Children and Families Bill

Baroness Sharp of Guildford Excerpts

Wednesday 30th October 2013 Grand Committee

[Baroness Sharp of Guildford (LD)]

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

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

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

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

[Baroness Howe of Idlicote]

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

[Baroness Sharp of Guildford]

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

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

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

[Lord Nash]

I thank noble Lords for their amendments on inclusive provision. This is the second debate that we have had on the principle of inclusion. Today’s debate has focused on how decisions are made about where individual children and young people with EHC plans are taught. As I said in responding to our earlier debate, our aim with this Bill is to build on what has gone before and to create a new framework that improves both support for children and young people so that they achieve better outcomes and choice for parents and young people.

I will take Amendments 123A and 124, from the noble Lord, Lord Low, and the noble Baronesses, Lady Hughes and Lady Jones, together, as they both relate to the factors that local authorities should take into account when naming an education setting in a child or young person’s EHC plan, where no request has been made for a particular institution or the parent or young person’s request for one has not been met. The statutory provisions in the Bill are designed to ensure that a mainstream place is considered thoroughly and properly, recognising that, with the right support, children and young people with special educational needs are successfully supported in mainstream settings. They also recognise that there will be occasions where a child’s inclusion in a mainstream setting would significantly impact on the education of others, whose interests should also be safeguarded. This could occur, for example, when the extremely challenging and disruptive behaviour of a child or young person could not be managed. The provision for local authorities to consider the efficient education of others is important in this respect.

I understand concerns about this condition being used indiscriminately. Clause 33(3) and (4) guard against this. A local authority can only rely on it if there are no reasonable steps that could be taken to prevent the placement of the child or young person being incompatible with the efficient education of others. In section 7.11 of the draft SEN code of practice, we set out a number of examples of reasonable steps that can be taken to support inclusion. I believe that provision on meeting the specific needs of the child should not be the preserve of a single clause. It is at the heart of Part 3 and is reflected in Clause 19 on general principles, Clause 36 on assessments and EHC plans, Clause 42 on duties to secure provision in EHC plans and Clause 62 on the duty on schools to use their best endeavours to meet children’s needs.

Regarding the concern of the noble Lord, Lord Low, that the Bill gives FE colleges a get-out clause by allowing them to refuse entry to disabled students that they previously would have accepted in line with their duties under the Equality Act, I can assure noble Lords that the Equality Act 2010 will continue to apply in full to colleges, and that they must continue to make reasonable adjustments to support the participation of disabled young people. Nothing in this Bill overrides these very important duties imposed by the Equality Act.

We believe that the principle behind Clause 33 is the right one. Young people with EHC plans should have the right to be educated in a mainstream setting if that is what they want. This Bill, for the first time, gives young people the right to say where they want to study, by requesting that a particular school or college is named in their EHC plan.

I understand the motivation for Amendments 124A and 126A from the noble Baroness, Lady Howe. During our helpful debate on disabled children and young people last Wednesday, I made it clear that we had drawn attention to the Equality Act duties in the SEN code of practice, in Chapters 1 and 6, and referred to other relevant guidance on those duties. We recognise the importance of making appropriate links between SEN and the Equality Act duties in the code of practice, and in last Wednesday’s debate I undertook to look again at the scope for improving the draft code of practice on this. I hope that that reassures the noble Baroness, Lady Howe.