Grand Committee
Children and Families Bill
(11 years, 1 month ago)
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The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
Clause 36: Assessment of education, health and care needs
Amendment 128A
Lord Patel
Lord Patel (CB)
My Lords, it is a pleasure to kick off today’s procedure rather than waiting all day and your turn not coming. It gives me an opportunity to begin and I will try not to be long. Perhaps I may put my amendment in the context of the debate that we have had. First, many times in Committee we have heard that this Bill is all about improving education for all children. I am encouraged by and I thank the noble Lord, Lord Nash, and the Government, for their amendment related to the education of children with cancers and other long-term diseases.
I also thank him for his response to the amendment in the names of my noble friend Lord Kennedy and myself about children with cancers, their education and alternative provision. Putting that into context with this amendment makes this amendment crucial to complete the circle. I say that because my amendment provides a simple insertion to Clause 36. It would ensure that “providers of alternative provision”, including hospital schools and medical pupil referral units, would be able to request an education, health and care—the so-called EHC—needs assessment for pupils who need it. It is necessary because the Bill states that the request for,
“an EHC needs assessment for a child or young person may be made to the authority by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution”.
I believe that what is lacking is that the providers of alternative provision should also be able to request an assessment.
Research carried out by charities such as CLIC Sargent has found that many parents did not think that their child’s educational needs were adequately assessed after their child’s initial diagnosis of their condition, including cancer. That adversely affected the education of the child. Alternative providers are well placed to request and feed into the needs assessment, as they have better knowledge of the child’s needs and have been involved in the child’s education over a period of time. Importantly, the limitations that, for example, the child with cancer still undergoing treatment might have can last several years.
Although some children with cancer go through treatment with minor disruption to their education, some find that they are disadvantaged for years as a result of aggressive and debilitating treatment and have huge gaps in their education. Their needs are very different. Some would be able to return to school with minimal extra provision, while others may require significant additional support. In some cases, that may be during their whole school career to enable them to catch up with their peers and to achieve their potential.
Often, awareness on the part of the school is key, which is not surprising considering that such children and young people are few in number. About 3,500 new cases of child cancers are diagnosed every year and a similar number of other children have other long-term diseases. Because of the variety of conditions, each school will not have the necessary experience. The issue is further exacerbated by the fact the child’s needs will often not be immediately apparent, but learning can still be affected in the longer term as a result of chronic fatigue, attention and concentration difficulties and even psychological and emotional problems. These issues can all directly impact on a child’s ability to learn.
There are, therefore, other benefits in involving hospital school staff and other professionals such as clinical nurse specialists in the process, as they are much more likely to have specialist knowledge about the impact of the child’s cancer and the support required. The amendment has the support of the National Association of Hospital and Home Teaching, a professional association for teachers and staff in the UK who work with children and young people whose medical needs prevent them from attending school.
The Minister has been very considerate in the amendments we debated before, but this amendment is the one missing notch that will help the education of children not just with cancers but with other long-term diseases. It would recognise the important role of alternative providers of education, working in a co-operative way with schools, parents and local authorities. Furthermore, including them in the EHC planning of these children values them as teachers. I hope the noble Lord, Lord Nash, will be sympathetic to the amendment. I am not seeking for this to be in the Bill—although I do not see why not—but I would be content if the guidance could be strengthened. I beg to move.
Baroness Jones of Whitchurch (Lab)
My Lords, I wish to speak to Amendments 129, 131, 133, 136, 139, 140, 141 and 142 standing in my name. These amendments focus on the mechanics of the process for determining education, health and care needs, the rights of appeal and the support for families which need to be factored in during the assessment process.
First, Amendment 131 specifies that, when making a decision as to whether special educational provision should be made for a child or young person, the local authority should have,
“regard to the competencies and needs of the child or young person’s parents and immediate family”.
This whole-family approach is an essential feature of the Bill. It should place the child’s or young person’s family at the heart of the assessment process. This is important in informing the provision to be specified in an EHC plan and would provide a much more rounded and personalised programme of support. This is consistent with our approach to previous parts of the Bill which sought to involve families more in the process. I know, from discussions we have had about young carers, that the Minister is sympathetic to this approach.
It is important that family life and home life are considered as part of a support package. Families are key to the well-being of children and young people with special educational needs and disabilities and to ensuring that they have every help to achieve their potential. The draft code of practice is very light on the scope to include families in assessments. The emphasis is on parental involvement in discussions and decisions, which is fine, but we are making a different point: families do not just need to be consulted; their own needs for help and support also need to be assessed. This whole-family approach is a fundamental principle which should thread through the clauses and be spelled out in the Bill. I hope noble Lords will support this amendment.
Amendments 129, 140, 141 and 142 deal with timescales in decision-making. Clause 36 specifies that parents, young people or educational establishments can request an EHC assessment. Our amendments would add a six-week time limit for responding to such requests. We feel that this is a reasonable timeframe, given that such requests would not be made unless there was a view that a child’s education was suffering in some way, so early intervention and action for the sake of the child are obviously important at that point.
We are aware that this requirement is included in the draft code of practice, but we feel that these rights are so fundamental that they should be spelt out clearly in the Bill. We feel that clear timescales would give added reassurance to parents and children alike, and would ensure that local authorities had clear and responsive processes in place to comply with the Act from its commencement, which would make these timescales a reality.
Amendments 133 and 136 deal with the right of appeal. As it stands, Clause 36(5) states that where a decision is taken by a local authority that no special education provision will be made, the local authority must notify the child’s parent or the young person of the reasons for that decision. So far so good, but our amendment would go one step further and ensure that parents are informed of their right to take the decision to appeal as a matter of course. This matter is covered in the code of practice, but we feel that it is better placed as an absolute right in the Bill.
We would go one stage further and argue that all appeal rights should be brought together as one single seamless set of rights spelt out in the Bill. We have separate amendments in a later group that address that point. We believe that a robust appeals process will ultimately be a guarantor of quality and will help to make the EHC system a success. I hope noble Lords will listen carefully to the points that I have made and will feel able to support the amendments.
Lord Lingfield (Con)
My Lords, I, too, have amendments in this group, to which I will speak briefly. In a similar way to the amendment of the noble Baroness, Lady Jones, to which she has just spoken, my first amendment, which is to Clause 36(5), seeks to place in the Bill a specified time limit for a local authority to act. In this case, it is to notify a parent or young person that the authority has determined that special education provision is not necessary.
Although the Bill does provide in Clause 36(11)(c) the regulations to be made concerning the giving of notice, for reasons of transparency it is important that this should be placed here in primary legislation. It is important to realise that the suggested time limit of 15 days reflects the current practice under existing legislation. Such transparency of time limits is important for parents and ought to be in the Bill, in order that they are informed promptly if a local authority determines that special education provision is not necessary, so that parents can, without delay, decide on any processes of appeal that they may wish to follow.
My second amendment, to Clause 36(11), strengthens the wording from “the regulations may make” to “regulations shall make”, so that we can be absolutely clear that regulations will be produced to this end.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I speak to this group of amendments on assessment tabled by the noble Baronesses, Lady Hughes and Lady Jones, the noble Lord, Lord Patel, and my noble friend Lord Lingfield. Before I do so, I should say that my noble friend Lady Northover has had a bereavement and my noble friend Lord Attlee will be standing in for her at very short notice on a couple of the groups this afternoon.
The overarching theme of this group is clarity and timeliness in communications. Getting this right is absolutely vital in creating a system where children, families and young people feel that they are being treated fairly. I thank noble Lords for the opportunity to discuss this matter.
On Amendment 128A, tabled by the noble Lord, Lord Patel, it is a key part of the reforms that anybody working with a child or young person who thinks that they may need an EHC plan can refer them to the local authority. This includes providers of alternative provision, so that a child or young person’s needs can be met. I reassure the noble Lord that Clause 23 will enable providers of alternative provision, and anyone else working with children and young people, to make a referral. The local authority must then determine whether an EHC assessment is necessary, as it would following a request under Clause 36.
Baroness Jones of Whitchurch
I am very grateful to the Minister for accepting one of our amendments. That is progress. However, I want to press the Minister on Amendment 131. I think I heard the Minister saying that, yes, of course the needs of families would be considered, but only if it was a social care issue. He referred to another piece of legislation. I have two points about that.
First, I would have thought that it made sense to bring everything into this one piece of legislation, rather than to refer people to other outstanding legislation that might apply, and I thought this was what we were aiming to do. Furthermore, I question whether saying that the needs of the family should be considered only when it is a social care issue is the right way to go about this. I thought that the idea of the Bill was to look at education, health and social care in the round, and I would have thought that the families’ needs and capabilities should be looked at in all three aspects of that, to reflect the way that they are going to impinge on the facilities provided for the child. I query whether this should be limited to social care.
Lord Patel
My Lords, I thank the noble Lord for his comments on my amendment. I did not think that the earlier provisions he referred to made it clear that alternative providers of education could initiate an EHC plan, but if his reassurances confirm that, then I am content. I will, however, read exactly what he said and look at the clauses again. I felt the earlier clauses did not clarify that, which is why I tabled the amendment.
Lord Touhig)
Lord Touhig (Lab)
My Lords, Amendment 137 is tabled in my name and those of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch, and the noble Lord, Lord Low of Dalston. I shall speak also to Amendments 145, 165, 173 and 175 in this group. Amendments 137, 145, 165 and 173 seek to amend various clauses, including Clause 36, “Assessment of education, health and care needs”; Clause 37, “Education, health and care plans”; Clause 44, “Reviews and Re-assessments”; and Clause 45, “Ceasing to maintain an EHC plan”. All these clauses refer to a local authority “having regard” to a young person’s age when making a determination. Examples include the review of a plan or the decision to cease to support a plan. Similar amendments to these were tabled in the other place seeking to replace the reference to age with a reference to having regard to “educational outcomes”, but these amendments go further and would simply remove the references to age altogether. This is something that I am sure colleagues in the Committee know that the sector is much exercised about. These amendments seek to ensure that children or young people with education, health and care plans are supported to achieve qualifications similar to other children and young people regardless of their age, so long as they are under 25.
The provisions as currently outlined are restrictive and there is a lot more that should be taken into account by local authorities when deciding whether a young person needs a plan or remains in need of one. Many young people have specific circumstances such as spending periods of time not in education or training, the reasons already discussed in relation to previous amendments, or they may lag behind because of their specific learning difficulties. It is therefore essential that decisions should be based primarily on educational outcomes rather than a young person’s age.
These are probing amendments, and removing the reference to age is not an argument for support to go on indefinitely. Indeed, I think that the age of 25 is a sensible and proper target, but it is also wrong that age should be the overriding factor that is considered by local authorities, as the clauses currently suggest. The Minister in the other place agreed that age should not be the only factor considered when determinations are made, but he did say that the Government,
“want the clause to prompt local authorities, once a young person is aged over 18 … to take a thorough look at whether outcomes have been achieved and the young person has made a successful transition to adulthood”,
and went on to say that:
“The relevant regulation in the draft plan assessment regulations sets out that, when undertaking reviews, local authorities must consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan”.—[Official Report, Commons, Children and Families Public Bill Committee, 16/4/13; col. 562.]
However, Clause 45(3) already requires a local authority,
“to have regard to whether the educational outcomes specified in the plan have been achieved”,
when it is considering whether to cease maintaining a plan. I therefore argue that the emphasis currently placed on age in the legislation is a complicating factor, causing entirely unnecessary ambiguity and potentially undermining the attainment of young people.
For 20 years I served as a councillor in a local authority and I know that colleagues on all sides of the Committee have also served at different times. I can tell the Minister that, from that experience and knowledge, the legislation as drafted will allow cash-strapped councils to drive a coach and horses through it—and they will certainly do so. It is a local council’s great escape and this will rival the film “The Great Escape” if we are not careful. Surely we do not want that to happen. I fear that the emphasis on age will work against what we are seeking to do in the Bill as a whole.
I turn to Amendment 175 tabled in the name of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch. Clause 46 states that:
“A local authority may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person attains the age of 25”.
As with previous clauses and amendments that we have already discussed, there is a concern that too much emphasis is again being placed on age as opposed to the educational outcomes of a young person. There is serious concern that such references to age could lead to local authorities cutting support part way through apprenticeships or other training courses. As I have stated previously, while support cannot continue indefinitely and 25 is a good cut-off point, we have to be careful about using age as a determining factor.
I welcome the fact that apprenticeships are now included in the Bill, and we are all grateful to the Government for listening to the representations made by noble Lords on all sides. However, age or the academic year should not be the only factor. The overwhelming factor should be the educational outcome for the young person. I am pleased that the Government, following an undertaking given by the Minister in the other place, have looked at this and have included the objectives of this amendment in the regulations. I thank the Government for listening because it leads to good and sensible dialogue and we then make better law than would otherwise be the case. In those circumstances, I beg to move.
The Deputy Chairman of Committees
My Lords, if Amendment 137 is agreed, I cannot call Amendment 138 by reason of pre-emption.
Baroness Sharp of Guildford (LD)
My Lords, I shall speak to Amendments 138, 146, 166, 174, 205AA and 205AB, which are all in my name and in this group.
Amendments 138, 146, 166 and 174 pick up the issue spoken about by the noble Lord, Lord Touhig; namely, they are about age and the wording that one sees in, for example, Clause 36(10). Rather than eliminating Clause 36(10), we seek to replace,
“have regard to his or her age”,
with,
“ensure that he or she will have sufficient time and support in education to make a successful transition to adulthood”.
There is in fact a slight mistake in the Marshalled List, which reads “transfer” rather than “transition”. The amendments have the support of the Association of Colleges, Ambitious about Autism and the Association of National Specialist Colleges, Natspec.
The view of those organisations, and my view, is that the Bill genuinely wants to ensure that young people with special educational needs have all the opportunities that they need to get the best out of education. The publicity around it has made much of the nought-to-25 system that is being introduced. It has also made much of the need for personalisation, which the amendments reflect. The aim of the amendments is therefore to ensure that the individual needs of the young person are recognised through the planning process, and that decisions about continuing their learning are made on the basis of need rather than an artificial link to their age.
One of the points mentioned by the noble Lord, Lord Touhig, is that there has been something of a tendency to think that, because the ages 18 and 25 are mentioned, these are the appropriate points rather than anywhere between those two ages. We are concerned that parents will feel that they have to battle to get a place beyond 18 in order that their son or daughter may stay until they are 25, setting up perhaps inappropriate expectations that they will continue through to 25 when it might be more appropriate for them to move into looking after themselves at an earlier age.
There are many reasons why a young person with special educational needs might need to be in education beyond the age of 18. Their learning difficulty may mean that they take longer to learn, practise and consolidate their skills. They may need additional time to become more autonomous learners, moving away from a situation where support is very hands-on to support that promotes their independence. They may need to learn how to use technology that can support this autonomy. Young people with special educational needs often mature later than their peers, and it is not until they move into a more adult environment that they really make a step towards more effective learning and taking on greater responsibility.
They may acquire the information and understanding to make informed choices about their future only once they have moved beyond school. Take, for example, the case of Chris, who has Asperger’s syndrome and major communication issues. He switched to college at the age of 16. In supported learning at college, Chris gained the confidence and skills required to progress into mainstream education. He has completed the bronze Duke of Edinburgh award, which he started when he first joined the college. He also started, in supported learning, on a next steps course for two years, progressed to a level 1 foundation course in IT, has steadily worked his way through level 2 and level 3 and is now completing his UCAS statement, with the aim of going to university next September.
Time spent to ensure that young people are well prepared to move into adult life pays dividends for them, their families and, ultimately, for the public purse. The National Audit Office report, Oversight of Special Education for Young People Aged 16-25, which was published in November 2011, stated:
“Equipping a young person with the skills to live in semi-independent rather than fully supported housing could, in addition to quality-of-life improvements, reduce these lifetime support costs by around £1 million. Supporting one person with a learning disability into employment could, in addition to improving their independence and self-esteem, reduce lifetime costs to the public purse by around £170,000 and increase the person’s income by between 55 and 95 per cent. If properly focused and effective, therefore, investment in special education should provide long-term returns”.
I cite the example of Shaun. Shaun first studied on an ACE course, which is a transition programme, at college. He had very low self-confidence and complained about being bullied. Although matters were resolved, Shaun requested a move to another college. Shaun started off very quietly at the new college, but gradually built up his confidence and became more sociable and responsible through the year. After completing his year on the ACE course, he was confident enough to join a mainstream course. He then completed an entry award in motor vehicles, went straight into full-time employment in motor vehicles and is now self-supporting.
This set of amendments ensures that local authorities and others taking, or helping to take, decisions on behalf of those young people will focus on outcomes that support the transition to adulthood—the point made by the noble Lord, Lord Touhig. There is much evidence to show that a successful outcome is linked to an effective learning programme geared to the needs of the young person, not artificially linked to age. I believe that that is the basic intention behind the Bill and, in that respect, this set of amendments is wholly in line with it. I very much hope that the Minister will be sympathetic to them.
Amendments 205AA and 205AB relate to Clause 66, which enables the Secretary of State to collect and publish information on children and young people with special educational needs who are under the age of 19. The amendments would extend that provision to the age of 25. Once again, it is a question of recognising that many young people with special educational needs need help and support through to 25. If the Government are genuine in their intention to create a comprehensive nought-to-25 system, it must include arrangements to monitor the outcomes for 19 to 25 year-olds. Indeed, the success or otherwise of the Government’s policies in this area will ultimately be accurately and appropriately measured only in the education, employment and independent living achieved by young people in that age group.
Officials have suggested that the reluctance to include 19 to 25 year-olds is driven by a desire not to increase administrative burdens on colleges, which is a particular policy concern of the Department for Business, Innovation and Skills. However, the Association of Colleges, which has asked me to table the amendments, has stated its willingness for the age range to be extended. It is not clear that the extension would necessitate any new data collection, as it asks only that colleges report on existing data collected under the individualised learning record.
Baroness Cumberlege (Con)
My Lords, I have three amendments in this group. As this is the first time that I have taken part in Committee, although I took part on Second Reading, I have been told that I should declare my interests, which are in the Lords register. In particular, this afternoon, I should like to declare my non-pecuniary interest as the chairman of the trustees of the Chailey Heritage Foundation. The foundation is a non-maintained special independent school with a registered children’s home. It works in partnership with a clinical facility, run by the NHS on the same site, and it has just launched a transition service for 19 to 25 year-olds. Some of these young people will continue from Chailey and others will come from a much wider area. This is the group to which my amendment refers.
Seeing is worth a thousand words, so I am particularly grateful to my noble friend who, during the very precious Recess, came to meet the children, young people and staff at the foundation. His visit had a profound effect on those he met, and I think it is fair to say—I hope the Minister will agree—that the occasion was of mutual benefit. My noble friend met some very severely disabled young people. I was interested in the examples given by the noble Baroness, Lady Sharp. The young people at Chailey are not of that sort at all: they are much more severely disabled. However, they do well at school, within the limits of their disabilities; some have 15 or more medications a day and none of them can walk or power their wheelchair unaided. Our ambition for these young people is that, having had a very worthwhile, stimulating education, which Ofsted says is outstanding—something that we are very pleased about—they should then benefit from this education.
They have some understanding but very limited, or no, speech and have learnt to communicate through different means, often using sophisticated modern technology. They have acquired some knowledge of how to operate in society. We believe that they should participate in their own lives and not be consigned to a wasted life in a nursing or residential home. Despite their very complex needs, we have plans for four of our young people to move into assisted living and we are seeking some sort of employment for them, although we realise that it will be very limited. The noble Baroness, Lady Sharp, mentioned the National Audit Office review. I agree that saving money in the long term depends on the initial education of these young people. Semi-independent, rather than fully supported, housing can save considerable money in the long term.
I am grateful to the noble Lords, Lord Patel and Lord Low, and noble Baronesses, Lady Jones and Lady Hughes, for supporting Amendments 170, 171 and 173. I was hoping to see the name of the noble Lord, Lord Nash, on these amendments when we looked at today’s Marshalled List, but that may come in time. The amendments are very similar to others on the Marshalled List this afternoon. We all wish to see education, health and care plans continue, where appropriate, to the age of 25. I was encouraged by the follow-up letter, written by my noble friend after Second Reading, in which he recognised that some people with special educational needs require more time to complete their education beyond the age of 18: as we all know, they generally learn more slowly than other young people. Having been a Minister, I appreciate the Government’s concern about legislating.
We understand that there could be an expectation that every young person with SEN would have an entitlement to education up to the age of 25, regardless of whether they were ready to make or had already made a successful transition into adult life. Those of us who have brought up children, or worked with children and young people, know that our task is not complete by 19. The years between 19 and 25 are also very formative; it is a time of experimentation, finding limits and testing boundaries. We do not expect a 19 year-old to settle down into adult life or decide where they are going to live for the rest of their life. Young adults with complex needs are different, in that they require very intensive support. They have to make this transition and develop a sense of themselves as adults and what it means to be an adult. Creating the right environment to achieve an understanding of adult life is an important part of supporting development, and we believe that it is “educational” for those with complex needs.
Lord Northbourne (CB)
My Lords, I support Amendment 146, tabled by the noble Baroness, Lady Sharp of Guildford. For many years, I had the privilege to be a member of the governing body of the Caldecott Community, where we looked after very damaged children. Reintegration into adult life was always the problem. The noble Baroness is absolutely right that the potential to make a successful transfer into adulthood must be the ultimate criterion. It is obviously true that educational achievement and, indeed, age may be factors in the judgment, but what about the ability to succeed? It is important that that context should be established, because institutions must have as their objective not necessarily educational attainment but enabling their pupils to develop to a point where they can live independently.
Baroness Howe of Idlicote (CB)
My Lords, I also say what an absolutely splendid debate we have had so far, particularly the input from the noble Baroness, Lady Sharp, with which I agree entirely. Also, the noble Baroness, Lady Cumberlege, has given quite a new dimension to our thinking.
I have tabled a small and modest amendment in the group, Amendment 172. It is based on the fact that Clause 45 allows a local authority to cease an education, health and care plan if the outcomes set within it have been achieved. The amendment would require a local authority to continue the plan if ongoing support were needed to maintain those outcomes, so it is pretty similar to others. In effect, my amendment seeks to prevent the Bill from giving local authorities a green light to end plans prematurely, when children may still need specialist support. That issue greatly concerns the National Deaf Children’s Society, RNIB and Sense.
We must recognise that sensory impairment in itself is not a learning disability. There is no reason why most children with a sensory impairment cannot achieve as well as other children, providing that they receive the right support. What concerns me is that, without this amendment, the Bill seems to allow local authorities to remove that support just as a child is starting to make progress. It would also seemingly allow local authorities to remove that support, even if ongoing support is needed to maintain and consolidate the progress that the child has already made.
Parents have told the National Deaf Children’s Society of their frustration that their child often had to fall behind before they could get the support they needed. One parent told the NDCS that:
“Although our son made extremely good progress in his first year in his new school, this seemed to be a trigger to reduce the levels of assistance from all other departments. His speech and language therapy stopped, everything stopped. It was as if he no longer needed it and he just dropped, his development went completely backwards”.
It is that kind of scenario that the amendment is intended to prevent. Although it echoes much of what has been said already, I hope that the Minister, when he replies, can give the assurance needed for all those children.
Baroness Howarth of Breckland (CB)
My Lords, I shall briefly support the noble Baronesses, Lady Cumberlege and Lady Sharp, and the noble Lord, Lord Touhig. I will not repeat the excellent arguments they made. I have already declared the interest which takes me into this: that I am president of Livability. We have two colleges, Nash College and Hinwick Hall College, where we have young people with very profound needs indeed, and where the education, health and care plan will really make a difference if it is seen in the round. I know that we are going to come to that on another set of amendments, so I just flag that up.
I wanted to ask the Minister very directly if he would tell us why the age issue was in the legislation at all at that level. I have worked for many years in local authorities; I have been a chief officer and linked to local authorities in other ways, and I know that when you are short of money you scour through legislation to find exactly where you can draw the line. That is a proper thing for local authorities to do. I am a vice-president of the Local Government Association and I understand that there may well have been representations in relation to the funding for this Bill. However, that is a pity because there is so much that is excellent.
I shall refer by way of example to Clause 44 on “Reviews and Re-assessments”, where all the things we are asking for in terms of parental involvement and that of young people themselves, and making sure that the authority takes that forward appropriately, are in place. Even so, there is still a strange phrase in the middle on having regard to age. We are all worried about the long-term plans in the three areas that we hope, through other amendments, to try to bring together. I know that the Government are keen to amalgamate some of this thinking and they have done well for young carers; we have heard about what good work is going to be done in that area. I am keen to understand from the Minister what the thinking is behind the phrase.
Lord Low of Dalston (CB)
My Lords, I have added my name to Amendments 137, 145, 165 and 173, but I do not propose to speak to them in any detail because we have been on this debate for a good long time. We have heard a number of full and eloquent speeches and I do not wish to go over what noble Lords have said. However, I should like to add a couple of points.
The Government are presumably worried that parents and young people will assume that they have an automatic right to an education, health and care plan up to the age of 25, but that is not something that the Government need to be too worried about. Most young people will not want to stay in education until they are 25. As the noble Lord, Lord Touhig, said, these amendments do not seek a blank cheque for continuing education for all young people to the age of 25 regardless of the type and purpose of the course they are pursuing; rather, they envisage local authorities supporting young people to achieve their agreed education, health and care plan outcomes, allowing them to progress to a job, develop their independent living skills, make an economic contribution to their community and avoid swelling the ranks of those who are not in education, employment or training.
I do not think that age needs to be mentioned at all, as the noble Baroness, Lady Howarth, just said. Most young people will achieve their education, health and care plan outcomes well before the age of 25, as they do now. Young people must have the opportunity to continue their educational programmes to achieve their agreed outcomes in age-appropriate settings in order to make the transition to adulthood, including work and independent living. These amendments will ensure that the existing protections for 16 to 25 year-olds are not lost.
In that connection, Ministers have stated that no one should be worse off as a result of the Bill. Currently, the learning difficulty assessment statutory guidance requires local authorities to maintain learning difficulty assessment and support to allow the young person to achieve their potential in employment and independent living up to the age of 25. That is in part a recognition of the fact that some disabled people may take longer to reach their potential.
The Bill should therefore not derogate from what is provided for in the current learning difficulty assessment guidance. As the noble Baroness, Lady Cumberlege, told us, independent specialist providers support many students who need a longer period to complete their studies or training. Many such providers also have significant numbers of students who become disabled for the first time as they approach adulthood, which obviously delays their educational progress. Decisions about whether to maintain a young person’s education, health and care plan beyond the age of 19 should be based solely on the young person’s progress in relation to their planned outcomes. Their age up to 25 is not the most significant factor. Focusing disproportionately on age will divert attention from supporting the young person to achieve the agreed outcomes in their education, health and care plan, which should be the prime consideration throughout.
Baroness Wilkins (Lab)
My Lords, I support Amendment 172 tabled by the noble Baroness, Lady Howe. I will not extend much further this excellent debate. It is very important that the Bill and the accompanying guidance is clear on the need to maintain specialist support when this is needed. It should not simply be cut when a child starts to do well. On this point, it seems that there is an inherent tension in the draft code of practice that needs to be resolved. I would be grateful if the Minister would look into this.
On the one hand, the definition of special educational needs includes children or young people who have a disability which prevents or hinders them from making use of the educational facilities of a kind generally provided for others of the same age. There are some groups of children, such as those who are deaf, to which this particularly applies. The implication is that these children have a special educational need by virtue of the fact that they are in need of specialist support to enable them to access those same educational facilities. However, there are times in the code of practice, from the tone of what is being said, when the reader can be forgiven for thinking that only children who are not making progress should be regarded as having a special educational need. For example, on page 75, it is suggested that SEN specialists should be involved when it becomes apparent that the child is making little or no progress. Many believe that this reflects a tension between the special educational needs framework of supporting children who fall behind and the disability equality framework of taking proactive steps to support disabled children.
Will the Minister look again at this to make sure that it is crystal clear that no local authority should cut support for a child because they are making good progress when it is only because they are receiving that support that they are able to make that good progress? I would also welcome his clarification for the record that children who need specialist support, such as deaf children, should be regarded as having a special educational need regardless of whether they are falling behind or making good progress.
Lord Nash
My Lords, I am grateful to all who have spoken in this important debate. I know that we all share the same concern to ensure that young people who need educational provision up to the age of 25 will receive it. I hope that I can offer some reassurance and will be delighted to discuss the matter further with my noble friends Lady Cumberlege and Lady Sharp, the noble Baronesses, Lady Howe and Lady Howarth, and others if that is not the case. I will first respond to those amendments regarding the genuine worry that the various clauses which require local authorities to “have regard” to a young person’s age when they are over 18 will give local authorities the ability to refuse to assess a young person or to cease their plan based solely on age.
From the outset, I would like to state categorically that this concern is unfounded. Local authorities cannot make decisions based on a young person’s age alone. The legislation requires local authorities to maintain EHC plans while it is necessary for special educational provision to be made for the young person in accordance with a plan. The draft code of practice makes this completely clear, stating in Chapter 7 that local authorities must not make decisions based only on the fact that a young person has turned 18.
Let me be clearer still: our vision is for a system that is ambitious for children and young people with special educational needs. There is no hidden agenda to cut costs or to reduce the number of families we want to help. Instead, we want a system that raises the aspirations not only of children, young people and their parents, but of those professionals working with them, and that has high expectations about what children and young people with SEN can achieve. Our ambition is that with the right support and opportunities, many more of these young people will have completed their education and made a successful transition to adulthood at the age of 18, along with their peers. Our vision is that where young people need longer to complete or consolidate their learning, they are able to remain in education and continue to receive co-ordinated help and support through their EHC plan—until the age of 25 if necessary.
What we must not do is create an expectation in law that all young people with SEN will simply stay in formal education until age 25. Creating an automatic right for all young people with EHC plans to remain in education for that long would dilute the focus on outcomes that we want throughout the new system and particularly from year 9 onwards. Local authorities could delay proper consideration of outcomes until after age 18, by which time it is likely to be too late, and many young people will simply drop out of the system at that point, as happens now. Worse, it could create a cliff-edge at age 25, when support would have to end for all those with EHC plans regardless of whether outcomes had been met. Surely the focus must instead be on supporting them to achieve outcomes and make a successful transition to adulthood, wherever possible, along with their peers. We need to end the presumption of failure attached to special educational needs and make sure that local authorities are doing all that they can to help many more children and young people with SEN achieve positive outcomes by age 18.
Turning to the point made by my noble friend Lady Cumberlege about the word “must”, we think that adding it to Clause 45 would serve to create an expectation that all young people with EHC plans should remain in education until after 25. On the question of why we refer to 18, and not 19, a young person aged over 18 has the legal meaning of a person who is aged 19 to 25, and it is our intention for the clause to apply to 19 to 25 year-olds. I hope that that provides some clarification.
The noble Baroness, Lady Howarth, asked why we use the phrase “have regard to age” at all. Following pre-legislative scrutiny, the Education Select Committee stated that there was confusion about whether the Bill created an entitlement for young people with EHC plans to remain in education until 25. It recommended that we make that clear in the Bill. Including the phrase “have regard to age” is our best solution to address that recommendation. It simply requires local authorities to take a young person’s age into account as part of a range of things that they must consider when making decisions. All other suggestions that we have had err on the side of creating a presumption that young people should remain in education until 25 unless certain conditions are met.
Young people with SEN over the age of 18 must be supported to remain in formal education where this will enable them to complete or consolidate their learning, achieve outcomes and make a successful transition to adulthood. Local authorities must, in consultation with young people, consider whether that has already been achieved by the time compulsory participation ends at age 18 or whether the young person needs, and indeed wants, further support through an EHC plan. We have made it clear in the draft assessment and plan regulations and code of practice that the EHC plan process should prepare and support young people for adulthood, facilitating a successful handover to new opportunities and support in the adult world. That transition planning must start from year 9 of a child’s schooling and continue until they have left formal education and made a successful transition to adulthood. This includes enabling young people to access learning opportunities, such as those offered by the Chailey Heritage Foundation, which prepare young people to live more independently. Such opportunities are a vital part of what is needed and I am grateful to my noble friend Lady Cumberlege for enabling me to see at first hand, in an extremely impressive and moving visit to Chailey, what a difference such approaches can make to the lives of those with complex needs.
Not only do our reforms protect the current position for those aged 19 to 25, they go further by creating a legislative requirement for local authorities to focus on outcomes and prepare young people for adulthood. In addition, where young people disagree with decisions made by local authorities, they now have—for the first time—the right to appeal to the tribunal.
It is right that once these educational outcomes have been achieved, local authorities should no longer be required to maintain EHC plans. Young people with ongoing health and social care needs will continue to receive those from the relevant services; that will not stop simply because they no longer have an EHC plan. Young people who have made a successful transition to adulthood and are now in employment, higher education, adult learning and so on will continue to receive support in those settings to enable them to maintain and build on the outcomes achieved while in formal education. For example, Access to Work is available for those in employment, Disabled Students’ Allowances for those in higher education and so on.
Baroness Sharp of Guildford
My Lords, I am not totally happy with what the Minister has said. The funny phrase,
“must have regard to age”,
is used in quite a number of clauses. He seems to be saying, “We do not want to look at age, we want to look at a successful transition into adulthood”. I do not understand why the Minister prefers his wording to actually saying that we want a successful transition to adulthood. The Minister has made the point that it is not a question of going through to 25, it is a question of when, between the age of 18 and their 25th birthday, it is appropriate for them to move into independence. I therefore do not understand why he is rejecting an alternative form of wording.
On Amendments 205AA and 205AB, I need to go back and have a look at this more carefully. My understanding is that at the moment it is not proposed to collect the data, so I was interested to hear the Minister say that they will be collecting data. I thought that they were making a distinction between schools and colleges and that they were not proposing to collect the data from colleges.
Finally, in relation to the code of practice mentioned by the noble Baroness, Lady Wilkins, my understanding is that it is not very helpful. If the Minister could have another look at it, I would be grateful. I thank him for his reply and hope perhaps that he can reassure me that he might look again at the wording.
Baroness Cumberlege
My Lords, I echo what the noble Baroness, Lady Sharp, has just said. Try as I might, I am afraid that I am not totally reassured, but I am extremely grateful that the Minister has agreed to meet with those of us who have these concerns. I am sure my noble friend will appreciate that there is a very strong coalition across the Committee—I do not mean in government terms, but across the parties—and that he gets the feeling that we need to go a bit further on this. I look forward to meeting him in due course.
Lord Touhig
My Lords, the Secretary of State, Mr Gove, said in a speech at what may have been his party conference:
“I’m really lucky to have as the Minister for Children and Families Edward Timpson. In the last year, Edward has transformed the education of children with special needs in order to ensure that all young children living with a disability at last have the support they need all the way up to the age of 25”.
I repeat: all the way up to the age of 25. In the debate in the other place the Minister said, as I said in my opening remarks, that age should not be the only factor considered when determinations are made. In response to this debate the Minister has said that our concerns on the age question are unfounded. If he can assuage our concerns and take out the reference to age altogether, we will all be happy bunnies. It is as simple as that.
The noble Baroness, Lady Sharp, said rightly that age was an artificial link. So far as my Amendments 137, 145, 165 and 173, as well as colleagues’ amendments are concerned, it is important to bear in mind that the Bill says that local authorities should “have regard to” a young person’s age when making a determination, for example, to review or cease a plan. I do not know how this is going to turn out, but we may well come back to it. Recently I spoke to someone I have known for years. He worked with me when I was a councillor and he was a local government official. We discussed this and he said, “Give me half an hour and I will give you three papers in which you as a councillor will be able to say, ‘We do not have to continue this support because of the age question’”. The noble Baroness, Lady Howarth of Breckland, made the important point that councils do not want to do anything bad or wrong in terms of this Bill or what they want for young children with disabilities or learning difficulties, but because of financial difficulties and other reasons they will look at the legislation to see if there is a way to avoid doing a particular thing.
I think we share an ambition to try to resolve this. The Minister cannot fail to have been impressed by the quality of the comments and the expertise of this Committee, and I am sure that every Member will happily volunteer to join his Bill team. We will find the time in our busy lives to help him redraft some of these amendments so that he will not have this problem. I do not think that it is going to go away. We will come back to it on Report. In the mean time, I beg to leave to withdraw the amendment.
Lord Low of Dalston
“RegisterMaintaining a register of sight impaired and severely sight impaired children and young people
A local authority in England must establish and maintain a register of sight impaired and severely sight impaired children and young people who are ordinarily resident in its area.”
Lord Low of Dalston
My Lords, the amendment would introduce a new clause after Clause 36, requiring local authorities in England to establish and maintain a register of sight-impaired and severely sight-impaired children and young people ordinarily resident in their area. Perhaps I should declare my interest, which is in the register, as a vice-president of the Royal National Institute of Blind People.
Local authorities have been required to maintain registers of blind and partially sighted people since the introduction of the National Assistance Act 1948. That obligation applied to both adults and children. Following a recommendation in the Law Commission’s report on adult social care in 2011, the Care Bill currently going through Parliament lays a duty on local authorities in Clause 73 to establish and maintain registers of sight-impaired and severely sight-impaired adults ordinarily resident in the area. However, under this Bill, no such obligation exists in relation to sight-impaired and severely sight-impaired children.
The registers, which have been maintained for some 65 years now, play a critical role in enabling local authorities to assess population level need for specialist visual impairment services and support. Evidence indicates that young children and parents greatly benefit from receiving integrated support from an early stage, following identification of a child’s sight condition. Early referral, aided by a robust system of registration, is fundamental to achieving that.
Registers serve three main purposes. First, they provide a local resource to support the local authority and partner agencies with the strategic planning of services. Secondly, they indicate a person’s eligibility for certain benefits. As a matter of fact, under universal credit, children who are registered blind will be entitled to receive the severe disability addition in recognition of the household’s need for greater support. Thirdly, in the case of children and young people, the process of being registered with the local authority assists with early referral to specialist services and support, including help from voluntary groups. The requirement to maintain a register for adults assists local authorities in planning services and meeting individuals’ needs. If the same duty is not placed on local authorities with regard to children, it seems inevitable that the service planning and arrangements to meet the needs of a specific group of children and young people will be less effective.
Existing legal provisions on the maintenance of a register of disabled children are inadequate. The Children Act 1989 states that local authorities “shall open and maintain” registers for “disabled children”, but those general registers are scarcely used and do not meet sensory services requirements. The certification and registration process in relation to those with a visual handicap is unique in its potential to bring health and social care together. The situation for children is even more complicated, because social care and education both need to be involved. For example, early access to mobility training arranged through social care has a profound impact on blind and partially sighted children’s development and ability to benefit from education.
The greatest fear is that, without a statutory basis, registers of visually impaired children could fall into disuse.
On 7 September last year, in response to a Parliamentary Question from Stephen Gilbert MP, the Minister in another place said that:
“A local authority is required to keep a register of disabled children within its area and this will include children who are sight impaired and severely sight impaired”,—[Official Report, Commons, 13/9/12; col. 384W.]
but there, as your Lordships will appreciate, he was referring to the general registers. These registers for all disabled children are scarcely used and many practitioners regard them as obsolete.
Earl Attlee (Con)
My Lords, I am grateful to the noble Lord, Lord Low, for moving Amendment 142A.
The new clause seeks to replicate Clause 76 in the Care Bill, which would establish registers for visually impaired adults. The RNIB has, understandably, raised concerns that such measures for those under 18 are missing from this Bill. I agree with the noble Lord about the critical role of the register in planning services. However, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of the Children Act 1989: the noble Lord, Lord Low, referred to the 1948 Act. This register includes blind children and young people; changes proposed through the Care Bill will not remove this duty. The RNIB, and the noble Lord, report that local authorities sometimes neglect their duty to maintain such registers. However, the same risk and difficulty would apply with the proposed new clause. It provides no greater statutory guarantee than that already provided by the Children Act.
We want to ensure that local authorities are effectively meeting the needs of blind or partially sighted children. There are a number of requirements in the Bill that should achieve this. Clause 22 requires local authorities to identify,
“children and young people in its area who have or may have special educational needs”.
Clause 26 requires local authorities to make joint commissioning arrangements that include consideration of the education, health and care provision reasonably required by local children and young people with SEN. Clause 27 requires them to review the special education and care provision that is available locally.
Together, these provide a clear framework that requires local authorities to plan for and meet the needs of children with SEN, including blind or visually impaired children and young people. Following discussion of this issue in another place, the Minister for Children and Families committed to give further consideration to these issues. Officials from the Department for Education met with the RNIB to agree a way forward. As a result, page 36 of the draft SEN code of practice highlights the importance of using the registers to plan services. The code states:
“Local authorities are required under schedule 2 of the Children Act 1989 to maintain a register of disabled children in their area. These registers are particularly helpful for providing data on low-incidence needs that can be difficult to predict from national data sets.”
The noble Lord, Lord Low, referred to low-incidence needs.
I hope this removes any doubt or misinformation that registers of disabled children are somehow no longer required. I hope that the duties in the Bill, along with the additional guidance added to the SEN code of practice, provide sufficient reassurance that we expect, and require, local authorities to identify and meet the needs of children and young people with a visual impairment. I therefore hope that the noble Lord, Lord Low, will feel able to withdraw his amendment in due course.
Lord Low of Dalston
I am grateful to the noble Earl for his response, which I shall want to read with care. At first blush, it does not really persuade me that the case I made when I moved my amendment has been answered. The noble Earl referred to the Care Bill and its provisions but those apply only to adults, not to children. He also referred to the general registers of disabled children which are maintained under the Children Act. However, as I have indicated, these do not seem to work very well and are certainly not visual-impairment specific. They do not, in any way, reproduce the visual-impairment specific registers which we have been used to using ever since the National Assistance Act. There has been long-standing provision for visual impairment registers and I cannot understand the reason for removing it from statutory provision.
The Minister referred to the code of practice and I will certainly want to look at that. Indeed, I will look carefully at the full text of what the Minister has said. However, at first blush, it does not seem to me that a reference to the Care Bill, the general registers maintained under the Children Act or the code of practice really amounts to the same sort of provision as visually impaired people and their organisations have been used to enjoying since the registers were introduced under the National Assistance Act. I do not really understand the reason for removing that provision.
All sorts of discussions have taken place between the RNIB and officials. I have not been involved in them and I would be very grateful if the Minister would agree to meet me to talk this through before Report in the hope that we can get a resolution of this matter. That would avoid the necessity to bring back further amendments which might be of a divisive nature on Report.
Earl Attlee
My Lords, I, or my noble friend Lady Northover, would be delighted to have any meeting as suggested by the noble Lord.
Lord Low of Dalston
I am very grateful to the Minister for that. I have experience of his courtesy and willingness to spend time discussing matters of mutual concern. I should be very glad to take him up on that offer. As I say, I hope that in that way we will be able to reach a resolution that will avoid me having to bring the matter back on Report. For now, I beg leave to withdraw the amendment.
Lord Low of Dalston
“( ) any social care provision which the local authority considers to be necessary in order to meet the needs of the disabled person under section 2 of the Chronically Sick and Disabled Persons Act 1970.”
Lord Low of Dalston
My Lords, Amendment 143 concerns the type of social care provision that should be included in education, health and care plans. Under Clause 36(2), the assessment process for an education, health and care plan should include,
“an assessment of the … social care needs of a child or young person”.
That assessment applies to social care provision from either children’s or adult services, depending on the age of the child or young person with an education, health and care plan. There is no disagreement with the Government in principle. Everyone agrees that an education, health and care assessment should include an assessment of a child’s or young person’s social care needs.
The disagreement concerns which social care needs should be assessed and then included in education, health and care plans. As drafted, the Bill states that following the assessment of social care needs a child’s or a young person’s education, health and care plan—EHC plan—must include the social care provision,
“reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs”.
That is set out in Clause 37(2)(d).
The problem I apprehend with the language in Clause 37(2)(d) is that it is language that cannot be found in any existing children’s or adult social care legislation. I cannot understand why we would want to create a whole new terminology in this Bill when we already have clear definitions in social care law. Amendment 143 is an attempt to address that disparity between existing social care law and the Children and Families Bill. The way in which the Bill is drafted appears to add a new definition of social care on top of the existing duties in social care legislation. That can only cause confusion and uncertainty for council officers and the children, young people and their families who use their services.
Baroness Gardner of Parkes (Con)
My Lords, I support the noble Lord, Lord Low, on this amendment. I have not taken part in this Bill so far because I do not consider myself to be an expert on education and know little about it, but my concern is that, with the timing of the Care Bill being taken in the main Chamber along with this Bill in here, the whole thing might fall between two stools. In responding to the last amendment, my noble friend Lord Attlee said that there might be some duplication. I should say that I would rather see duplication than a hole. It is terribly important that this is taken into consideration. Even for those most in need of special educational support, there seems to come a time when education comes to an end. However, care needs continue in terms of the social behaviour of the person as much as anything else, and that can be quite a worry if someone falls into bad company. It is important that their social condition as much as their mental and physical condition is watched.
The noble Lord, Lord Low, has made the extremely valuable point that this goes right across these different services. For years, I have been involved in health issues, and there is always an argument about whether health or social care should deal with certain problems. Every time, each sector wants to push them on to the other one. If this provision reached over all of the services, as the noble Lord proposes, it would do away with trying to work out how the other fellow should pay for something rather than you. It would be very valuable if we could simplify this area and I therefore support the amendment.
Baroness Hollins (CB)
My Lords, I speak in support of this group of amendments. They aim to achieve equal standing for social care provision in the new education, health and care plans, and they have been ably introduced by my noble friend Lord Low. I pass on the apologies of my noble friend Lord Rix, who had hoped to be able to support these amendments.
Statements of special educational needs specify the special education provision that must be provided by the local authority. The Government have now recognised that health should also be an enforceable part of the new EHC plans, and the Bill has been amended accordingly. But if education, health and care plans are to live up to their name, we need to decide how to put the final piece of this jigsaw in place, which is the duty to provide the social care services that are set out in the plans. This is critical to children and young people with learning disabilities, a significant number of whom need care to help them to achieve their educational and personal aspirations. Let us imagine the position of a parent. They receive an education, health and care plan for their child which sets out all the education, health and social care provision that their child needs. Their child has a legal right to receive the education and health components of the plan, and the parent can hold those agencies to account if the services are not delivered.
However, the social care element seems not to be as enforceable. If the social care services identified in the plan are not delivered, there is nothing that they can do about it. We know that there can be problems with the way in which social care is currently delivered. Ofsted’s thematic inspection of social care for disabled children in 2012 found that social care was not always well co-ordinated and that many social care plans were not detailed enough or focused on outcomes. In a small number of cases, children had no plans or reviews were not held. Surely, those are precisely the types of problems that EHC plans are meant to solve.
We know that similar amendments were tabled in the House of Commons. The Minister in the other place said that he saw the rationale for placing the same duty on the provision of social care as for health and education. Therefore, what is the Government’s objection to these amendments? In many ways, they have already done the hard bit. Placing a specific duty on health to deliver the services set out in EHC plans is a major step forward and should be commended. That is why it is hard to understand a reluctance to consider the duty to deliver the social care part of an EHC plan.
As my noble friend Lord Low has helpfully set out, there are existing duties to deliver social care. This seems to be a matter of aligning existing legislation rather than creating a whole new set of duties. Parents’ expectations have been raised. This Bill will create education, health and care plans, and people will expect the plans to be delivered. At the moment, we are only two-thirds of the way there. I urge the Minister to consider taking the final step to create the truly joined-up plans that everyone is hoping for.
Baroness Hughes of Stretford (Lab)
My Lords, I also support this group of amendments and will speak to Amendments 162 and 163 in my name. Although Amendments 143 and 144A, which relate to Clause 37, are about the assessment process, they return to the heart of one of the most important debates that we had earlier in our deliberations; namely, the need to include all the needs of all disabled children. We will turn to the failure of the Bill to be sufficiently comprehensive on Report.
Turning to Amendments 162, 163 and 164, Amendment 164 essentially does the same as Amendment 163. The noble Lord, Lord Low, and the noble Baronesses, Lady Gardner and Lady Hollins, clearly have made the case as to why, in a new system that the Government are proposing in which all three elements of a child’s need—education, health and social care—are being brought together in an integrated system, it is very important that all three elements have the same status in terms of accountability. As the legislation is drafted, ECH plans would offer no more legal entitlement to support from social care services than do statements at the moment. We know that there is a great deal of variability in the extent to which children receive the social care provision that they need, as the noble Lord, Lord Low, has said.
In anticipation of what the Minister might say, he has already said in a letter to Peers that, first, the Government want, if you like, to square off the health provision because the health service is changing dramatically and he wants to make sure that health has a duty alongside the local authority to provide special educational need. That is why the Bill was amended from its first form to include health. I agree with the noble Baroness, Lady Hollins, that that is very welcome. He went to say:
“However for those with social care needs, the section 17 duties”—
in the Children Act—
“are a long-standing means to protect vulnerable children, including those with SEN and disabilities. Social care for vulnerable children under section 17 of the Children Act encompasses a wide range of needs and disabilities to emotional and family problems. It would not be right to prioritise as a matter of course the needs of those children with ECH Plans over all other children in need, for example young carers, asylum seeking children, or children suffering neglect”.
In saying that, the Government are admitting to what we fear, which is that there will not be an entitlement to provision for their social care needs in the way that there will be, under Clause 42, for their healthcare and special educational needs provision.
Are the Government really happy with that? They are proposing an excellent tripartite system. My noble friend Lord Touhig has drawn an analogy in discussions between us on this side of the Committee with a three-legged stool. The problem is that the three-legged stool will have one leg shorter than the other two, so for many families it will topple over because the social care elements—the needs and provisions specified in the plans—will not be enforceable. That is a real problem. It is very important that the three elements are equally visible and accountable and are seen as complementary. The absence of social care from the clause, although possibly technically and legalistically workable, sends entirely the wrong signal to service providers and, in particular, to parents and children. As the noble Lord, Lord Low, said, there needs to be clarity about the parity between those three elements of the service.
Baroness Howarth of Breckland
My Lords, I understand exactly what the Minister means about Section 17, but I cannot understand how that relates to this piece of the Bill. When we were discussing education with the previous Government, I remember being very forceful in saying to them, “You’re saying, ‘education, education, education’, but without ‘welfare, welfare, welfare’, children will not learn”. Unless we attend to the social care needs of children, particularly those children with disabilities, we know that they will not have the facility to learn. We know that unless there is help from specialists or social workers, if you have a child with serious behavioural problems at home, they will never get into ordinary school or even be able to survive properly in remedial school, and will end up in specialist residential care. That whole range of services will be needed as part of the social care package for those children.
As the noble Baroness, Lady Hughes, said, we are encouraging the Government to look at the whole, to get the thing together, to look at welfare alongside education and to look at how the two things interrelate. Those children will all have healthcare needs as well; very few children with those sorts of disabilities will not have healthcare needs. I thought that the Government wanted to pool all those services together in the interests of those young people.
Under Section 17, one would certainly not want children needing protection or suffering from neglect falling into a different priority; the local authority must look at them across the piece. I think that the word “must” helps them to do that, but having something in the Bill for those young people at least encourages local authorities to look at the whole.
Baroness Sharp of Guildford
My Lords, I have added my name to Amendment 164 and I endorse what has been said on this issue by the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth. The aim of the Bill is to create not just a special educational needs statement but something that embraces health and social care as well. It is absolutely right that we should put social care on a par with health. Clause 42(3) states:
“If a plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person”.
The other place insisted that this subsection should be included, so it seems right that social care should be put on a par with healthcare and education in the Bill.
Lord Nash
My Lords, I would like to respond to this group of amendments regarding the placing of a legal requirement on local authorities to secure the social care provision specified in EHC plans. I welcome the opportunity to debate this important issue and I understand the desire to ensure that our most vulnerable children and young people receive the support that they need and are able to seek redress where necessary. I thank the noble Lord, Lord Low, my noble friends Lady Gardner and Lady Sharp and the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth, for speaking on this matter. However, as my honourable friend the Minister for Children and Families noted in the other place, there are already important protections for children and young people aged under 18 in the existing legislative framework for social care support. That is provided in Section 17 of the Children Act 1989, and for disabled children under Section 2 of the Chronically Sick and Disabled Persons Act 1970. Both these Acts will still apply alongside the measures being introduced in the Bill.
Lord Nash
The duty under Section 17 of the Children Act 1989 to meet the needs of all children in need is a general duty in recognition of the fact that social care needs are potentially limitless and that local authorities have to be free to decide how to prioritise spending on them, depending on resources. There is individually a duty under Section 2 of the Chronically Sick and Disabled Persons Act 1970, but that too is subject to resources.
Baroness Howarth of Breckland
I apologise for intervening. Having been a director of social services and having had to set those priorities, I understand completely what the Minister has said, but what I do not understand here is that if all these things are already set out in statute and are “may” duties, not “must” duties, as the noble Baroness, Lady Hughes, pointed out, why can we not pull them all together in this Bill? It would make it a fine Bill rather than a good Bill. Nothing is being added if the Minister is saying that the Chronically Sick and Disabled Persons Act and the children legislation already have these things. Are the local authorities not going to have to set their priorities anyway?
The other point I want to make is that we will have education and health but not social care; social care will again be relegated as the poor relation. I have not seen how the pathfinders have looked at this, but if they have considered them all as one, that would be a good indicator of the way forward.
Baroness Hughes of Stretford
Before the Minister responds, perhaps I may also give him the opportunity to deal with a point. He seems to be making a distinction between social care, special educational needs and healthcare. He said that there is a general duty in the Chronically Sick and Disabled Persons Act because social care needs, and therefore duties, are essentially limitless. That is why local authorities must be protected so that they can decide their priorities in the context of their resources. However, surely the same argument could be made about healthcare. Health needs and their care are essentially limitless, so the health service has to decide on its priorities in relation to its resources. Yet here the health service “must” provide the services set out in the plan while the same does not apply to social care. I do not see the distinction, certainly not between social care and healthcare in regard to the point about being essentially limitless.
Lord Nash
I am grateful to both noble Baronesses for their interruptions. As I said in my letter—and will now elaborate on a little—the reason is that we do not wish to imbalance the system so that giving children EHC plans results in deprioritising other children, given a climate of limited resources, which we all know —I hope—that we live in.
It is expected that any social care service specified in the EHC plan will be provided. We do not want to create a situation where local authorities specify only a bare minimum of services, because they cannot know the precise resource constraints that may apply in the future.
Noble Lords will be aware that the Bill places a duty on health commissioners—taking the point of the noble Baroness, Lady Howarth—to deliver the health elements of an EHC plan. As part of the SEN reforms, the Government have agreed to take specific action to protect children and young people with EHC plans within the newly reformed NHS. The education and health services are universal and it makes sense that there should be equivalent duties to provide the services in EHC plans. On the other hand, social care support for children in need is targeted only at those with greater needs, of whom disabled children form a significant proportion. As I said in my letter, to which the noble Baroness, Lady Hughes, referred:
“There is a greater risk that an individually owned social care duty for children with EHC plans will adversely affect other vulnerable children whose needs could be deprioritised, such as those needing child protection services or young carers”.
Social workers must be free to consider family, educational, social and environmental circumstances and local eligibility criteria when determining which services to provide. Local authorities with finite resources must be able to prioritise appropriately those children and young people with the greatest needs, whether or not they are disabled or have SEN.
Baroness Sharp of Guildford
I apologise for interrupting the Minister again. The amendments concerned say that it is where the plan specifies social care; it is not an open sesame to any sort of social care. If what is specified can be overruled anyhow, what is the point of having a plan that specifies it?
Lord Nash
As I have said, there are very significant duties around disabled children. The plan is not intended to affect that. Amendments 162, 163 and 164 would prevent such local decision-making, to which I have just referred, creating an individually owed duty prioritising the social care needs of children with SEN over the social care needs of other children in need.
Similarly, Amendments 143 and 144A should not stand. Social care provision is defined deliberately broadly in the Bill. Clause 21(4) includes any provision required under the Children Act 1989 or the Chronically Sick and Disabled Persons Act 1970 and therefore will be included in the design of the local offer. It is only where that provision is reasonably required by the learning difficulty or disability of a child or young person that it will have to be included in the EHC plan.
Amendments 143 and 144A would require any services provided under the 1970 Act to be included in the EHC plan. However, the vast majority of services for disabled children that are provided under the 1970 Act will be reasonably required by the learning difficulty or disability of the child and therefore must be included in the EHC plan anyway.
On Amendment 143, moved by the noble Lord, Lord Low, we are not convinced that there should be a requirement that all services provided under Section 2 of the 1970 Act must be included in EHC plans regardless of individual circumstances. EHC plans are for children and young people with learning difficulties or a disability that gives rise to special educational needs. Where this also gives rise to health and care needs, that must be included in plans so that a co-ordinated approach can be taken across services. Where there are unrelated health or social care needs, it may or may not be appropriate to also include them in an EHC plan, for example, depending on whether the child or young person would benefit from a co-ordinated service response. I believe that those decisions should be left to local professionals, in full consultation with children, their parents and young people.
At the same time, Amendment 144A would remove the important discretion the Bill gives to the local authority to decide whether provision made under Section 17 of the Children Act should be included in the plan, where it is unrelated to the child or young person’s learning difficulty or disability. This discretion is essential as there may be circumstances where the children’s interests that we are trying to meet require that we do not bind the hands of local services in this respect—for example, where there is provision related to child protection, which is highly sensitive and is not always appropriate to include in an EHC plan. Whether or not social care provision is linked to the learning difficulty or disability of the child or young person, it will continue to be provided in accordance with existing legislation.
Concerning my noble friend Lady Gardner’s point about there being a possible gap between adult and children’s social care, I reassure her that young people aged 18 and over who are eligible for adult social care will, under provisions set out in the Care Bill, have a statutory care plan. For young people with SEN, our intention is that this should form the care element of the EHC plan. Both Bills contain provisions that will significantly improve the transition between children’s and adult social care. In view of what I have said, I urge the noble Lord to withdraw his amendment.
Lord Low of Dalston
My Lords, we have had an extremely good debate with some very cogent contributions from everyone who spoke in support of the concept enshrined in this group of amendments: that there is not a lot of point in specifying provision if there is no possibility of enforcing it. As I see it, my amendments were seeking only to give effect to the integrated approach between education, health and social care that has been the Government’s vision ever since they published the Support and Aspiration Green Paper.
Initially, the Bill simply contained provision for education but the department was badgered about putting in an integrated approach, so it badgered the Department of Health and, in due course, got it to cave in. A health provision was put in but, for some reason, we do not seem to have had the social care provision inserted at the point of provision. That seems extremely odd since, as has emerged in the debate, there are already provisions in the Chronically Sick and Disabled Persons Act for ensuring the provision of social care services anyway. I am not quite sure what the difficulty is in delivering social care, when there are already those statutory obligations in that Act to lock this legislation on to. It seems clear that there should be no difficulty in bringing in the social care provision, using the Chronically Sick and Disabled Persons Act as the vehicle.
The fact that needs are limitless and that it is wrong to privilege some children over others has been advanced by the Minister as a reason for not unifying the legislation. However, it seems to me that that splits off the enforceable obligations relating to social care at the wrong point. As the noble Baroness, Lady Sharp, said, if social care provision is specified in the plan then it should be provided. Otherwise, what is the point of the plan? If the authority thinks that it cannot provide certain services or cannot make certain kinds of provision, it should not put them into the plan. Providing for things to be specified in the plan without providing the legislative framework for securing the provision seems to be a mistake, and that view has prevailed throughout the debate.
There has been a strong head of steam in the debate about the need to provide an integrated legislative framework for enabling the enforcement of the social care provision specified in plans. The Committee has spoken strongly and pretty much with one voice on this, so we will need to return to it on Report. For now, I beg leave to withdraw the amendment.
Lord Touhig
“( ) any provision deemed necessary to be made available to the family of the child or young person which may assist in the promotion of the wellbeing of the child or young person concerned.”
Lord Touhig
My Lords, Amendments 144 and 146 are tabled in my name and that of my noble friends Lady Hughes and Lady Jones and Amendment 175A in my name only.
Clause 37 deals with EHC plans and subsection (2) specifies what should be in the plan. Amendment 144 states that the plan should specify any provision necessary to the family of the child or young person. As with a number of other amendments, it seeks to place the capabilities of the child or young person’s family at the heart of any assessment process, which is important in properly informing the provision that they may need to have specified in an EHC plan.
It is prudent that family life and home life are considered when the provision is made. Families are key to the well-being of children and young people with special educational needs and disabilities and to ensuring that they reach their full potential. They are a crucial resource in improving the outcomes of those children and young people and we should not overlook them. In the other place, the Minister said that EHC plans should describe the range of services that are needed to meet the needs of a child or young person and that the focus of plans must be the child or young person. He cited other things that would benefit parents and families, such as short breaks or the provision of transport. He said that the Government did not think it necessary to add anything specific to the legislation but would continue to develop the code of practice. I am not sure that he is right in that respect, but I am encouraged that the Minister said that he will look again and reflect on Amendment 131, tabled and spoken to by my noble friend Lady Jones. As that is very similar to Amendment 144, he might care to reflect on Amendment 144 at the same time and give us some good news afterwards.
Amendment 169 is tabled in response to the report of the Delegated Powers and Regulatory Reform Committee on this Bill. The Government have not tabled any amendments in response to the report, so I hope that the Minister will take this opportunity to explain how the powers will be used.
I turn to Amendment 175A. All too often, we hear of the adversarial struggle that parents face to obtain the right support for their children. If anybody has any doubt about that, I suggest a five-minute conversation with the noble Baroness, Lady Browning, who will enlighten them about the way parents often have to struggle on behalf of their children. The stated intention of the Bill is that it will make it easier for families to get the support they need. That is a noble intention.
However, an oversight in the Bill about what happens when a family moves is causing great uncertainty and anxiety to a great number of families and support organisations. We all know the terrible struggle that families with children and young people with special educational needs and disability too often have to go through to access vital services. Seven out of 10 parents of children with autism, for example, say that it has not been easy to get the educational support that their child needs.
Without Amendment 175A, such families will continue to have to struggle to access the services that they desperately require. The Bill currently perpetuates the status quo, whereby when families move from one local authority area to another, they do so without any clear idea as to what support their child might receive. They can also face the prospect of costly legal battles, with the appalling result that children and young people end up missing out on education while such battles are fought.
In many cases, parents feel trapped. A parent told the National Autistic Society—here I declare an interest as a vice-president of the National Autistic Society—that they feared moving because,
“we would have to start the assessment process from scratch, even though Mohammed has very complex needs. The stress of doing that all over again, along with the risk that we might lose his place at his current school is terrifying for us”.
It cannot be right that, should the family move, they might have to restart the assessment process, potentially disrupting the education and healthcare of children and young people.
The amendment is intended to echo existing clauses in the draft Care and Support Bill, which set out a local authority’s responsibility both when someone moves into the area and when someone moves out. It is impracticable to expect local authorities to replicate exactly the provision agreed by a different authority. However, it should be expected that provision is based on the previous assessment and agreed outcomes rather than starting from scratch. The positives of such streamlining are manifest: withdrawing the shadow of fear for families that they may have to undergo complex assessments for a second time; and ensuring crucial continuity of provision of services for children and young people.
Regulation 3, paragraph 15, entitled “Transfer of EHC plans”, sets out in detail what should happen when a child or young person with an EHC plan moves to another local authority area. Unfortunately, it makes no mention of continuity provision. I wonder whether the Minister will be prepared to review that. Alternatively, will he commit to, at a minimum, strengthening the regulations that will dictate the portability of education, health and care plans to ensure that there is clear guidance for local authorities and coherence between this Bill and the Care Bill?
As a brief aside, when I served as a Defence Minister, I constantly found that servicemen were reluctant to move, sometimes even when it involved a promotion, if they had children with special educational needs and their children were statemented, because they had to go through the whole process again. We were working on a plan for a statement passport. Unfortunately, I had a phone call from No. 10 and Mr Blair awarded me the DCM—don’t come Monday—so I was no longer a Minister and was unable to take that forward. However, there is merit in having such a passport. By ensuring that education, health and care plans are portable across local authorities, we will ensure continuity of service. I think that we all want that, and, therefore, I beg to move.
Baroness Howe of Idlicote
My Lords, I have tabled two amendments in this group. Before I speak to them, I want to say how impressed I was by what the noble Lord, Lord Touhig, had to say about his amendment, which I certainly fully support. It is important that movements by families of this kind should be facilitated and that they receive the same care as they would have, had they stayed where they were.
Amendment 147 would insert a new subsection after Clause 37(4) stating that:
“In making a decision for the purposes of this section in relation to a young person aged over 18, a local authority must seek psychological advice from an educational psychologist”.
I have tabled the amendment to explore two specific concerns about this clause. The first is about the support available to young people with special educational needs aged between 19 and 25. Although educational psychologists principally work with children and young people aged from nought to 19, the profession is increasingly supporting young people over the age of 19 in a number of settings, including the further education sector. Currently, educational psychologists across the country are playing an important role in supporting these young people. However, under the provisions of this clause, it is not clear what role educational psychologists will continue to play in post-19 settings, and how this will be promoted. The proposed age extension to 25 years has been welcomed for the assessment process, but that will need careful workforce development planning to ensure that young people aged 19 to 25 years are well supported by a sufficient number of educational psychologists in future.
It would certainly be helpful if the Minister, when he replies, could set out clearly how he envisages the new proposals helping educational psychologists to contribute to supporting young people. It would also be useful if he could explain the impact of the changes on future workforce development. The Government clearly need to ensure that enough educational psychologists are being trained to meet future demand. I would also like some clarification on the role of educational psychologists in the assessment of children and young people who come in from outside the system; that is, if they have moved to the UK from abroad. Under the current proposals, it is unclear how these children and young people will be supported. I hope that the Minister will be able to provide us with adequate reassurance on this important issue.
I turn now to my second amendment, Amendment 168, which would amend Clause 44, headed “Reviews and re-assessments” by inserting a new subsection:
“Following a review of re-assessment, a local authority has to seek psychological advice from an educational psychologist”.
One of the reasons that this whole area is coming to the forefront of our discussion is the increasing emphasis being placed on mental health problems. I hope that this issue is being taken more seriously than perhaps it was in the past.
I am encouraged that the Bill will retain the existing protections for parents, including an explicit right for them and for the school to request education, health and care plans. I know that during scrutiny of these clauses in the other place, the Minister for Children confirmed that under the proposals, there will be access for all children and families to specialist services such as educational psychology on an equitable basis. Currently, under statute, a reassessment of SEN follows essentially the same process as the initial assessment. If a child or young person’s needs change, a further assessment can be requested and, if carried out, the local authority must comply with all the statutory requirements, including meeting time limits and consulting with professionals as specified in the regulations; that is, educational professionals, educational psychologists, social services and health services.
However, under the Bill, a new concept of reassessment is now being introduced which allows a local authority to determine the format of the reassessment. Local authorities will no longer have the same duty to consult and obtain evidence from designated professionals and can choose to review only a specified aspect of the EHC plan. Although the code of practice states that reassessment must follow the same process as an initial assessment, I know that there are concerns that under the Bill, there is no guarantee that EPs will be consulted when a reassessment takes place. The fact that children and young people undergo a reassessment because there is a significant change in their needs makes it more important that educational psychologists are involved, to ensure that the child’s voice is considered. Educational psychologists will also work with parents and schools to ensure that the right support is found for the child.
Lord Lingfield
My Lords, I have one amendment in this group, which is to Clause 37(5). It is to provide a standard form of education, health and care plan rather than use the more discretionary wording of the Bill. At the moment—and this touches on the point made by the noble Lord, Lord Touhig, concerning passports for special educational needs—statements are in a standard form. If there is no similar standard form for education, health and care plans they will surely be subject to each local authority’s drafting preferences. As a result, EHC plans may not be in a consistent format and may vary widely in their level of detail. This could cause confusion and difficulty for parents and young people, especially if they move from one local authority to another. Relocation of this kind, under current economic circumstances, is becoming extremely common.
Your Lordships will have noticed, in relation to Clause 30, and the local offer, that there are strong arguments for a consistent national framework for the key tenets of the new system of assessment and provision brought in by the Bill. In addition—as the Minister reminded us when we debated Amendment 71—in his appearance before the Education Select Committee on 6 November last year my honourable friend the Parliamentary Under-Secretary of State for Children, Schools and Families stated:
“The first thing I want to be absolutely clear about is that the current protections that parents and young people have in the current statementing system are intended to be carried forward into the new system”.
In the spirit of this, and as I sought to express in this amendment, I believe that these key duties relating to statements should remain the same for EHC plans, and that, in particular, the requirement for a standard form, and the duty to be specific about provision, should remain. I hope that the Minister will be sympathetic to this.
Baroness Sharp of Guildford
My Lords, my name is added to that of the noble Baroness, Lady Howe, for Amendment 147 and I endorse what she has said on this issue. Statements for special educational needs require an educational psychologist to endorse them and it is obviously sensible and important that this should be extended to the post-18 age group. I probably also should have put my name to Amendment 168 because the argument there is just as cogent and important.
While I am on my feet, I should say that I have a lot of sympathy with the amendment in the name of the noble Lord, Lord Lingfield. As he said, as we have a set format for statements of special educational needs, it would seem sensible for it to be carried forward in relation to the EHC plans.
Lord Addington (LD)
My Lords, perhaps I may very briefly add a few words of support, particularly to the last amendment in this group. Good transference of these provisions around the country would be an opportunity for the Government to deal with a fairly ancient wrong. It has always been difficult and has always been seen as too difficult, but if we can embrace it now we will go forward and take on board something which runs through a lot of this legislation; namely, that it has genuine cross-party awareness and support at heart. Even if this amendment is not perfect—even the noble Lord can make an error in drafting—I hope that we can say something positive in this regard. If we can go forward and see how it can be addressed in the future, that would help everyone and would probably make people’s lives a little bit easier.
Baroness Whitaker (Lab)
I speak in support of Amendment 175A in the name of my noble friend Lord Touhig. I have in mind a particular group of children with disabilities who move and I am not sure whether this amendment exactly covers them. If the Minister is going to say that Clause 47 covers the concerns of the noble Lord, Lord Touhig, will he clarify whether Clause 47, or the new clause proposed by Amendment 175A, would cover the situation of travelling children? This might be the child with disabilities of a showman who is based in one area, say, for three or four months over the winter, and then moves every few weeks to wherever the parents’ have work. The care plan needs to be transferred to each local authority. I had thought that Clause 47 might cover that, so my first question for the Minister is: is that covered? My second question is: if he entertains my noble friend’s amendment about children who move residence, as opposed to moving where they live from time to time, would that cover the situation of travelling children who return to a base but only once a year?
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Touhig, and other noble Lords who have either moved or spoken to amendments concerning education, health and care plans. I welcome the opportunity that these amendments give to discuss the EHC plan, as it is a vital part of our reforms. For the first time, it will provide a single plan across the whole nought-to-25 age range, and will be focused on how education, health and care services will work together with families and young people to secure improved outcomes for children and young people.
Turning first to Amendment 144, I share the concern of the noble Lord, Lord Touhig, to ensure that family support is included in an EHC plan. The EHC assessment process will consider the needs of the child or young person across education, health and care, including the circumstances of the family where there are social care needs for someone under the age of 18. For example, if, based on family circumstances, social care provision is required under Section 17 of the Children Act 1989 to meet the child’s special educational needs, it must be specified in the plan.
The existing duties will continue to mean that children and young people receive the assessment they require for their needs, supported by the new duties, in Clauses 25 and 26, for local authorities and the health service to integrate and jointly commission services for children and young people with SEN, and by chapters 4 and 7 of the draft code of practice, which focus on multi-agency working to produce a joined-up EHC plan.
I turn to Amendment 147. The noble Baroness, Lady Howe, is right to want to ensure that educational psychologists are involved in decisions about EHC plans for young people aged over 18. Doing so will assist local authorities in making evidence-based decisions on whether remaining in education will be the best option for individual young people and whether they continue to need special educational provision.
This is why we have already made it clear in Regulation 6(1) of the draft assessment and plan regulations that educational psychologists, along with other relevant professionals, must be consulted when local authorities are carrying out an assessment for an education, health and care plan for any child or young person, including for young people aged over 18. Further detail on that is set out in section 7.7 of the code of practice. The noble Baroness raised quite a few detailed points, and I think that it would be better if my noble friend Lady Northover wrote to her on those. She asked about the training of educational psychologists. The Government carried out a review of training in 2011 and, as a result, has put the arrangements for their training on to a secure basis, including central funding for the National College for Teaching and Leadership.
I fully understand the intention of my noble friend Lord Lingfield through Amendment 147B. It is vital that EHC plans provide consistent, clear and specific information on outcomes and provision. Draft assessment and plan Regulations 11 and 12 and chapter 7 of the draft code of practice set out detailed requirements and expectations about the preparation and content of EHC plans to ensure consistency, including that provision should be specific, detailed and quantified. In addition, Section 3.3 of the code provides details on the information, advice and support that must be provided, including trained independent supporters where appropriate.
My noble friend commented on the format of the plans. I repeat the commitment of the Minister for Children and Families to protect existing rights and protections. That certainly includes being specific about the provision to be made. However, I am not convinced that a standard format is itself a right or protection. It is better to leave flexibility to design plans around the needs of parents, children and young people.
I do not believe that it is helpful to have prescription in the form of a standard template. We have left flexibility for local areas to design EHC plans best to meet local needs. To ensure consistency, we have included in section 7.9 of the draft code of practice a list of the key information that every EHC plan must include in distinct sections, including arrangements for monitoring progress. Having skimmed it a few hours ago, I have to say that it is comprehensive. We have also been working closely with pathfinders to develop and publish example EHC plans.
The Countess of Mar (CB)
My Lords, the Minister said that he was against having a statutory form to satisfy local needs. I thought that we were talking about children’s needs.
Earl Attlee
We are talking about children’s needs, and local authorities will need to ensure that their template and the way that they do it suits the needs of their children. What we do not need is central government dictating exactly what the template will look like.
Government Amendments 148 and 149 enable regulations to make provision about amending and disclosing education, health and care plans. Equivalent provisions currently exist in paragraphs 2A(5) and 7 of Schedule 27 to the Education Act 1996. The amendments also require that any amendment to the plan applies to Clause 33, which requires that children and young people with a plan be educated in mainstream provision other than in specified circumstances.
Having the ability to make amendments to plans will ensure that local authorities will retain the flexibility to make minor amendments to keep plans up to date without the need for a full review or reassessment—for example, when a particular outcome in a plan has been achieved. Assessment and plan draft Regulations 26 and 27 set out how we would propose to use the powers on amendment, including requiring that local authorities consult fully with the parent or young person.
Regarding the regulation-making power and disclosing EHC plans, our proposed new regulations are in assessment and plan draft Regulation 17, which will be laid following consultation, subject to noble Lords’ approval of these amendments. The regulations ensure that sensitive information in EHC plans must be protected and can be disclosed only with the child’s or parent’s or young person’s consent except in specific circumstances, such as to share with schools and colleges.
Lord Touhig
My Lords, we have had quite a wide-ranging debate and the Minister has had to cover a huge number of issues in his response. I am sure that all noble Lords will want to read Hansard and reflect on his comments to decide whether there is any purpose in taking these matters further. As regards the amendments to which I directly spoke, the Minister’s answer on Amendment 144 was not quite what I had expected, but I will look carefully at what he said in Hansard. On Amendment 169, the Delegated Powers and Regulatory Reform Committee report on the Bill said:
“We invite the House to ask the Minister better to justify the scope of the powers conferred by clause 44(7)(b) which to us, in the absence of an explanation, appears to be inappropriately wide”.
Again, I am sure that I will not be alone in studying the Minister’s reply to see if he has satisfied any concerns. Amendment 175A seeks to ensure portability. I was encouraged because the Minister was nodding vigorously while I was speaking, so I had much hope that we would be going in the direction that I want. Again, I will look carefully at his remarks in Hansard to see whether there is any need to pursue this matter further on Report. I am grateful to all noble Lords who have taken part. We have had a very good debate and I beg leave to withdraw the amendment.
“(6) Regulations under subsection (5) about amendments of EHC plans must include provision applying section 33 (mainstream education for children and young people with EHC plans) to a case where an EHC plan is to be amended under those regulations.”
Lord Lexden
“(f) an independent school”
Lord Lexden (Con)
My Lords, in moving Amendment 153 I shall speak also to Amendments 157 and 159. In doing so, I declare my interest as president of the Independent Schools Association, a body representing the heads of some 300 smaller and less well known independent schools that form part of the Independent Schools Council, of which I was once the general secretary. The amendments are short and straightforward, and I do not need to detain the Committee long in outlining them.
The purpose of Amendment 153 is to remove all doubt and achieve absolute clarity on a crucial point that seems to be generally agreed in actual practice; namely, that parents and young people will be able to make representations for any independent school to be named in an EHC plan, not just those on the list approved by the Secretary of State under Clause 41. The Explanatory Notes to the Bill expressly state at paragraph 216 that:
“Parents and young people will … be able make representations for an independent school or post-16 independent specialist provider not included in this list as is the case under the current legislative framework”.
My noble friend Lord Nash, in a letter to Mr Barnaby Lenon, the current chairman of the Independent Schools Council, also stated:
“I can assure you that parents and young people will still be able to make representations for independent schools that are not on the list approved under clause 41 of the Bill, and the local authority will … need to consider those representations”.
Finally, I shall quote from the recently published draft SEN code of practice, to which much reference has been made in these debates:
“Parents and young people may also make representations for places in non-maintained early years provision or at independent schools or Independent Specialist Providers … that are not on the list mentioned in (f) above and the local authority must consider their request”.
All that seems clear enough; indeed, complete unanimity could hardly be more clearly expressed, and yet Clause 38(3)(f) provides that the right of parents and young people to make representations for an independent school can be exercised only in respect of,
“an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval)”.
That list, of course, does not include all independent schools so the unanimity so clearly expressed in the Explanatory Notes, in my noble friend’s letter and in the draft SEN code of practice is not reflected in the Bill itself. That is the point.
Lord Touhig
My Lords, I will speak to Amendment 158 in my name and in the names of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch, and to Amendment 161 in my name.
Clause 39 deals with requests for particular schools or institutions in EHC plans. As drafted, the clause sets out that if the school requested is unsuitable for the child, or incompatible with either the provision of efficient education for others or the efficient use of resources, the local authority will ensure that the plan names a school or specifies the type of institution which could be appropriate. This amendment would ensure that parents agreed with the school chosen by the local authority when their first choice did not work out, before the local authority is able to name the second choice school in the EHC plan. This issue has already been discussed in relation to a previous clause.
It is, shamefully, already the case that some schools unfairly reject children with special educational needs; the Bill would continue to allow them to do so. I have been taking part in the Lord Speaker’s outreach programme and not so long ago I visited a school. I looked through the school’s prospectus, which said, “We welcome children with disabilities and special educational needs”. The next sentence started, “However”. That is, I fear, too often the case. Concerns have already been expressed about this issue by other noble Lords—notably, at Second Reading, by the noble Baroness, Lady Grey-Thompson. This amendment would ensure that, where parents try to name a school and a local authority relies on an exception under subsection (4) in order to refuse to name that school and then puts forward another school, the second choice school can only be named on a plan if the young person or parents agree.
I turn to Amendment 161. Clause 41 enables the Secretary of State to approve certain institutions, such as independent schools, for the purpose of enabling the institution to be the subject of a request to be named in an EHC plan. Subsection (5) gives the Secretary of State power to make regulations about giving and withdrawing approvals. This amendment would require the regulations to also set out the rights of appeal, the timetable for that and what the relationship with the local offer will be in such circumstances.
A similar amendment was tabled by Robert Buckland MP in the House of Commons. Robert Buckland was my Conservative opponent when I was first elected to Parliament. He is now chairman of the All-Party Group on Autism and is a doughty champion of people with special educational needs. He has done a tremendous amount of work and many of his arguments are well worth listening to. When he argued this in the other place, the Minister said that:
“The indicative regulations set out the procedures and timetable for the Secretary of State to follow on approving institutions … Regulations 5 and 6 set out the procedures for the Secretary of State to follow in withdrawing approval.”
However:
“The regulations do not set out procedures on how to appeal or review the Secretary of State’s decision”.—[Official Report, Commons, Children and Families Bill Committee, 16/4/13; col. 508.]
The Government appear to believe that such regulations are unnecessary. Consequently, without this amendment, families and young people are left without a route of appeal in such circumstances. That is a serious omission from the legislation which serves to undermine the power of children, young people and their families to get the best for their youngsters’ needs. The Minister’s colleague did not see the merits of that argument when it was advanced by Robert Buckland in the other place: I hope he will be convinced by it in this place.
Baroness Perry of Southwark (Con)
My Lords, I very much support the amendment in the name of my noble friend Lord Lexden. I recently spent a day at Gretton School in Cambridge: an independent school entirely for children across the whole range of autism. Some of the most severely autistic young people are in classes of four and five. At the end of my visit, I took my hat off to the patience and skill of the school’s teachers. As I said, it is an independent school; it also offers boarding. It takes children from a wide range of local authorities from the eastern and East Anglia regions. Most of them come with statements from their local authorities and are supported by them, but many parents have to pay additional fees for boarding. Gretton School and others such as those my noble friend described have an important part to play in the range of offerings for disabled children. It is important that they are named in the Bill, as otherwise local authorities may simply assume that they cannot be included in EHC statements. I very much hope that the Minister will look sympathetically at these arguments.
Lord Addington
My Lords, perhaps I may briefly add something. It has been a tradition that the independent sector has periodically supported the state system in specialist areas. If we are to use specialist support and help here, then making sure that it is stated up-front that that is possible will probably be more helpful than otherwise.
Lord Nash
My Lords, this group of amendments concerns independent specialist provision. I thank all noble Lords who have spoken in this debate. I particularly thank my noble friend Lord Lexden for his Amendments 153, 157 and 159, which seek to ensure that independent schools, including those specially organised to cater for children with special educational needs, continue to play an important part in SEN provision.
Currently, parents can request that a maintained school is named in a statement of special educational needs. The local authority is then under a qualified duty to name that school and, if so named, the school has to admit the child. The Bill extends to young people the right to ask for a particular institution to be named in an EHC plan and the coverage is extended to a wider range of institutions. Parents or young people will also be able to ask for an academy, including a free school, a further education or sixth-form college, a non-maintained special school or an independent institution approved under Clause 41 to be named in an EHC plan. The local authority will then be under the same qualified duty to name the institution and the institution will be under the same duty to admit the child or young person. For this change to be of real benefit to parents and young people, it is important that, when a parent or young person requests one of these institutions, the local authority is under a qualified duty to name that institution in the EHC plan and that the institution is under a duty to admit the child or young person.
Turning to Amendment 153, I understand my noble friend’s desire to ensure that parents and young people can ask for any independent school to be named on an EHC plan and not just those on the list under Clause 41. I reassure my noble friend that parents and young people will be able to make representations for any independent school, and the local authority must consider their request. In doing so, it must have regard to the general principle in Section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Paragraph 7.11 on page 111 of the draft SEN code of practice makes this clear. Of course, the local authority would not be under the same conditional duty to name the school in the EHC plan as it would in the case of an institution approved under Clause 41, and the school would not be under a duty to admit the child or young person.
My noble friend’s amendment would place local authorities under a duty to name an independent school in an EHC plan with no guarantee that the independent school would admit the child or young person, leaving the local authority unable to fulfil its statutory duty to secure the special educational provision in the plan. As we have heard many times from noble Lords in this debate, it is important that children, parents and young people are clear about what they are entitled to. This is key to their confidence in the new system.
Turning to Amendments 157 and 159, I reassure my noble friend that Clauses 39 and 40 require the local authority to consult the institution which might be named in an EHC plan, including an independent special school or independent specialist provider approved under Clause 41. This will allow meaningful discussions, especially if a school or college feels that it cannot make appropriate provision to meet the pupil’s needs. After this consultation, the authority will name the institution that it feels is appropriate. If it is decided that an institution approved under Section 41 is appropriate and that institution is named in the EHC plan, the institution is under a duty to admit the child or young person. It is important to remember that only those institutions that have chosen to apply to be approved under Clause 41 and are subsequently approved will be under such a duty.
Amendment 158, tabled by the noble Baronesses, Lady Hughes and Lady Jones, and the noble Lord, Lord Touhig, seeks to protect the right of children, young people and their parents to choose the school or institution named in their EHC plan. I agree with the intention behind the amendment—the importance of a person-centred system is at the heart of our reforms. The Bill places specific duties on local authorities to consult a child’s parents or a young person while drawing up an EHC plan. Clause 38 requires the local authority to send the draft plan to the parents or young person and to make clear their right to make representations about its contents, including the right to request a particular school or institution. In the event that a parent or young person is not satisfied with the school or institution named in their EHC plan, they have recourse to mediation and an independent tribunal.
Lord Lexden
My Lords, I thank all who have taken part in this brief debate, and particularly my noble friends Lady Perry and Lord Addington for making clear their strong support for the great work that is done in independent schools, particularly those of a specialist character dealing with special educational needs. I listened carefully to my noble friend’s reply, and I thank him for dealing with the points so fully. He will understand that in listening to him I did not extract complete assurance and total satisfaction. I shall read the comments in Hansard in full and consider what further action might be appropriate, as many other noble Lords will be doing. For the time being, I beg leave to withdraw the amendment.
Baroness Sharp of Guildford
My Lords, I shall speak also to Amendments 177 and 179 in my name. In Clause 49, we move to the issue of personal budgets and direct payments. The purpose of these amendments is to probe issues concerning direct payments and personal budgets. The Bill provides an entitlement for schools or colleges to make representations to the local authority when it is considering making a direct payment to a child or a parent. The amendment provides an alarm for local authorities to be able to exercise a judgment about whether to make an individual payment.
Clause 49 gives the parent a statutory right to require the local authority to prepare a personal budget and to meet direct payments, even in circumstances where the school or college does not think that this would be sensible or justified in terms of efficiency or economy. This is not to disparage the vital contribution that parents make, but to suggest that there will be occasions when their wishes would not necessarily be in the best interests of their children or reasonable in the context of an efficient and cost-effective system.
The case has not been made in the pathfinders that the introduction of direct payments to parents will help children with special educational needs. The evaluation of the pathfinders shows that the demand for direct SEN payments to parents has been extremely low. The evaluation states that many commentators are apprehensive about the extent to which this testing should be rolled out to a wider population. Of the 290 direct payments across the 14 case study sites in the pathfinders, 270 out of 290 dealt only with school personal transport. That means that there has been no investigation of the feasibility or desirability of making direct payments to parents for educational elements of the provision, such as the deployment of a special teaching assistant.
The pathfinder information pack acknowledges that personal budgets are more established in social care and health settings than in educational settings. The pathfinders themselves found that schools, colleges and parents were often confused about which elements of funding, in an educational context, could be used as a personal budget to give families more choice and control. The reasons cited for poor take-up are the challenges and complexities in the direct payments offer. Personal transport budgets were in fact by far the easiest to disaggregate. The pathfinder information pack acknowledges that it is essential to have a good market development strategy in place.
A remaining concern for teachers is that the fragmentation of budgets will have a detrimental effect on the viability and quality of services which pupils need to access, and will lead to a lottery of appropriate SEN provision. Teachers are also concerned about the loss of the quality assurance role carried out by local authorities and do not believe that giving individual packets of money to individual parents is the most cost-effective way to deliver the provision to meet needs. The case for direct payments, they feel, has not been proven by the pathfinders.
The warning in the evaluation report that there are reservations about the extent to which testing can be rolled out to a wider population needs to be carefully heeded. Teachers continue to have significant concerns. In a recent survey, 65% of SENCOs—the special educational needs co-ordinators in schools—were concerned about allowing parents to control funding for SEN provision. That is not because teachers fail to recognise the essential role of parents, or their unparalleled knowledge of their child’s individual needs and aptitudes; it is because teachers also recognise that teachers, schools and parents must work as equal partners, with the professional judgments and expertise of teachers respected and valued alongside the contribution from families.
The pathfinders have not, it seems, proven that to be an option that parents are demanding or which teachers have confidence can work, or will benefit the children with special educational needs whom they teach. Demand for direct SEN payments has been low, and many children’s charities believe that the introduction of individual payments will further accelerate the disintegration of specialist services, such as the support services for deaf children, which the Council for Disabled Children is campaigning to save in different local authorities. The case that direct payments will support the SEN reforms in a meaningful way has not yet been proven. I beg to move.
Baroness Jones of Whitchurch
My Lords, we have Amendments 180, 271 and 273 in this group, which I shall address. We have touched on personal budgets in a previous debate. At that time, the noble Baroness, Lady Howarth, spoke movingly about some of the problems experienced by those in adult social care in managing employment challenges when they had to employ staff and the financial complexities of the budgets that they were expected to manage. We understand the concerns that have been expressed and share a number of those that were raised by the noble Baroness, Lady Sharp. We have taken a slightly different approach to the issue. In principle, we support the concept of personal budgets and direct payments, which give parents more flexibility and say over the support that their children get. It is a principle that we have supported for other forms of care in the past.
This is a new area of social policy. We feel strongly that these reforms are based on evidence and are not rushed through. As we know, the pathfinder pilots have been extended and now will not finish before the autumn of 2014. We very much appreciated the chance to meet with some of the pathfinder champions a couple of weeks ago when there were some very good examples of the improved quality of life that personal budgets could bring, as well as some of the difficulties and challenges that they presented.
It seems that the rollout of personal budgets is the least well researched and analysed, not only the impact on the individuals concerned but also on the institutions from which the services will be procured. Our Amendment 180 would build in essential time to reflect and learn from the pilots by requiring regulations to be made by affirmative resolution and a report to be published after the pathfinders have concluded, setting out the evidence and guaranteeing proper scrutiny by Parliament.
It very much feels as though we are legislating on this issue prematurely. Given that we are considering the Bill now, it is not clear how the Government plan to take account of the findings of the pathfinders. There are many things on which we remain unclear—for example, how devolving budgets will work on a practical level; how they will impact on the quality of provision and on costs; and how we can ensure that providers are reliable and accountable. It is also unclear how institutions with devolved budgets—for example, academies—can be required to make a contribution to personal budgets from their own funds. These are some of the issues that we feel need to be debated further.
As we know, interim findings from the pathfinders were published in June. In a subsequent letter, the Minister stated that they show,
“a clear appetite for parents to be involved in the decision making process and to have choice and control”.
However, he also referred to the challenges that the pathfinders faced in implementing personal budgets, particularly direct payments. He stated that the department has established an “accelerated testing group” to make progress in this area. I would be very grateful if he could update us on that work and explain how the conclusions from this group will impact on the provisions in the Bill.
The findings also made clear that there were complexities about resources being calculated and allocated. Such concerns are exactly why we think that these reforms should not be rushed through. We should take time properly to consider the evidence, and we believe that our amendment provides the mechanism to do that.
Our Amendments 271 and 273 reflect some of the concerns flagged up by the Delegated Powers Committee. It stated:
“We take the view that, because these are novel proposals and the whole system of personal budgets will be set out in the regulations, the regulations should be subject to the affirmative procedure at least in relation to their first exercise”.
We agree that these changes are too big and too significant to be dealt with by negative resolution. Our amendments would guarantee a positive decision of both Houses as these regulations go forward.
We are grateful that, belatedly, the Government have agreed with this view and have gone some way to meeting our concerns. However, we feel that our amendments are more comprehensive than those tabled by the Government. I hope that I have persuaded noble Lords that we should delay a decision on the regulations on personal budgets until the pathfinders have concluded and that noble Lords will agree to support our amendments.
Baroness Howarth of Breckland
My Lords, I spoke at more length than is usual for me on this when I raised it, under Clause 30, in relation to the arrangements to assist young people and parents managing a personal budget, should they choose one. I therefore wish to support the noble Baronesses, Lady Hughes and Lady Jones, on Amendment 180. It is clear that some families find that personal budgets bring them freedom, and freedom of choice, but only if they have help in understanding how to manage that budget. I agree with the noble Baronesses that this is little researched, yet we have more information from the adult services which could be looked at. Some of the problems for these young people and for the families of these children will be the same as those experienced by adults who have disabilities. There is no reason why we should not be able to gather that information together and extrapolate from it into some of these areas.
I certainly have grave anxieties about this moving forward quickly, and not only on behalf of the parents and young people. If it is not thought through, in terms of funding, there is a grave danger that educational institutions that depend on payments could find themselves unable to plan; if families have personal budgets with which to pay for the educational element, it could cause serious difficulties. I therefore support the amendment, which moves forward on personal budgets to give families freedom—where there is proper research—but takes it steady so that we do not cause even more difficulties than we already have in the adult field.
Lord Nash
My Lords, I would like to speak to this group of amendments concerning personal budgets and the recommendations of the Delegated Powers and Regulatory Reform Committee on personal budgets and Clauses 54 and 55, on appeals and claims by children.
I first turn to Amendments 180, 271 and 273 and government Amendment 269, which respond to recommendations from the Delegated Powers and Regulatory Reform Committee.
I hope that the noble Baronesses, Lady Hughes and Lady Jones, will be pleased to note that government Amendment 269 to Clause 107 takes forward the advice of the DPRRC, as sought by Amendments 271 and 273. Amendment 269 will require affirmative resolution by both Houses of Parliament for the first order to be made under Clause 49(3) and for affirmative resolution in both Houses, in relation to Clause 54(2), on pilot schemes for appeals by children.
With Amendment 180, the noble Baronesses, Lady Jones and Lady Hughes, also seek assurance that the pilot scheme for direct payments for special educational provision will be evaluated. I am pleased to be able to reassure noble Lords that we are meeting the commitments, given when the pilot scheme was established, to evaluate the scheme. For example, the Process and Implementation Research Report on the pathfinder programme, published by the department in June, includes a standalone chapter on the testing up to March this year.
However, we recognise that there is more to learn. That is why, as the noble Baroness, Lady Jones, mentioned, we established our accelerated testing group of pathfinders, whose work has been fundamental in developing the draft regulations made under Clause 49 and section 7.13 of the draft code. It is also why we have asked the evaluators of the pathfinder programme to deliver a standalone thematic report on this subject in 2014.
The specification for the report has yet to be finalised, but it will involve in-depth work with a small cohort of pathfinders and include further research on how direct payments for special educational provision have operated. In addition to the thematic research, I should stress that this is not the only source of evidence to support this policy. A quick comparison of the indicative code, published to aid consideration of this Bill in the other place, against the consultation draft, shows how far our knowledge and understanding have developed this year. This knowledge continues to grow. Pathfinders are increasingly offering personal budgets to all new EHC plan-holders with a resultant increase in numbers. We have also recently supported the development and publication of an implementation framework, for personal budgets for children and young people, by In Control and SQW, the pathfinder evaluators that are widely acknowledged to be the experts in this field.
We are therefore confident that we will have the knowledge and understanding to make the regulations ahead of the initial implementation of our reforms in September 2014, while accepting through my Amendment 271 that the House must have the opportunity to debate this issue further before we do so.
I turn to Amendments 176, 177 and 179. I completely agree with my noble friend Lady Sharp that schools, colleges and other institutions need to retain control where provision is delivered on their premises. I hope that Regulation 11 in the draft regulations to be made under Clause 49 reassures my noble friend, as it states:
“A local authority may not make a direct payment in respect of agreed provision which will be used or provided in a school or post-16 institution unless the head teacher, principal or the person occupying an equivalent position at the school or that institution agrees”.
Amendment 179 brings the issue of transparency to our attention. I agree that this is extremely important and is a key point of learning from the pathfinder programme, in relation to personal budgets. I hope that I can reassure my noble friend that we have made comprehensive provision in draft regulations and the draft code of practice.
Regulations to be made under Clause 30 will require that the local offer provides information about how to request an assessment for an EHC plan. The draft code of practice builds on this requirement and explains in section 5.2, on page 34, that this should include information about eligibility for personal budgets.
Draft regulations relating to Clause 49 set out the right of parents to request a review and require the local authority to provide in writing the reason for any decision to decline a request for a direct payment. Again, the draft code builds on this requirement. Section 7.12 states:
“The decision making process to establish and agree a budget should be clear and must be open to challenge, with parents able to request a review of decisions in relation to direct payments”.
With these reassurances, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Jones of Whitchurch
Can I just ask for a point of clarification? I thought that the Minister was beginning to say that he agreed with our Amendment 180. That would be lovely, but I just want to clarify the timescale on this. As I understand it, the pathfinders are due to finish in June next year. The Minister then said, I think, that a report would be written by September 2014. Is the idea that when the Houses reconvene in October 2014 they will have before them a report that we would then agree through an affirmative process before the personal budget regulations have gone ahead? That is my question; it is quite simple.
Baroness Sharp of Guildford
I am very grateful to the Minister for his reassurances, about the role that school or college principals might play when direct payments are proposed and it is not necessarily in the interests of either the child or economy and efficiency to proceed along that route, and that the process of decision-making will be an explicit one.
I am also glad to have the assurance that, when decisions are made, they will take account of the pathfinders and that the process will not be put into effect until the full evaluation has been made. I welcome government Amendment 269 implementing the recommendations of the Delegated Powers Committee relating to the positive agreement of the House that we should go forward with this. In the light of this, I beg leave to withdraw the amendment.
Earl Attlee
My Lords, I think that this may be a convenient moment for the Committee to adjourn.
The Deputy Chairman of Committees (Baroness Andrews) (Lab)
The Committee stands adjourned.