Children and Families Bill

Baroness Howe of Idlicote Excerpts

Wednesday 30th October 2013 Grand Committee

Both amendments are important because they are about elaborating on what should be in the local offer. I am also interested in the other amendments in this group but, for now, I beg to move.

[Baroness Howe of Idlicote (CB)]

My Lords, we have heard a lot about the local offer and I suspect that we will hear a lot more. The local offer sets out in one place information about provisions that a local authority expects to be available for children and young people in their area with special educational needs, including those who do not have an education, health and care plan.

The two amendments that I have tabled are about ensuring that the local offer includes information about how schools and local authorities cater for disabled children in their area. This should include how schools and local authorities are satisfying their statutory obligations under the Equality Act 2010 to disabled pupils. That duty has already been mentioned by the noble Baroness, Lady Hughes, so she will understand how important it is to ensure that this duty is fully taken on and included in the Bill. If adopted, my amendments would ensure that duties owed to disabled pupils by the Equality Act were recognised and carried out by schools.

Amendment 106A proposes to insert at the end of line 6 on page 24,

“a summary of relevant information from the SEN information reports for schools in the local authority, as under section 65”.

This first amendment will ensure that the local offer includes the information required by Clause 65. Clause 65(3) is particularly relevant for disabled pupils, as it provides a requirement that the special educational needs information report, which has to be produced by all mainstream schools, includes information on,

“the arrangements for the admission of disabled persons as pupils”,

and,

“the steps taken to prevent disabled pupils from being treated less favourably than other pupils”.

“Mainstream schools” includes schools maintained by the local authority, academies and free schools. The report must also include the facilities provided to assist access to the school by disabled pupils and information about the accessibility plan that the school is required to publish.

The accessibility plan demonstrates how the school is increasing the access of disabled pupils to the school curriculum, improving the physical environment and improving information about the school for disabled pupils and their parents. The requirement to develop accessibility plans applies to all schools and Ofsted can look at the performance of these duties by schools.

Amendment 106B, the second of these amendments, proposes the insertion in Clause 30, at the end of line 36 on page 24, of the words,

“the strategy prepared by the local authority under paragraphs 1 and 2 of Schedule 10 to the Equality Act 2010 (accessibility strategy)”.

This amendment will ensure that the accessibility strategy prepared by the local authority will be included in the local offer. The accessibility strategy is a written document that specifies how maintained schools in the local authority area will increase disabled pupils’ access to the school curriculum, improve the physical environment for disabled pupils and improve information for them. Strategies must take into account the preferences expressed by pupils and their parents and should be reviewed regularly. Local authorities must have regard to the need to allocate adequate resources for the implementation of the strategy.

I very much hope that the Minister will understand and accept the importance of making clear to everyone just how vital the Equality Act is in ensuring that all the things that we want, and the Government want, are actually carried through. I hope that, under those circumstances, the Minister will feel able to accept these amendments, no doubt with a little refinement on their own part, and make them part of the Bill.

[Baroness Brinton]

My Lords, my noble friend Lady Sharp is not able to be in her place at the moment so, in her absence, I am speaking to the amendment in her name, Amendment 106. This is a probing amendment intended to obtain reassurances from Ministers that the entitlements of children and young people with SEN and their families will not be weakened by the passage of the Bill or by the revision of the statutory SEN code of practice.

The local offer, as currently described in Clause 30, imposes a significantly weaker and more narrowly defined duty on local authorities than the equivalent provision in the Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001, which remain in force. These regulations set out what information a local authority must provide, including, among other things, requirements to provide information about the action that the local authority is taking to promote high standards of education for children with SEN, and what action the local authority is taking to encourage schools in their area to share best practice in making provision for children with SEN. There must also be information about the general arrangements, including any plans, objectives and timescales for: monitoring the admission of children with SEN—whether or not they have a statement—to schools in their area; providing support to schools in the area with regard to making special educational provision for children with SEN; auditing, planning, monitoring and reviewing provision for children with SEN in their area; securing training, advice and support for staff working in their area with children with SEN; and securing training, advice and support for staff working in their area for children with SEN.

The information that I have just listed is important for parents, but it also incorporates a set of important principles in relation to education for pupils with SEN: the recognition that pupils with SEN need high standards of provision; that these standards should be regularly monitored and reviewed; that teachers need training, advice and support; and that schools should collaborate to share good practice.

Clause 30 merely provides that regulations may make provision about the information to be included in an authority’s local offer. It is important that the information listed in the 2001 regulations is collected and publicised by local authorities. The local offer should carry this forward into the new framework. It is not clear that this will be the case with the loose wording of the Bill. As far as I can see, there is nothing proposed in the code of conduct which would impose these duties on local authorities. Are the 2001 regulations going to be carried forward? What is the position? I would be grateful if the Minister could clarify the situation.

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[Baroness Jones of Whitchurch]

My Lords, I shall speak to our Amendment 124 in this group and support the arguments which the noble Lord, Lord Low, has put forward in support of his amendment.

We began this debate about inclusion and access to mainstream education in Committee last week, but I am very pleased to have the opportunity to return to some of those issues. During that debate, the Minister sought to reassure us that duties were already in existence, including under the Equality Act 2010, to prevent discrimination against disabled people and that that addressed some of the issues about which we were concerned. However, I support the amendments that have been tabled by the noble Baroness, Lady Howe, because she has identified some of the remaining contradictions between the Equality Act and some of the duties that this Bill is spelling out. It is important that those issues are bottomed out, and I support her amendments.

We remain concerned that, by agreeing to this wording unamended, we will be introducing a get-out clause which would allow schools to duck out of their responsibilities to provide mainstream education when requested. As the noble Lord, Lord Low, pointed out, Clause 33 places a duty on local authorities to ensure that children and young people with an EHC plan are placed in mainstream education. There are two important caveats. The first is if a place is incompatible with the wishes of the child’s parents or the young person. Obviously we support that caveat. As we have said before, parental choice and the views of young people are crucial in identifying the best educational provision for a particular child.

It seems to us that the second caveat goes against the whole spirit and intent of the Bill. Clause 33(2)(b) provides that local authorities can opt out of providing mainstream education if it is incompatible with,

“the provision of efficient education for others”.

We feel that we should have moved on from that wording at this stage.

The wording raises questions about who defines what level of disruption is incompatible with efficient education. For example, could it be argued that any child with health issues in a school environment could potentially interfere with the efficient education of others? Or could any child whose educational needs required additional attention from a teacher arguably be taking the teacher’s time away from others, thereby affecting their education? How far are we going to apply this wording?

The Minister said that the Equality Act protects against discrimination, but is there not something rather worrying about defining disabled children’s rights by the level of inconvenience that they might cause? Therefore, our amendment would remove that reference and replace it with a much more positive commitment to meet the specific needs of children and young people.

Reference has been made to the draft code of conduct. It appears to me that it adds a further reason why a request for mainstream education could be refused, and that is the incompatibility with the efficient use of resources. As I understand it, this used to be a factor that schools could fall back on, basically arguing that it was too costly to educate children with SEN in mainstream schools. However, it was removed by the previous Government in 2001, so it now appears that we are going backwards, making it more difficult to access mainstream education.

We believe that ensuring that the needs and wishes of children, young people and their families ought to be the only justifiable basis on which they should be placed in a non-mainstream setting. We acknowledge that many mainstream schools still lack the capacity to provide a good education to children with certain learning difficulties and disabilities, but surely the solution is to address those failings in a structured and positive way within a given timetable, not to give those schools an opt-out. However, we have to accept that some schools are reluctant to admit children with special educational needs or to take the steps necessary to modify their facilities, particularly with the pressure of league tables uppermost in their minds. There is no doubt that some academies and free schools are seeking to operate more stringent admissions policies. This comes back to the issues raised by the Equality and Human Rights Commission about the alignment of the reasonable adjustment duty with the duties in the Bill. We need to make sure that they are properly aligned. Our concern is that the provisions in the Bill and the draft code of conduct give schools an excuse not to make any changes.

At Second Reading, this issue was addressed with some passion by several noble Lords, including the noble Baroness, Lady Grey-Thompson. We feel there is a need to address the failings in the Bill and the code in this respect. The Green Paper referred to creating a bias towards inclusion. If we are serious about that, we should remove Clause 33(2)(b). In his letter to Peers after Second Reading, the Minister referred to the fact that the Bill already provides for the wishes of children, young people and their parents to be taken into account and, of course, it does, but that misses the point if their wishes can be overridden by the needs of so-called efficient education for others or the efficient use of resources. I hope the Minister will take these issues seriously and look again at what we believe is increasingly backward-looking wording which goes so far against the spirit and intent of the Bill and that we can come back with a more positive form of words.

[Baroness Howe of Idlicote]

My Lords, I have three amendments in this group, two of them on equality rights. I shall start with Amendment 125, which is a probing amendment regarding a concern of the Association of Educational Psychologists. There are two more amendments later, but I want to deal with this amendment because in answering the Minister may be able to give reassurance.

Currently any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps ensure that children and young people are not inappropriately placed in special schools. The concern is that Clause 34(3) allows special academies, including free schools, to admit children or young people permanently without them having had their special educational needs statutorily assessed or an EHC plan having been put in place for them. This proposal seems to undermine the principle that a mainstream school must be able to make provision for all children without a statement or plan and for most children with a statement or plan.

Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice, such as a report from an educational psychologist, the concern is that there is no formal role for the local authority in this process. The worry is that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young persons with EHC plans, extremely difficult.

If this proposal went through, there would be a danger that mainstream special schools would be incentivised to persuade parents that their child would be better off in a special school just because they do not want them in their schools. This would take us back to the situation that existed before the Education Act 1981. There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this clause remains, I would question the point of mainstream places within a special school.

I fear that this proposal would result in medical labels determining whether a child secures a place in a special academy. If a special academy had been set up for a particular type of SEN—for example, SpLD or ASD/Asperger’s—would it result in an increase in the number of children being diagnosed with that condition? How can the Government ensure that there is a framework process so that inappropriate placements do not occur?

There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would educational psychologists’ views be protected and advocated? How would places be allocated within school year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they are making adequate progress?

This amendment has been tabled because it is hoped that the Minister will look again at the proposals and help to allay serious concerns in the SEN sector that this clause could result in children and young people being inappropriately placed in special schools. Ideally, the Association of Educational Psychologists would like to see the clause amended so that special academies are not able to admit children and young people without an EHC plan. I hope that when the Minister replies he will be able to dispel those doubts.

I turn now to Clause 33, which relates to children and young people with education, health and care plans, and Clause 34, which relates to children and young people with special educational needs but no education, health and care plans. Amendment 124A seeks to insert a new subsection in Clause 33 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

Amendment 126A seeks to insert a new subsection in Clause 34 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

The amendments are about ensuring that schools and local authorities are fully aware of the reasonable adjustments duty owed by schools to disabled pupils where the child has special educational needs. Some disabled pupils will have special educational needs and may be receiving support via school-based special educational needs provision or have an educational, health and care plan under the new arrangements. Just because a disabled pupil has special educational needs or an education, health and care plan, it does not take away a school’s duty to make reasonable adjustments for them.

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[Baroness Sharp of Guildford (LD)]

My Lords, my name is attached to Amendment 125. I was slightly surprised by this amendment and spent some time puzzling as to what the noble Baroness, Lady Howe, meant by it. I am not totally sure when my name got attached to it but it did and I therefore briefed myself accordingly. I think I am right that the noble Baroness previously argued for the deletion of Clause 34(9) rather than subsection (3). She argued against special academies and so forth. Subsection (3) says:

“The child or young person may be educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State”.

As I understand it, the noble Baroness did not argue about that subsection at all.

Nevertheless, I have a question about this area. I really saw this as a probing amendment because I cannot quite see how it is compatible with Clause 59, which deals with the local authority paying fees for special educational provision and makes it quite clear. My reading of Clause 34 is that it effectively says that no child may go to a special school except in very special circumstances and when everybody else agrees. Then Clause 59 makes it clear that a child without an EHC plan may be at a special school and paid for by a local authority. Yet it may be that that child, without an EHC plan and paid for by a local authority, needs to be assessed and sent to a special school. It strikes me that there is an incompatibility between those two.

[Baroness Howe of Idlicote]

To make it clear, I suggested that it was a probing amendment. As it had been tabled, I felt it was my duty to put the case given to me. I am sorry that the noble Baroness and I did not have time to discuss it.

[Baroness Sharp of Guildford]

I am sorry about that, too. While I am on my feet, I should say that I have a great deal of sympathy with the other amendments in this group. In particular, I sympathise with the arguments put forward by the noble Lord, Lord Low. In some ways, my preference would be for Amendment 124 because it seems to me that there are occasions when perhaps a special school is appropriate. The wording of Amendment 124 makes it absolutely clear that, when it is in the interests of,

“the specific needs of the child or young person”,

this might be the case. That is why I think that that amendment has some merit. I also very much support the amendments put forward by the noble Baroness, Lady Howe, concerning the Equality Act. I think that it is very important that we make it quite clear that this Bill in no sense overrides the responsibilities of local authorities under the Equality Act.