Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Baroness Walmsley Excerpts

Monday 16th January 2012 Grand Committee

[Baroness Walmsley]

My Lords, I very much welcome the order, which will provide considerably greater flexibility for families. Certainly, feedback on individual budgets in other areas has indicated a much greater level of satisfaction on the part of users and their families, so the order is very much to be welcomed. I am particularly proud of the work that my right honourable Liberal Democrat friend Sarah Teather has done on this area. I think that she has taken a great step forward in realising the Prime Minister’s objective of making the UK a very family-friendly country. We have a long way to go, but this is a good step in the right direction.

I would like to ask the Minister about assistive technologies and communication aids, but before doing so I had better declare an interest as a voluntary patron of the British Assistive Technology Association. The association is not just a trade organisation. As well as manufacturers of pieces of kit that help people with both sensory and physical disabilities, the association contains members who are part of the third sector, including organisations that buy pieces of kit to help people and advise on their use and professionals who work in that field. I do not ask these questions on their behalf, but this is how I know about the issues—I just want to explain that.

I notice that both the Explanatory Notes and the Minister’s speech referred to services rather than to pieces of kit. Sometimes, bits of machinery and bits of kit—or stuff—can contribute just as much as services, or the delivery of expertise by experts, to the quality of life of people with physical and sensory disabilities. The good thing and the bad thing about these pieces of kit is that the manufacturers are constantly improving them, so they are getting better and better all the time. Therefore, more and more ways are being found of helping people with disabilities to lead a very full life and to communicate. Of course, communication aids are so important because they provide people with a voice who did not have one before. Can you imagine what it is like not to be able to speak? People in this House would not like that at all. As these things are constantly being improved, it is often better not to buy them but to lease them so that, when improvements become available, the equipment can be given back in return for something better. Of course, sometimes the equipment becomes out of date and you cannot get spare parts any more, so you want to upgrade.

Therefore, I want to know from the Minister whether that sort of thing can be covered within these personal budgets. Can parents—or the young people themselves when they reach 16—choose to purchase equipment? Can they choose which equipment they want to purchase? Can they lease the equipment? Can they take on a service agreement to ensure that they always have the equipment available so that, when it breaks down, they can get someone round to sort it out so enabling them to keep their voice or their ability to get around or their ability to communicate with other people or their ability to work or to learn? All these things are very important to the lives of the people that we are talking about, and these pieces of kit help them tremendously.

I hope that the Minister will be able to help me on that.

[Lord Low of Dalston]

My Lords, I am extremely grateful to the Minister for writing to me personally to give me maximum notice of this debate, which has been brought on fairly quickly after the new year. I am not complaining about that. We asked the Minister to make debating the order a priority in the parliamentary timetable when the order-making power was inserted into the Bill on Report so that the proposals could be given the fullest opportunity to show their worth. It is therefore good that we have this early opportunity of scrutinising the order. Like the department, we want to get on with the pilots and evaluating them in order to understand how much substance, if any, there is in the concerns that have been expressed. It was nevertheless considerate of the Minister to give me maximum notice.

The Government have been very accommodating in the approach that they have adopted in the development of the order. In response to representations, they agreed that it should require the affirmative rather than the negative procedure. The sunset horizon has been reduced from five years to two years and the pilots will be undertaken only in pathfinder authorities or those that are piloting direct payments in health.

Some further safeguards asked for have also been introduced. In response to representations from the Special Educational Consortium, the order has been reworded with a view to ensuring that the receipt of a direct payment in no way threatens the statutory right of the child to receive the educational provisions set out in their statement and that the viability of specialist SEN services is not threatened by direct payments taking resources out of the system. Nevertheless, I confess to retaining a degree of scepticism about the Government's ability to ensure all of that and as to what will be the effect of direct payments in practice.

I hope that the Minister will not feel that, having been absent on the occasion when the order-making power was added to the Bill, I have turned up as a bit of a wet blanket as regards the general consensus established on a previous occasion and that he does not wish that I had stayed away again this time. I do not wish to be a wet blanket but just like the noble Lord, Lord Rix, I wish to draw attention to a number of concerns that need to be bottomed, which I believe the Minister is as keen to bottom as anybody.

Education is a universal service for all children. What will be the effect of resources being taken out of the system by way of direct payments? What will be the effect on other children with SEN who do not have direct payments? Will they see services reduced? What will be the effect on the ability of schools, colleges and local authorities whose responsibility it is to educate disabled children and children with SEN to plan for the coherent delivery of the relevant services?

I understand that all relevant statutory duties, such as the duty to provide or arrange special educational provision contained in Section 324 of the Education Act 1996, remain in place throughout the pilots. I also understand that the order includes a requirement in paragraphs 11(c) and 17(f)(i) that local authorities consider the potential adverse impact on other services that they provide or arrange for other children and young people in their areas and that they stop making direct payments if it becomes apparent that the payments are having such an impact. But direct payments take money out of the system. How can the Government be sure that this will not threaten the viability of specialist services? How can they be sure that giving responsibility to the parent instead of the local authority or school will not undermine the legal right of children to receive the provision that they are entitled to? The Government may say that they do not want these things to happen, but how can they ensure it?

There may be unintended consequences too. Some schools and local authorities may wash their hands of difficult children by encouraging parents to take a direct payment. Parents and young people may be encouraged to take a direct payment when assessments are unclear as to what they are entitled to, thus putting their ability to purchase the necessary support at risk. What if parents do not use the direct payment for the purpose for which it was intended? Parents do not always behave as responsibly as we would like. Of course, the local authority might be able to take them to court, but that is surely not where we want to end up.

The Special Educational Consortium is concerned that the Government have not fully considered the impact of resources for this universal service being taken away from schools and local authorities and being held by individuals. Careful thought will need to be given to the impact of parents or young people holding the budget. Direct payments held by parents and young people will inevitably interact with school and college finances and employment policies. This may have implications for the way schools and local authorities plan for the education of children with special educational needs. For example, if a parent employs a teaching assistant to work with their child in school, who will be responsible for managing that teaching assistant? Who ensures that the child’s teacher works collaboratively with the teaching assistant? Who is accountable for the education outcomes for the child, and ultimately how will schools’ ability to plan provision for all children with SEN be affected? Safeguards to ensure the sustainability of specialist support services, particularly for children not eligible for direct payments, need to be copper-bottomed.

There are other concerns, such as how the Government will ensure that the provisions set out in the statement are properly quantified and specified before a direct payment is made. I will not go on listing them in more tedious detail now. The department is aware of these concerns from the Special Educational Consortium. They clearly place a premium on the evaluation of the pilots for bottoming the extensive range of issues to which this order gives rise.

I was greatly encouraged by the way in which the Minister was seized of the importance of evaluation when the order-making power was inserted into the Bill on Report and, most important of all, that he clearly saw the importance of approaching the evaluation with an open mind and not with a preconceived idea about what should come out of the pilots. The fact that the department is also working so co-operatively with the Special Educational Consortium on the development of the order and, I hope, with the development of the pilots is very much to be welcomed and is very encouraging. Undertaken in that spirit, I greatly look forward to the results of the evaluation.

--- Later in debate ---

Again, I understand the points that the noble Lord raises on the interaction of direct payments with school and college finances, and employment policies. We are developing an advice note for pathfinder areas that will cover practical details on implementation, including particular considerations where the provision is to be made in schools. That is one core area that we want to see and test as we work through the pilots in the pathfinder areas, so that we have more understanding of how direct payments can work within school, college and local authority roles and responsibilities for education provision. I understand the point and while I do not have a clear answer now, the whole purpose of the pilot is to try to give us a clear answer—an evaluation which answers those concerns—and then we can decide how best to move on.

[Baroness Walmsley]

What is the mechanism for challenging a local authority’s decision about this? Let us say that a local authority says either, “You, Parent A, are not capable of handling an individual budget, therefore we are not going to give it to you”, or, “We are not going to give you an individual budget because we think it would have a damaging effect on our ability to deliver services more widely”. There are two possible reasons there where they may make that decision. Is it the local authority ombudsman to whom the parent would go if they were not satisfied with that decision, or is there some other challenge mechanism?

[Lord Hill of Oareford]

Yes, my Lords, there is, and my noble friend raises a good question. It seems that the order allows the local authority to review the decision that is taken. I may need to write generally on the arrangements for the review of decisions. Our view is that we have sufficiently robust arrangements for the purposes of the pilot, so they are in place, but I think I will need to follow up with my noble friend on precisely what they are. However, on the kind of issue that my noble friend spoke about—whether it has worked properly and whether a fair process has been carried out—we certainly think that, again, the evaluation will enable us to see whether the processes that have been put in place are working. If I have more particulars, I will write to my noble friend on that.