It is important that the information listed in the 2001 regulations is collected and publicised by local authorities. The local offer should carry this forward into the new framework. It is not clear that this will be the case with the loose wording of the Bill. As far as I can see, there is nothing proposed in the code of conduct which would impose these duties on local authorities. Are the 2001 regulations going to be carried forward? What is the position? I would be grateful if the Minister could clarify the situation.
Lord Addington
I shall speak to my Amendment 108A. I should probably declare again the interests I have already mentioned. I declare another interest: I am a convert to the fact that assistive technology and computing generally can transform somebody’s life because I use assistive technology for everything I send out. Without voice operation, I cannot send an e-mail unless I take a week over it, and I cannot guarantee to send it properly. This is due to dyslexia. However, there are dozens of different types of assistive-technology solutions for dozens of different types of problems. You can now get a computer which bounces light off the user’s eyes to transfer the user around the screen. This was pure science fiction a few years ago. You have to run to keep up with the ideas and even the names of the technology at the moment.
The technology allows people to act independently. I could have stuck something at the end of another list about independence. I could have added a paragraph (d) to subsection (3) to provide that when you go into adult life you get a package to go with you. You probably already do. Access to work will give you some assistance, so there is a degree of consensus around this. Getting assistive technology early is very important because it allows people independence. I hope my noble friend will be able to give me some idea about how it is being taken on. What is being done to allow people to work like this? It is great to have somebody at your shoulder who assists you all the time. Unfortunately, you cannot take them home with you or guarantee that they will be with you when you are middle-aged, so learning to use other forms of assistance is vital. I hope that we will get a positive answer there.
The idea of the expression “assessment settings” is to find out how we will integrate the use of information technology into the examination system. The noble Lord, Lord Nash, has proved himself tough, durable but human by not being here. I have had some discussions with him on this subject. The Government seem interested in making sure that you can get into the examination system properly—I will return to this subject when we reach apprenticeships—but only if you make sure that the examination that is set online is compatible with the assistive technology that is used. If you get the wrong format, the two computing systems cannot talk to each other, so you cannot take the examination. In many parts of the examination system we go back to nurse—an amanuensis or extra time. It does not take a genius to figure out that those are two fairly blunt instruments. The first removes a great deal of responsibility from you, and the other is of limited utility. Extra time has attracted a great deal of attention because people say people are getting more of it. I have always wondered how much assistance extra time is if you do not know the answer. I suspect that 25% extra time to stare at a blank page does not help very much.
However, some idea of how that is progressing in the Government’s thinking would be extremely helpful at this time, as it all ties into the important standards of education—examinations. I look forward to what my noble friend will say about this and I hope that this is the start of a positive discourse on the subject.
Lord Ramsbotham (CB)
I shall speak to Amendment 106, to which I have added my name because of the word “monitors”, which I shall refer to on my Amendments 117 and 123. I shall also speak to my Amendment 115.
Regarding Amendment 115, I make no apology for continuing to major on speech, language and communication needs, despite the Minister’s welcome reassurance to me that they were climbing up the list of priorities. As I have said, bearing in mind that speech, language and communication needs are a growing 21st-century scourge, I would like to see them coupled with special educational needs in education, health and care plans, which are made for everyone—not just those with such needs. Amendment 115 is a probing amendment to ensure that children and young people with speech, language and communication needs who are not eligible for an EHC plan will not be overlooked by services available under local offers. In that connection, I am very glad to see that paragraph 11(a) of the schedule to the draft code of practice states that local offers must set out what speech language therapy provision is available. The Government should therefore also stipulate that local authorities’ local offers must be backed up by evidence-based research, on which I commend to the Government the Better Communications Research Programme, whose reports they published last year.
I move on to Amendment 117. Local offers, however well intentioned, are bound to end up as postcode lotteries if we are not careful—hence my call for a strategy. The Minister told the Committee that a strategy was in place for the period when a child was in school during its nought to 25 pathway, but it is not apparent for the periods before and after that, or indeed in linking those three periods together in what I call the child development strategy. I thank the noble Lord, Lord Nash, for his recent letter on teacher training but I am not wholly reassured. He referred to assessments and professional judgment but did not confirm whether child development is taught, compulsorily, during all teacher training to enable teachers to do what he describes in his letter. I would be grateful for confirmation that that is so.
The Better Communications Research Programme, which I mentioned, showed that too many children enter school without their speech, language and communication needs being satisfactorily addressed, or even identified. This is being addressed in the early years foundation stage. I have already drawn attention to the need for health visitors and others who carry out assessments to be trained by speech and language therapists to identify the indicators of speech, language and communication needs. In an overall strategy there would then be a “So what?”—remedial treatment designed to enable every child to engage with its teacher, and so with education, to the best of his or her ability. However, to ensure that this happens, local authorities must be held to account for their service provision, including their mechanisms for identifying needs. I believe that is best done by independent quality assurance by an inspector or regulator.
I have mentioned before the crucial role played by health and well-being boards, because they are the only organisations which are in touch with every individual from nought to 25. In this connection, I admit to being wary about Ofsted, which suggests that whatever method is selected for holding local authorities to account, it should preferably be independent of either education or health to ensure objective judgment. I give notice that when we come to Part 5 I shall be reflecting that the Children’s Commissioner might be ideally situated to take on this role.
Much has already been said about the need for information. The purpose of Amendment 123 is to ensure that a school’s special educational needs provision is consistent with local offers and that schools have to think about their provision of special educational needs as a whole. I hope that the amendment is designed also to ensure greater transparency for parents—an issue that has already been raised several times in this Committee. Therefore, I hope that the probing will result in due consideration being given to these proposals.
Lord Northbourne
I very much hope that I am not wasting the time of the Committee but I need to seek some guidance from the Minister. I am trying to put myself in the position of a local authority or the relevant responsible people in a local authority. The better the service they provide or purport to provide, the more people they will have to provide that service for because people will immigrate into their area. Does the money follow the quality of the service that is being supplied or is the pupil premium all they get? If the latter, the local authority has a very strong incentive to tone down its prospectus as far as possible because it does not want to attract more people into its area at the expense of the council tax payer, or indeed to overload the social services of that authority.
Lord Touhig
My Lords, I should like to say a few words about Amendment 109. I welcome Clause 30(3) because it outlines the provision to assist young people in preparation for adulthood. This preparation includes, among other things, assistance in finding employment. This is welcome but I am not sure that it goes far enough, and that is why I think that Amendment 109 would take us that step further.
The amendment would help to prepare young people to stay in work or to access any benefits that they need or are entitled to. The inclusion would also form part of a genuinely supported transition to adulthood. In addition to finding employment, many skills are involved in retaining it. Support in this area would surely aid young people in making the proper transition that the clause commendably strives to achieve. Similarly, in difficult economic times, with high youth unemployment, it is important that young people are aware of the benefits support they can get in order to progress into employment.
In the other place, the Minister referred to the code of practice. He said that,
“the local offer must include information about, for example, job coaches, who can support people who are already in employment, supported internships, apprenticeships, traineeships and support from employment agencies”.
He continued:
“The code also says that local authorities should provide some signposting about where young people can obtain advice and information about the financial support they can have not only when they seek employment, but after they are employed”.—[Official Report, Commons, Children and Families Bill Committee, 21/3/13; col. 435.]
Clearly, Ministers are aware of the vital importance of aiding young people to retain employment and access the benefits support that they need at appropriate times. This is necessary to ensure positive outcomes and real transitions for young people into adulthood.
In the letter that the noble Lord, Lord Nash, sent to noble Lords following the Second Reading, he said:
“Local authorities should ensure that early transition planning is in place for all young people with an Education, Health and Care Plan, focusing on positive outcomes and how to achieve them … When a young person is anticipated to be leaving education within two years, reviews of EHC Plans must plan for phased transition into the key life outcomes listed, with a greater emphasis on pathways to independent living, higher education and paid employment”.
These statements from Ministers are most welcome but remain a little vague. More specific skills training and support could be set out in the Bill, thereby placing within the legislation a real commitment properly to prepare young people for adulthood. That would be making considerable progress.
Baroness Northover
My Lords, the amendments in this group seek in different ways to put more detailed information in the Bill regarding the local offer. Let me deal with the issues that noble Lords have raised.
Amendment 103 of the noble Baroness, Lady Hughes, seeks to ensure that the local offer includes specialist provision made in the independent sector, in particular that made by institutions covered by Clause 41. I thank the noble Baroness for acknowledging that this issue is in fact covered in the draft code of practice. I think she said that.
Baroness Hughes of Stretford
Perhaps I may clarify for the noble Baroness that I acknowledge that there is a reference to the issue in the code of practice. However, as it requires the local offer only to contain information about where to see the list, that is not the same as including the provisions in the local offer. Can she clarify whether the code of practice does include them?
Baroness Northover
Indeed. We agree that such provision plays a valuable role in supporting children and young people with SEN. This is reflected in Clause 30 and the associated regulations. The noble Baroness said she recognised that the provisions were mentioned in the draft code of practice in terms of the information to be published, and she pushed for further details about that.
Schedule 1 of the regulations made under Clause 30 will require local authorities, as the noble Baroness noted, to publish information about the services they expect to be available for children and young people with special educational needs for whom they are responsible. I can assure her that this specifically includes provision by institutions approved under Clause 41 both within and outside its area. This is also made clear in chapter 5 of the draft code of practice. I hope that this provides the necessary clarification that she asked me for. Parents can request that independent and non-maintained schools be included in the list produced under Clause 41, and we make that clear in chapter 7 of the draft code at page 111. I hope that that reassures her on that point.
I turn to Amendment 106 from my noble friend Lady Sharp, which was also spoken to by my noble friend Lady Brinton. Schools play a vital part in making special educational provision and have a clear responsibility for ensuring that children with and without education, health and care plans receive appropriate and effective support. It is right that information relating to training, the sharing of good practice and local authority support is made available. We believe that this detail is best placed in the regulations and the SEN code of practice. We believe that Clause 30, the associated regulations and the guidance in the SEN code of practice provide a common framework for the local offer that is sufficiently robust and clear.
Schedule 1 of the local offer regulations states that local offers must include information on
“the special educational provision secured by the local authority in mainstream schools, mainstream post-16 institutions, pupil referral units and alternative provision Academies”,
and,
“how expertise in supporting children and young people with special educational needs is secured for teaching staff and others working with those children and young people”.
The draft SEN code of practice elaborates on this by making clear that the local offer should include information on,
“local arrangements for collaboration between institutions to support those with SEN (for example, cluster or partnership working between post-16 institutions or shared services between schools)”.
Noble Lords will know that there is a lot more detail in the code of practice, and I hope it will be of assistance to them.
Lord Addington
I thank my noble friend for that offer. However, before we do that, will she consider how the whole chain needs to be put together, including the examining bodies, providers, teachers and so on? This comes from experience of a breakdown in this area.
Baroness Northover
I am very happy for us to look right across the board. We need to focus on the individual child or young person and their experience throughout the system.
Coming to Amendment 109, we can assure the noble Baroness, Lady Hughes, and the noble Lord, Lord Touhig, that the term, “finding employment” in the Bill goes wider than providing support for young people in looking for jobs—important though that obviously is. As the noble Baroness, Lady Hughes, noted, the draft code of practice refers to the local offer including information about support available for job coaches, for example, who can support young people when they are working, and the financial support available, including accessing any benefits from the Department of Work and Pensions, both when looking for work and when employed.
Noble Lords pressed harder about support to stay in employment, which is extremely important. I assure them that we are well aware of that. Preparing for adulthood is an important element in the SEN reforms. Clause 30(2) requires local authorities to include in the local offer,
“provision to assist in preparing children and young people for adulthood and independent living”.
That term is defined in subsection (3) as,
“finding employment … obtaining accommodation … participation in society”.
Support for preparing for adulthood would include the kind of support that young people can expect when they are in employment. I hope that noble Lords find that reassuring as a very important point is being made there.
The noble Lord, Lord Ramsbotham, said that he was pressing the case again, rightly, on speech and language communication, and the provision for children and young people. No doubt we will continue to discuss this as it is a very important area. We recognise the importance of this, and the Government are supporting the work of the Communication Trust—I expect he knows that—including through a grant of £550,000 over two years to pilot an online speech, language and communication qualification for early years practitioners. That shows our commitment. We are also providing £1.5 million to the trust to identify gaps in provision and services, which will no doubt spark more amendments from the noble Lord, to promote and extend the What Works database of evidence-based interventions and to implement the reforms in Part 3. I hope that that is an indication of the seriousness with which we treat this.
Regulation 10 of Schedule 1 to the draft local offer regulations sets out the requirement to include:
“Speech and language and other therapies, including any criteria that must be satisfied before this provision can be provided”.
The noble Lord makes a very important point about how practitioners, from health visitors to those supporting children in school, need to work together. That is one of the reasons for the local offer: to try to bring all this together so that support for these children is delivered in a much more effective way.
The noble Lord, Lord Ramsbotham, asked about child development and is expecting a letter from my noble friend Lord Nash. I think that that is in train, if it has not already come out. If it has not come out, I am sure that it will speed along.
Lord Ramsbotham
Perhaps I should explain to the Minister that there has indeed been a reply from the noble Lord, Lord Nash. I was saying that I am not wholly reassured by what he said. In the letter, he talks about assessments and judgments, but there is no confirmation that child development is on the syllabus of every teacher training course. That is what I want to discover.
Baroness Northover
I will refer that to the department for it to look at further. The department will know, as do I, how determined the noble Lord is, so I am sure that it will look at that very seriously.
I remember the noble Lord, Lord Ramsbotham, dealing with Amendment 117. I assure him that Clause 27 already requires the local authority to keep its education and social care provision under review. I believe that we talked about that in earlier groups, but if I have not addressed the noble Lord’s questions adequately, or he wants more information, I am very happy to add to that. I am sure that we will be coming back to that in due course, by the looks of the groupings.
I hope that I have addressed most of the issues that noble Lords raised and that the noble Baroness will be happy to withdraw her amendment.
Baroness Hughes of Stretford
My Lords, I thank the Minister for her comprehensive response to the various and important points of detail that Members of the Committee raised in relation to Clause 30.
I will make two comments. First, I thank the Minister particularly for the clarification in respect of Amendment 103. That is now written into the record. Although she said that it is made clear on page 111 of the draft code of practice that parents can request a school in that sector, I think that Chapter 5 could be clearer. However, I am glad that she has put that on the record.
Secondly, the Minister said that Amendment 106B, in the name of the noble Baroness, Lady Howe of Idlicote, would be taken back and considered in the round in the context of the longer debate that we had about inclusion of all disabled children. That is welcome. The Equality and Human Rights Commission has raised some important points in the publication that most people will have received in the last day or so on aligning the Children and Families Bill with the reasonable adjustment duty in the Equality Act. I believe that was the main point raised by the noble Baroness, Lady Howe. That is another angle from which to come to this issue about the inclusion of disabled children, and we will consider it. I beg leave to withdraw the amendment.
Lord Low of Dalston
“( ) A local authority’s local offer shall be subject to inspection by Ofsted and the Care Quality Commission.”
Lord Low of Dalston
My Lords, the amendment is in my name and that of the noble Lord, Lord Ramsbotham. I shall speak also to Amendment 114, which is also in our two names and is in similar terms to Amendment 112 in the names of the noble Baronesses, Lady Hughes and Lady Jones.
The amendments are about introducing a degree of accountability, consistency and quality control into the local offer. These ideas have already been broached but the amendments seek to take the discussion further and perhaps anchor it even more firmly. I imagine that I am not alone in having received extensive briefings from concerned parents, practitioners and policy experts from organisations such as the Special Educational Consortium emphasising the importance of accountability in the new system.
The local offer will provide a great deal of information for children, young people and their families to enable them to know what is available and help them to exercise choice, but we cannot expect those the information is intended to benefit effectively to police the system by assuring its quality and by providing the necessary checks that like is being compared with like, and so on. Of course local offers will not all be the same. I understand that the Minister will not want to overprescribe the form and content of local offers, thus removing the scope for innovative development and responsiveness at the local level.
However, in the introduction of new systems such as this, it would be rash not to build any element of accountability or quality control into the process. The amendment therefore seeks to have both Ofsted and the Care Quality Commission involved in reviewing local offers to make sure that they provide an accurate picture of the services available to young people and their families so that they have access to accurate and quality information. This would ensure that the services provided by all providers were described and assessed on a comparable basis. Under current arrangements there is no parity between providers, which all have different audit and inspection arrangements, thereby making it difficult for young people and their families to make like-for-like comparisons of services included in the local offer.
I shall not say any more about this but leave it to the noble Lord, Lord Ramsbotham, to expand on the questions of accountability and inspection from all his vast experience of these matters, should he wish to do so. I am sure the Committee will be greatly benefitted if he does.
Amendment 114 is in similar terms to Amendment 112 in the names of the noble Baronesses, Lady Hughes and Lady Jones. The amendments seek to establish a minimum level of provision that local offers should contain. This should not be seen as overprescriptive but simply as providing a measure of reassurance that local offers will be, as I said in relation to Amendments 101 and 102, robust, accessible and effective, and, as the noble Baroness, Lady Brinton, said, consistent. Accountability must be at the heart of these reforms and these characteristics are a precondition of accountability. I hope the Minister will agree that local offers can still be responsive to local needs while meeting minimum standards and exhibiting the qualities of robustness, accessibility, effectiveness and consistency.
It is noteworthy that the Education Committee in another place, in its pre-legislative scrutiny of the Bill, took the view that the local offer needed strengthening. It said:
“The weight of evidence received by our Committee clearly supported minimum standards and we recommend that the Pathfinders be used to inform what should constitute minimum standards for Local Offers, particularly to address the provision that will need to be made available in schools to support pupils with low to moderate SEN without EHCPs. We also recommend the establishment of a national framework for Local Offers to ensure consistency, together with accountability measures by which they can be evaluated”.
It seems that that committee is very much on the same page as the noble Baroness, Lady Brinton, and me here.
In summary, these amendments are about ensuring two things: first, not only that parents and their children have access to information about the services available to them but also that there is a quality assurance mechanism in place that gives them a means of holding the local authority to account; and, secondly, that the local offer has some guaranteed substance that families can rely on. I beg to move.
Lord Ramsbotham
My Lords, I take up the offer made by my noble friend Lord Low to say a little a bit about the quality assurance I have in mind. Noble Lords may remember two extremely good safeguarding reports produced by the joint inspectorates involved in education, health and the criminal justice system, one in 1999 and the other in 2003. Those came about in the balmy days before the then Chancellor of the Exchequer, Mr Gordon Brown, axed what had been the Social Services Inspectorate and became the Commission for Social Care Inspection. The role of social care responsibility for children was then taken on by Ofsted and that of adult social care by the Care Quality Commission, which was instigated by the reforms that had to follow the axing of the Social Services Inspectorate. I have always regretted strongly that although this House was able to preserve Her Majesty’s Inspectorate of Prisons we were unable to preserve the Social Services Inspectorate. Frankly, we have been reaping the wind ever since.
My feeling about what we are talking about here is that we need something akin to the inspections for the safeguarding of children carried out by the joint inspectorates. They were led by someone with overall responsibility but able to call on the quality assurance addition of the inspectors of particular elements of the system. In this case, we have healthcare and education but also other things including the local offer, how that is made and so on. That is why I laid this false trail, as it were, to the Children’s Commissioner. I suggest to the Minister that in thinking about the quality of what we are proposing—and what the Government are very definitely interested in introducing—the assurance on that is carried out by those best able to do it working together, rather than giving it to any one person, because there are so many aspects to it. Quality assurance is absolutely essential and must be objective and consistent in every part of the country where local offers are handled.
Baroness Brinton
My Lords, I shall speak to Amendment 113 in my name and to Amendment 114 in the name of the noble Lord, Lord Low. Amendment 113 is a probing amendment to seek clarity from the Government on whether they are willing to provide a national or common framework to support the development of local offers so that parents can easily identify how provision varies. Parents of children with sensory impairments support proposals to improve transparency. This amendment was suggested to some of us by the National Deaf Children’s Society, RNIB and Sense. Some parents have reported that under the current arrangements:
“We have fallen across possible choices and information quite often by chance”.
Another parent said:
“I got an information pack when my child was diagnosed, but half of it wasn’t relevant to deaf children and it didn’t include information on the local deaf school”.
The three charities I mentioned support the concept of the local offer, and it is very important to the 75% of deaf children and 57% of children with sight loss who do not have a statement of SEN. The draft code of practice and regulations set out what information is to be included as part of the local offer and are very detailed. However, they do not specify how information should be broken down, nor do they set out a template that local authorities should work to that would make that comparison easier. In the absence of a common format, I am not sure that I can believe that the local offer will genuinely improve transparency over what help is available to these children. The local offer will be helpful only if local authorities are required to publish information about support available for different types of SEN. The needs of children with SEN are very different; for example, sensory needs are very different from the needs of autistic children. If the Government are not minded to create a set template so that parents can easily compare provision between different areas, I hope they will discuss it with the Local Government Association so that it can create a common template, because it would ease local government’s passage into the new arrangements if there is one framework to follow.
Moving to Amendment 114, the overall accountability framework around the Bill looks somewhat weak. Noble Lords will have gathered that from my previous amendment. There seems to be very little to stop a local authority publishing a weak local offer that is poorly understood or inaccessible. Despite the Bill frequently referring to improving accountability, the available rights of recourse for parents are limited. It is good that parents have the right to leave comments on the local offer and that they will be published, but there is no obligation on the local authority to address any of the concerns raised. Parents have the right to seek a judicial review against the local authority for failing to meet the requirements set out in the Bill, but this is not an option that many parents will be able or willing to pursue.
As well as being limited, the framework relies almost entirely on parents to respond and take action. Many parents are busy being parents. As one parent told Sense at an event held to discuss the Bill:
“We’re forever chasing, and it’s a headache. I often don’t have enough time to be making phonecalls and people don’t always come back to you so you’re just chasing and forever trying to sort everything out. You’ve got to think all the time—which are the bits worth fighting about?”.
Many parents do not know what they do not know. They are not in a position to assess whether the quality of a teacher is as good as it should be, nor do they have the time to research whether provision in other areas is better.
The Government’s White Paper Open Public Services stresses the importance of ensuring the quality of provision in any move to create diversity of services and providers. It states that the Government,
“will ensure that providers of individual services who receive public money … are licensed or registered by the appropriate regulator”.
A significant amount of funding is spent on supporting children with high needs. More than £500 million has been allocated by the Department for Education for this year. Many are concerned that there is relatively weak oversight of how this funding is spent and of whether it leads to improved outcomes. As well as leading to doubts about whether SEN provision is effective, it also raises questions about value for money and scrutiny of expenditure. There needs to be a stronger external accountability around the local offer. As has been already outlined by the noble Lords, Lord Ramsbotham and Lord Low, this could be taken up by Ofsted or the Children’s Commissioner.
In another place, the Parliamentary Under-Secretary of State for Children and Families stated that he was exploring with Ofsted how concerns about SEN provision could be covered under Ofsted’s existing programme for inspecting local authority school improvement functions. This statement was made in the spring of this year and, unfortunately, no update has been provided since. I am sure that there needs to be further certainty on the local offer and accountability before the Bill progresses to Report.
Baroness Hughes of Stretford
My Lords, I shall speak to Amendment 112, standing in my name; to Amendment 118, tabled by my noble friend Lady Wilkins, to which I have added my name; and to Amendment 114, tabled by the noble Lords, Lord Low and Lord Ramsbotham.
All the amendments reflect the strong view that the local offer should be strengthened to ensure that it is a statement that parents, children and young people can rely on and for which, particularly—the noble Lord, Lord Low, stressed this—the local authority can be held accountable. In order to do this, the amendments would create the minimum standards that have been called for both by the SEN sector and by the Education Select Committee.
It is right to acknowledge that in the lead up to the Bill arriving in this House, and, indeed, while it was in the other place, there was considerable debate across the sector as to whether minimum standards for the local offer were a good idea. People tried to evaluate the impact of having minimum standards or not. It is also fair to say that the broad and strong consensus now is that minimum standards are necessary to ensure reliability and accountability, otherwise there is a danger that we may end up with a postcode lottery of services. Again as the noble Lord, Lord Low, said, this is not about being prescriptive with local authorities but rather ensuring that no child or young person is left behind or suffers from a poorer service because of where they live.
The Government have said, and probably will say again, that they feel that minimum standards will create a race to the bottom, that they will constrain parents’ and young people’s ability to influence the local authority to increase service provision, and that that is to be avoided. The opposite is true. Equally one could argue that if you do not set a minimum there is a risk that councils will deliberately weaken their offer and undercut other councils to avoid families moving in because of resource constraints. There is a real risk that the quality of service locally will be entirely dependent on budgets and will be reduced.
Some organisations within the sector, for example, the RNIB, NDCS and Sense, have said that in the absence of any expectations on minimum standards, local authorities with better provision could reduce it in line with poorer neighbouring provision, and that too many services—I agree with this—are already at the bottom or below what parents should reasonably expect. The Government should move on this.
Baroness Eaton (Con)
My Lords, I seem to be a lone voice in the Committee today as I support Clause 30 in its current form. We should resist making any further amendment to the clause that would make the measures more prescriptive than they are already. To do so would needlessly hinder local provision for local issues that are not foreseeable from a national point of view. I therefore cannot support Amendment 118 and the others in the group which seek to introduce minimum standards for the local offer.
It is of concern to me that by introducing central prescription we would reduce the flexibility of local authorities to allow for local solutions. Government departments are unable to see the detail that is based on the daily contact and conversations with parents and young people and are unable to respond to individual and local needs. They cannot do that in the way that a local authority can. With a variance in funding for education, including SEN provision, across the nation’s local authorities such prescriptive measures could damage in a very real way the ability of local government to cater for the needs of local residents.
SEN provision varies between local authorities due to the nature and size of the local population, with greater needs for levels of service in some areas and much less requirement in others. By allowing local authorities to control their own provision, which these amendments would restrict, those authorities will be better able to provide those required specialist services. I always think of the example of a child with severe autism, who may require ballet lessons which would not be part of an offer. If a local authority is stretched to provide financial support for the things that it has to do, this removes its flexibility to deal with individuals on the basis of their need.
A serious concern regarding these amendments is that they would place duties on local authorities to secure a minimum level of health provision, when the body responsible for this is not the local authority but the National Health Service. It is entirely understandable that local authorities should be very wary of being responsible for provision over which they have no direct control. I agree with the references made earlier to the Minister’s view that too much prescription can severely limit flexibility and innovation in service provision.
We often heard negative comments today about local authorities’ provision. There is of course always room for improvement but with so many good quality provisions being made and so much work going on with parents and children in local authorities, our view should be that the aim of local authorities in this area is to provide a good service. We should not set expectations at a level that just will not be available but allow flexibility, and allow local authorities to create the right services for the people in their locality.
Baroness Howarth of Breckland
My Lords, the noble Baroness, Lady Eaton, is not alone in having some reservations about setting minimum standards as they may well stifle innovation and individual programmes. Perhaps more thought could be given between now and Report to how we ensure that local authorities provide a range of services. I know that the code says quite a lot about this. My great worry is that if you do not have something which can be inspected and monitored, and an expectation of a range of services, some local authorities might end up with very little indeed in their local offer—and it will be a postcode lottery. There is a real dilemma in how you maintain that flexibility yet ensure that families have something they can turn to which is monitored by either Ofsted or the Care Quality Commission. It would be quite useful to give some thought to this between now and Report so that we can come up with a better solution than a rigid framework, but with something ensuring that the services are there.
Baroness Wilkins
My Lords, belatedly, I will speak to Amendment 118 and in support of Amendments 112, 113 and 114. I will be brief because most of what I was to say has been said. The aim of Amendment 118 is to improve accountability around the local offer by requiring local authorities to meet basic expectations around provision for children with special educational needs. This issue is particularly acute, as we have heard, for children with low incidence special educational needs because local authorities are often ignorant of the support that these children need.
A number of organisations, including the National Deaf Children’s Society, the RNIB and Sense, are concerned that the Bill is extremely weak on overall accountability, particularly on the local offer, with a system that relies solely on the parents of children with sensory impairments—many of whom are, as we have heard, busy being parents. A system that relies on them policing it across all 152 local authorities is not likely to deliver the significant change that many of these children need here and now. Other noble Lords have also spoken on the need for increased accountability.
Baroness Walmsley (LD)
My Lords, I have a few additional comments to make in support of Amendment 113, to which I have added my name. I reassure the noble Baroness, Lady Eaton, that in our amendment we do not seek a one-size-fits-all approach as far as local authorities are concerned. Of course we understand, and hope, that the provision made will vary from area to area, depending on the needs of the local population. We are simply looking for some commonality in the way the offer is expressed. The advantage would be that it would not just be helpful to parents in enabling them to choose between one local authority or another if they were able to move from one to another; there would be two other benefits.
First, it would deter a local authority from publishing a weak offer, because it would be very obvious that it was a weak offer. The “very little indeed”, as expressed by the noble Baroness, Lady Howarth, would jump off the pages if there were some commonality in the way that offer was expressed. Secondly, it would help policymakers because this is a very new system. Undoubtedly the Government will wish to monitor how it is going and assess where it is going well and where it is going badly, and whether the regulations need to be tightened up at some point in the future. It would be very much easier to do that if there were a common way in which the local offer could be expressed; otherwise, I can see civil servants spending months digging into all the different local offers, expressed in different ways, in order to dig out that information.
Baroness Whitaker (Lab)
My Lords, briefly, I would like to record my support for all these amendments, for all the reasons given. It seems to me that the very welcome reforms of the local offer remain quite insubstantial if there are no minimum standards and if there is insufficient transparency and no inspection. I recall the Minister’s letter to those of us who spoke at Second Reading on this point. He said:
“Regulations and the SEN Code of Practice will provide a common framework for local offers”.
I am worried that a common framework is really not specific enough. The draft SEN guidance is silent on the real monitoring of inspections. Without a power in the Act to achieve these, I should like to ask the Minister how the regulations are going to do the job which we have all been asking for. What is going to be in them?
Baroness Morris of Yardley (Lab)
My Lords, I also support the gist of the amendments but I take the point made by the noble Baroness, Lady Eaton. I knew that local authorities would have genuine concerns. However, I really want to support the points made by the noble Baroness, Lady Howarth, because I thought that that was a good way forward.
My instinct is that there needs to be some monitoring or inspection, or some notion of a common format or minimum standards. I say that because, looking back, I find it difficult to think of a new service being introduced that has not had that infrastructure under it, at least to begin with. I am concerned about just plonking it out there in the system with no monitoring, no inspection and no minimum standards. I am not saying that local authorities will deliberately set out not to provide the service, but I think that the noble Baroness, Lady Eaton, would have to admit that in the present circumstances, when local authorities have really tough spending decisions to make, those who have no legal or regulatory protection might end up being at the end of the list when it comes to the decisions that local authorities take on expenditure. Therefore, the amendments would offer that protection.
With this new system, I think that the whole Bill could fall if parents did not quickly have confidence in the offer. That is my concern. This service is central and new. It is a new idea, and it has to retain the confidence of the people who use it. I think that there is an added complication, as has already been mentioned, that these are busy people who are already fighting other bits of the system. It is also not something that affects every citizen. This is a small and particular group of people. It has not got the voice of the nation behind it. It is not like “all our schools”, “all our universities” or “all our elderly care people”, it is a very small group of people who will have to fight the good fight. So my starting point is that I am not entirely confident that there is enough in the system at the moment to guarantee that it will grow into a strong part of special educational needs protection.
Lord Northbourne
My Lords, I should just like to follow up on that suggestion, as it fits in with what I was saying earlier. What is needed is a positive rather than a negative incentive to the local authority that wants to take on and do a good job with especially difficult cases. Would the Government consider the possibility of a variable pupil premium that could be larger for the children and young people who have real problems?
Lord Storey
I think we have heard some very wise words from a number of noble Lords. I was particularly taken with the comments of the noble Baroness, Lady Morris of Yardley, which I thought were spot on. However, my interpretation, or end result, is slightly different from hers.
I think that we are all trying to aim for the right result and that we are probably getting there. I have a number of fears, which were expressed by the noble Baroness, Lady Eaton. First, there must be some sort of quality assurance. We must be assured about what is happening in the local offer. In a sense the clue is in the title: it is a local offer, not a national offer, and that is really important, so I am not sure that wielding the inspection stick is the right quality assurance. I think that it has to be more of a partnership assurance. I fear that, as the noble Baroness, Lady Hughes, said, there would be not so much a race to the bottom as a race to the minimum. Many local authorities would be in that position.
I am not involved in the Local Government Association, which is there not always to save money—it prefers to spend money. However, I was very taken with its wise words. It said that it does not support the introduction of minimum standards for the local offer as,
“we are concerned that central prescription could reduce councils’ flexibility to allow for local solutions, based on a conversation with parents and young people, to respond to individual and local needs”.
How true that is. It also rightly says:
“SEN also varies from one local authority area to another because of the nature of the local population. There are higher levels of need in some areas, which allows the local authority to provide more specialist services than other areas, which have less need for that specialist service or have different needs”.
I am sure the Minister will listen carefully to what it says. I was quite taken with the comment of my noble friend Lady Brinton about having, if you like, a common template. She was right on that and was right to say that if the Government do not do it, someone else will. We have to draw together the strands because we all want the same thing. If we want the local offer to work, parents will have to have confidence in it, and it will have to have the quality that would provide that confidence.
Lord Ramsbotham
Perhaps I may respond to the noble Lord, Lord Storey. This is precisely what I was saying: the best inspections—and I am talking about the safeguarding reports—were not inspections carried out by one organisation; they were partnership inspections. I call them inspections because they were carried out by inspectorates but they were partnerships of all the people involved. The theme always was looking for the Government saying “what” and leaving the “how” to the local authorities.
The other benefit of having that kind of partnership looking at these matters is that you can identify good practice somewhere, and you can spread it in the hope that it becomes common practice everywhere.
Baroness Northover
My Lords, this has been a wide-ranging, constructive, informed and thoughtful debate. There has been a focus in these amendments on the accountability of the local offer; they consider the issue of inspection; and some of them seek to place in the Bill requirements for minimum standards in the local offer. The noble Lord, Lord Low, referred to accountability, consistency and quality, and those themes ran through the debate.
On Amendment 111, the noble Lords, Lord Low and Lord Ramsbotham, raised the issue of whether the local offer should be inspected by the Care Quality Commission and Ofsted. The noble Lord, Lord Ramsbotham, indicated that he was thinking widely around this area, as did other noble Lords. We certainly believe that accountability to parents and young people will be improved by the transparency which the local offer will bring, with the direct involvement of children and young people with SEN and their parents in shaping and reviewing it.
We recognise the importance of joint working between clinical commissioning groups and local authorities in developing the services in the local offer. We understand the views that have been expressed about the value of external inspection in relation to accountability, a major theme of the debate. I would point out that the democratic accountability that local authorities must face is one element of the issue. We have heard what noble Lords have said and I hope that they will be pleased that we have asked Ofsted to study and report on how best to identify best practice in preparing for SEN reforms—a fact picked up by the noble Baroness, Lady Morris—and to consider particularly whether there is a need for an inspection framework to drive improvements. Ofsted will link with the CQC in this work and I hope that noble Lords will welcome that. We will flag this debate to those organisations because it will help to focus minds and inform them.
I hope noble Lords will agree that, at this point, we should not place a requirement to inspect on either the CQC or Ofsted until we have the findings of that study. Once the survey is complete, I assure noble Lords that we will reflect upon its implications and on whether an inspection regime is necessary.
The noble Lord, Lord Low, and others are right to say that we would not wish to be over-prescriptive. There was a wide-ranging debate about the pros and cons of that approach. We want the local offer to encourage local authorities to be innovative, develop a sense of partnership with local children, young people and families, and reflect local need. I thank my noble friends Lady Eaton and Lord Storey, and the noble Baroness, Lady Howarth, for their understanding and support on that perspective. I certainly found very encouraging the reports that we heard the other day from the pathfinders on the different, imaginative approaches they take to this area. I hope that noble Lords who were not at that meeting will have an opportunity to hear more about that.
Some noble Lords referred to minimum standards. I can tell the noble Baroness, Lady Hughes, that indeed we feel that minimum standards could weaken parents’ and young people’s ability to influence their local authority and provide local accountability. As other noble Lords indicated, local authorities could simply point to the fact that they have met the minimum standard and that would be that. There could indeed be a race to the bottom, which we must avoid. I agree with the noble Baroness, Lady Morris, that we want a race to the top.
On Amendment 113, I recognise the good intentions of my noble friends Lady Brinton and Lady Walmsley in terms of the format of the local offer in the Bill. Again, I stress that transparency and accessibility are key themes of the local offer and we agree that a level of consistency will help with that. The local offer regulations and chapter 5 of the code of practice, in our view, provide a common framework to secure consistency. I know that noble Lords recognise that and debated whether it was really the case but we feel it provides a common framework so that families have the information they need to make comparisons between local authorities. Noble Lords may wish to look specifically at page 44 of the new code of practice, which lists what a local offer must include. However, we deliberately did not require a specific format for the local offer because we want to see local people shape each one, including the format it should take. We have already seen this happening on the ground, as illustrated in what the pathfinders said.
On the review that my noble friend Lady Brinton referred to, I point her to page 57 of the code of practice, which says:
“Local authorities must publish their response to those comments in the local offer alongside an explanation of what action they are taking to respond”.
That rather puts them on the spot in terms of criticisms made of them and how they deal with those. Bearing in mind that they are locally accountable to the electorate, it will obviously act as a pressure upon them.
There is clearly widespread agreement that the local offer is a major step forward. We welcome that and thank noble Lords for their emphasis of that. We hear what noble Lords said about how this is best delivered and the variation in approach to how it might be done. I hope that I have reassured the noble Lord and that he will be content at this stage to withdraw his amendment, noting the study that I referred to in my opening remarks.
Baroness Morris of Yardley
When does the Minister expect the study to be completed, so that we have a timeframe? For example, I am not sure whether it would be before or after Report.
Baroness Northover
It would be a more in-depth study than delivering it before Report would allow. We expect it to report in the spring. However, I am very happy to write to the noble Baroness with more particulars and to copy that to other noble Lords who participated in that issue. There is always a balance between trying to deliver something in the timetable of a Bill—as she will know only too well—and getting something thorough and right. As I say, I will write to her with further details about that.
Baroness Morris of Yardley
Can the noble Baroness reassure us also that if this legislative opportunity is lost but the report recommended some sort of framework, it would be possible to enact that quickly? I cannot remember or work out whether primary legislation would be needed for that. If it was required, we could end up waiting for years.
Baroness Northover
I understand that primary legislation would not be needed. We seem to be busy legislating all the time, but it could be done through secondary legislation.
Lord Low of Dalston
My Lords, I thank all noble Lords who have spoken in what has been a wide-ranging and thoughtful debate. It has certainly given me plenty of food for thought. I also thank the Minister for her response.
At the beginning of the debate we were going along quite nicely and there was a lot of agreement on four propositions: first, that the local offer is a statement of expectation, not provision; secondly, that the local offer is essentially a statement of information on education, health and social care provision; thirdly, that 25% of children and young people with a disability do not have a special educational need and therefore would not be able to access the local offer; and, finally, that the local offer is not enforceable. Therefore, while parents are given information about provision there is no requirement on the authority to make the provision.
Then the debate widened. I want to avoid saying that the rot set in with the noble Baroness, Lady Eaton, because, as I will make clear, the contributions from her, my noble Friend, Lady Howarth and the noble Baroness, Lady Morris, towards the end of the debate added a considerable element of richness and sophistication to the discussion, and we need to take them on board. The noble Baroness, Lady Eaton, was worried that there was an anti-local authority spirit in the amendments, and she and others were concerned that the thrust of the amendments was too prescriptive. I want to be clear that there was no intention on my part or anyone else’s to be anti-local authority or to manifest a down on those authorities. Anyone who is familiar with the educational work of local authorities, especially in the field of special education, knows the vast amount of good work that they do. I am very happy to put that on record.
On whether the amendments are prescriptive, I should say that this would not be the first time that there was guidance from the centre on the implementation of policy locally. The noble Baroness, Lady Morris, who I think has a background in local government—she was leaning to embrace the local authority perspective—got it absolutely right when she said that it would be too risky to dispense with guidance entirely when implementing a wholly new system of this kind. We have to strike the right balance as regards central guidance. The noble Lords behind these amendments had no intention of talking in terms of dictation. What we had in mind was essentially guidance—a framework within which local authorities can introduce their local offers. There is a balance to be struck and we need to get the balance right.
I very much respect the reservations that have been expressed. These amendments may not have got the balance quite right and I welcome the request for Ofsted to examine this issue, consider this debate and come up with proposals, which the Minister told us about. In this debate, we have identified the dimensions of a discussion which needs to be pursued further. Thanks to the contributions from the noble Baronesses, Lady Eaton and Lady Morris and my noble Friend Lady Howarth, we have the parameters within which we need to carve out a legislative formula that will enshrine the balance that we are seeking and do justice to the desire for local responsibility and the need, identified by most noble Lords who spoke, for some guidance which can be seen as helpful, especially when introducing new legislation such as this.
We have identified the parameters within which I hope it will be possible to identify a formula that we can live with and that will stick in the legislation for years to come. I hope that we will be able to have a discussion with Ministers and the department on these issues, basing ourselves on this debate which has identified the parameters of discussions within which we need to forge a legislative formula. I hope that we can pursue those discussions after today and come back with something that we can unite around on Report. With that, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, there is an error in Amendment 119. It should read, “Page 26, line 16, after the first ‘responsible’, insert ‘and children’”.
Lord Low of Dalston
Lord Low of Dalston
This is beginning to feel a bit like hard work. I shall speak also to my Amendment 126, which is in this group. I am not quite sure why it is in this group but it is, so I shall speak to it. Clause 33 provides that a local authority is not required to secure the education of a child or young person with special educational needs in a maintained nursery school, mainstream school or mainstream post-16 institution where it is incompatible with the provision of efficient education for others. This reproduces the wording of the current legislation relating to school education but is not present in the current learning difficulty assessment guidance that covers learners moving to and within post-16 provision. It has been put to me that subsection (2)(b) should be deleted to ensure that colleges and post-16 institutions continue to make the necessary adjustments to include disabled applicants. This includes making adjustments to provisions, criteria and practices, and the provision of auxiliary aids and services.
In the context of post-16 education, the retention of subsection (2)(b) could undermine students’ existing rights and protections under the Equality Act, and provide an excuse for colleges to exclude learners with learning difficulties and/or disabilities on the grounds of cost or inconvenience to other students. In other words, it would interpose a hurdle that does not exist at present in relation to post-16 education. Furthermore, there is an inconsistency in that those learners without an education, health and care plan cannot be refused a place on these grounds. The implication is that a disabled person with a plan potentially has fewer rights than one without. It is not quite clear why subsection (2)(b) is needed when the Equality Act is clear on the requirements around reasonable adjustments.
These arguments clearly have force so far as post-school education is concerned but, thinking about it, they have just as much force as regards school education. In any case, in a Bill which introduces a unified approach for all those aged nought to 25, it seems clear that the language should be consistent across the whole age range. It therefore seems only right to delete subsection (2)(b) altogether, which is what Amendment 123A would achieve.
The purpose of Amendment 126 is to protect a child or young person with a special educational need and ensure that they get the education and support best suited to them. The provision contained in Clause 34(9) would allow a special school, academy or free school to admit a child without a statutory assessment of their needs and without an education, health and care plan. Currently, any child who has special educational needs but who does not have a statement must be educated in a mainstream school. The change that Clause 34(9) would bring about undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as being the most appropriate placement, following a statutory assessment process, and where it is in line with the wishes of the parent.
The draft code of practice suggests that an individual professional, such as an educational psychologist, could provide a report to support a child’s admission to a special academy or free school. This could constitute a diminution in parents’ rights to express a preference for a particular school in the full knowledge of the nature of their child’s needs, as assessed by a range of professionals. Inclusion of this provision seems to devalue the assessment and planning process which sits at the heart of the Government’s reforms. It seems obvious, too, that any head teacher would want as much information as possible about a new child or young person with a special educational need to be sure that the school could meet their needs.
There is also concern that a placement agreed in this way without an assessment and a plan would provide parents and carers with no entitlement to an annual review or any right of appeal. This provision would also make it easier for those head teachers who are reluctant to accept a child or young person with a special educational need to try to persuade parents that their child would be better off in a special school, thus undermining the principle of inclusion we were talking about last week. Therefore, it seems clear that the process of admission of children and young people with special educational needs to special schools should continue to be based on assessment, as at present. It would be dangerous to dispense with that, as I think would be the result of Clause 34(9). I beg to move.
Baroness Jones of Whitchurch
My Lords, I shall speak to our Amendment 124 in this group and support the arguments which the noble Lord, Lord Low, has put forward in support of his amendment.
We began this debate about inclusion and access to mainstream education in Committee last week, but I am very pleased to have the opportunity to return to some of those issues. During that debate, the Minister sought to reassure us that duties were already in existence, including under the Equality Act 2010, to prevent discrimination against disabled people and that that addressed some of the issues about which we were concerned. However, I support the amendments that have been tabled by the noble Baroness, Lady Howe, because she has identified some of the remaining contradictions between the Equality Act and some of the duties that this Bill is spelling out. It is important that those issues are bottomed out, and I support her amendments.
We remain concerned that, by agreeing to this wording unamended, we will be introducing a get-out clause which would allow schools to duck out of their responsibilities to provide mainstream education when requested. As the noble Lord, Lord Low, pointed out, Clause 33 places a duty on local authorities to ensure that children and young people with an EHC plan are placed in mainstream education. There are two important caveats. The first is if a place is incompatible with the wishes of the child’s parents or the young person. Obviously we support that caveat. As we have said before, parental choice and the views of young people are crucial in identifying the best educational provision for a particular child.
It seems to us that the second caveat goes against the whole spirit and intent of the Bill. Clause 33(2)(b) provides that local authorities can opt out of providing mainstream education if it is incompatible with,
“the provision of efficient education for others”.
We feel that we should have moved on from that wording at this stage.
The wording raises questions about who defines what level of disruption is incompatible with efficient education. For example, could it be argued that any child with health issues in a school environment could potentially interfere with the efficient education of others? Or could any child whose educational needs required additional attention from a teacher arguably be taking the teacher’s time away from others, thereby affecting their education? How far are we going to apply this wording?
The Minister said that the Equality Act protects against discrimination, but is there not something rather worrying about defining disabled children’s rights by the level of inconvenience that they might cause? Therefore, our amendment would remove that reference and replace it with a much more positive commitment to meet the specific needs of children and young people.
Reference has been made to the draft code of conduct. It appears to me that it adds a further reason why a request for mainstream education could be refused, and that is the incompatibility with the efficient use of resources. As I understand it, this used to be a factor that schools could fall back on, basically arguing that it was too costly to educate children with SEN in mainstream schools. However, it was removed by the previous Government in 2001, so it now appears that we are going backwards, making it more difficult to access mainstream education.
We believe that ensuring that the needs and wishes of children, young people and their families ought to be the only justifiable basis on which they should be placed in a non-mainstream setting. We acknowledge that many mainstream schools still lack the capacity to provide a good education to children with certain learning difficulties and disabilities, but surely the solution is to address those failings in a structured and positive way within a given timetable, not to give those schools an opt-out. However, we have to accept that some schools are reluctant to admit children with special educational needs or to take the steps necessary to modify their facilities, particularly with the pressure of league tables uppermost in their minds. There is no doubt that some academies and free schools are seeking to operate more stringent admissions policies. This comes back to the issues raised by the Equality and Human Rights Commission about the alignment of the reasonable adjustment duty with the duties in the Bill. We need to make sure that they are properly aligned. Our concern is that the provisions in the Bill and the draft code of conduct give schools an excuse not to make any changes.
At Second Reading, this issue was addressed with some passion by several noble Lords, including the noble Baroness, Lady Grey-Thompson. We feel there is a need to address the failings in the Bill and the code in this respect. The Green Paper referred to creating a bias towards inclusion. If we are serious about that, we should remove Clause 33(2)(b). In his letter to Peers after Second Reading, the Minister referred to the fact that the Bill already provides for the wishes of children, young people and their parents to be taken into account and, of course, it does, but that misses the point if their wishes can be overridden by the needs of so-called efficient education for others or the efficient use of resources. I hope the Minister will take these issues seriously and look again at what we believe is increasingly backward-looking wording which goes so far against the spirit and intent of the Bill and that we can come back with a more positive form of words.
Baroness Howe of Idlicote
My Lords, I have three amendments in this group, two of them on equality rights. I shall start with Amendment 125, which is a probing amendment regarding a concern of the Association of Educational Psychologists. There are two more amendments later, but I want to deal with this amendment because in answering the Minister may be able to give reassurance.
Currently any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps ensure that children and young people are not inappropriately placed in special schools. The concern is that Clause 34(3) allows special academies, including free schools, to admit children or young people permanently without them having had their special educational needs statutorily assessed or an EHC plan having been put in place for them. This proposal seems to undermine the principle that a mainstream school must be able to make provision for all children without a statement or plan and for most children with a statement or plan.
Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice, such as a report from an educational psychologist, the concern is that there is no formal role for the local authority in this process. The worry is that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young persons with EHC plans, extremely difficult.
If this proposal went through, there would be a danger that mainstream special schools would be incentivised to persuade parents that their child would be better off in a special school just because they do not want them in their schools. This would take us back to the situation that existed before the Education Act 1981. There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this clause remains, I would question the point of mainstream places within a special school.
I fear that this proposal would result in medical labels determining whether a child secures a place in a special academy. If a special academy had been set up for a particular type of SEN—for example, SpLD or ASD/Asperger’s—would it result in an increase in the number of children being diagnosed with that condition? How can the Government ensure that there is a framework process so that inappropriate placements do not occur?
There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would educational psychologists’ views be protected and advocated? How would places be allocated within school year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they are making adequate progress?
This amendment has been tabled because it is hoped that the Minister will look again at the proposals and help to allay serious concerns in the SEN sector that this clause could result in children and young people being inappropriately placed in special schools. Ideally, the Association of Educational Psychologists would like to see the clause amended so that special academies are not able to admit children and young people without an EHC plan. I hope that when the Minister replies he will be able to dispel those doubts.
I turn now to Clause 33, which relates to children and young people with education, health and care plans, and Clause 34, which relates to children and young people with special educational needs but no education, health and care plans. Amendment 124A seeks to insert a new subsection in Clause 33 which states:
“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.
Amendment 126A seeks to insert a new subsection in Clause 34 which states:
“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.
The amendments are about ensuring that schools and local authorities are fully aware of the reasonable adjustments duty owed by schools to disabled pupils where the child has special educational needs. Some disabled pupils will have special educational needs and may be receiving support via school-based special educational needs provision or have an educational, health and care plan under the new arrangements. Just because a disabled pupil has special educational needs or an education, health and care plan, it does not take away a school’s duty to make reasonable adjustments for them.
The Earl of Listowel
Listening to noble Lords speaking to this string of amendments I am reminded of the challenges that our school workforce faces. The best teachers know that inclusion benefits the whole school. It is nevertheless challenging to try as far as possible to include every child in schools. I am reminded of the reputation of Finland, which has an inclusive school system, a high-status teaching profession and for many years has successfully recruited and retained high-calibre graduates who work seamlessly with health and other social services in that country.
This is a good opportunity to thank the Minister for his recent letter following our debate on child development training for teachers. He highlighted that, in these standards for teachers, there is a now a clear standard for child development. That is very welcome. I think of an experience a few years ago, working with a child psychotherapist on a paper. He provided support to staff groups in 10 schools in Brent, north London. He found that teachers and school staff who had this support—a group discussion of work in the school—on a regular basis were found, over a period of time, to have a lower rate of sickness absence because they had the opportunity to think about what they were doing, and were supported in that by a professional. He also offered the service to Westminster School, around the corner from here, of which he was a former pupil.
To make this happen, and make our schools as inclusive as possible, we need above all to recruit, retain and support the workforce that can do this. I am encouraged by what the Government have done in making it clear in the standards that child development is now very much expected to be well understood by our teaching workforce.
Baroness Sharp of Guildford (LD)
My Lords, my name is attached to Amendment 125. I was slightly surprised by this amendment and spent some time puzzling as to what the noble Baroness, Lady Howe, meant by it. I am not totally sure when my name got attached to it but it did and I therefore briefed myself accordingly. I think I am right that the noble Baroness previously argued for the deletion of Clause 34(9) rather than subsection (3). She argued against special academies and so forth. Subsection (3) says:
“The child or young person may be educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State”.
As I understand it, the noble Baroness did not argue about that subsection at all.
Nevertheless, I have a question about this area. I really saw this as a probing amendment because I cannot quite see how it is compatible with Clause 59, which deals with the local authority paying fees for special educational provision and makes it quite clear. My reading of Clause 34 is that it effectively says that no child may go to a special school except in very special circumstances and when everybody else agrees. Then Clause 59 makes it clear that a child without an EHC plan may be at a special school and paid for by a local authority. Yet it may be that that child, without an EHC plan and paid for by a local authority, needs to be assessed and sent to a special school. It strikes me that there is an incompatibility between those two.
Baroness Howe of Idlicote
To make it clear, I suggested that it was a probing amendment. As it had been tabled, I felt it was my duty to put the case given to me. I am sorry that the noble Baroness and I did not have time to discuss it.
Baroness Sharp of Guildford
I am sorry about that, too. While I am on my feet, I should say that I have a great deal of sympathy with the other amendments in this group. In particular, I sympathise with the arguments put forward by the noble Lord, Lord Low. In some ways, my preference would be for Amendment 124 because it seems to me that there are occasions when perhaps a special school is appropriate. The wording of Amendment 124 makes it absolutely clear that, when it is in the interests of,
“the specific needs of the child or young person”,
this might be the case. That is why I think that that amendment has some merit. I also very much support the amendments put forward by the noble Baroness, Lady Howe, concerning the Equality Act. I think that it is very important that we make it quite clear that this Bill in no sense overrides the responsibilities of local authorities under the Equality Act.
Lord Nash
I thank noble Lords for their amendments on inclusive provision. This is the second debate that we have had on the principle of inclusion. Today’s debate has focused on how decisions are made about where individual children and young people with EHC plans are taught. As I said in responding to our earlier debate, our aim with this Bill is to build on what has gone before and to create a new framework that improves both support for children and young people so that they achieve better outcomes and choice for parents and young people.
I will take Amendments 123A and 124, from the noble Lord, Lord Low, and the noble Baronesses, Lady Hughes and Lady Jones, together, as they both relate to the factors that local authorities should take into account when naming an education setting in a child or young person’s EHC plan, where no request has been made for a particular institution or the parent or young person’s request for one has not been met. The statutory provisions in the Bill are designed to ensure that a mainstream place is considered thoroughly and properly, recognising that, with the right support, children and young people with special educational needs are successfully supported in mainstream settings. They also recognise that there will be occasions where a child’s inclusion in a mainstream setting would significantly impact on the education of others, whose interests should also be safeguarded. This could occur, for example, when the extremely challenging and disruptive behaviour of a child or young person could not be managed. The provision for local authorities to consider the efficient education of others is important in this respect.
I understand concerns about this condition being used indiscriminately. Clause 33(3) and (4) guard against this. A local authority can only rely on it if there are no reasonable steps that could be taken to prevent the placement of the child or young person being incompatible with the efficient education of others. In section 7.11 of the draft SEN code of practice, we set out a number of examples of reasonable steps that can be taken to support inclusion. I believe that provision on meeting the specific needs of the child should not be the preserve of a single clause. It is at the heart of Part 3 and is reflected in Clause 19 on general principles, Clause 36 on assessments and EHC plans, Clause 42 on duties to secure provision in EHC plans and Clause 62 on the duty on schools to use their best endeavours to meet children’s needs.
Regarding the concern of the noble Lord, Lord Low, that the Bill gives FE colleges a get-out clause by allowing them to refuse entry to disabled students that they previously would have accepted in line with their duties under the Equality Act, I can assure noble Lords that the Equality Act 2010 will continue to apply in full to colleges, and that they must continue to make reasonable adjustments to support the participation of disabled young people. Nothing in this Bill overrides these very important duties imposed by the Equality Act.
We believe that the principle behind Clause 33 is the right one. Young people with EHC plans should have the right to be educated in a mainstream setting if that is what they want. This Bill, for the first time, gives young people the right to say where they want to study, by requesting that a particular school or college is named in their EHC plan.
I understand the motivation for Amendments 124A and 126A from the noble Baroness, Lady Howe. During our helpful debate on disabled children and young people last Wednesday, I made it clear that we had drawn attention to the Equality Act duties in the SEN code of practice, in Chapters 1 and 6, and referred to other relevant guidance on those duties. We recognise the importance of making appropriate links between SEN and the Equality Act duties in the code of practice, and in last Wednesday’s debate I undertook to look again at the scope for improving the draft code of practice on this. I hope that that reassures the noble Baroness, Lady Howe.
Lord Low of Dalston
My Lords, in welcoming the noble Baroness, Lady Sharp, to the Committee, now that she has been able to get away from her previous commitments, I offer her an apology. I had undertaken to make it clear when I moved Amendment 101, which she put her name to, that she wished her support for it to be placed on the record. I am afraid that I neglected to do that, so perhaps I may be permitted to rectify that omission now.
I thank all those who have spoken. This debate has enriched in detail the one we had about inclusion last week. It is clear from the interchange between the noble Baroness, Lady Sharp, and my noble friend Lady Howe that we have got our amendments in a bit of a tangle at one or two points, so we may have some work to do to sort them out. I am sure, however, that in the course of the further discussions which the Minister promised we should be able to do that. I thank the noble Baroness, Lady Sharp, for her support for my amendments. I agree with her that placement in a special school as provided for by Amendment 124, if it is in the interests of the child, makes sense—provided that that is the conclusion of a proper process of assessment. I hope that she would accept that.
We had two particularly valuable speeches from the noble Baroness, Lady Jones, and my noble friend Lady Howe. I wish that I had made them myself in moving the amendment. I must find out where they get their briefing from. However, those contributions have enriched the debate that we had last week in detail and will clearly feed into the further discussions that we are to have.
Finally, I thank the Minister for his careful exegesis of the law as it is enshrined in the Bill. This will provide a helpful background to the further discussions he has promised us, and which I am sure it will be important for us to have before Report. I conclude by hoping that this debate, like last week’s, will feed into those discussions but, with that, I beg leave to withdraw my amendment.
Baroness Northover
My Lords, this may be a convenient moment for the Committee to adjourn.
The Deputy Chairman of Committees
My Lords, the Committee stands adjourned.