Children and Families Bill

Baroness Hughes of Stretford Excerpts

Monday 4th November 2013 Grand Committee

[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.

--- Later in debate ---

[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.