Schools (Specification and Disposal of Articles) Regulations 2012
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, these regulations, which were considered in another place by the First Delegated Legislation Committee on 28 February, take us back to some of our debates about behaviour during the passage of the Education Act 2011. They are separate from the provisions in the Education Act that we discussed at some length in this Room last summer but they are part of our efforts to make sure that schools can provide calm and safe environments in which teachers can teach and pupils can learn.
The Government first announced our intention to strengthen teachers’ powers to search pupils, including making these regulations and giving teachers a more general search power, in a Written Ministerial Statement on 7 July 2010. Then, in our schools White Paper, published in November 2010, we said that we wanted to make sure that teachers and head teachers,
“can establish a culture of respect and safety, with zero tolerance of bullying, clear boundaries, good pastoral care and early intervention to address problems”.
Strengthening teachers’ powers to search is an important part of this process. It means that they have the powers they need to maintain and promote good behaviour in their school.
Perhaps I may set out briefly what these powers mean in practice. Authorised members of school staff can already search for knives and weapons, alcohol and illegal drugs, and they can also search for stolen items. These powers were introduced as a result of the Apprenticeships, Schools, Children and Learning Act 2009. New general search powers included in Section 2 of the Education Act 2011 extend these powers further. From 1 April, head teachers will be able to authorise staff to search pupils for any article which has been, or is likely to be, used to commit an offence or cause harm or damage to property. Authorised school staff will also be able to search for items that are banned by the school and which are identified in the school’s own rules as items that may be searched for.
The regulations that we are discussing today build on the existing provisions simply by adding tobacco and cigarette papers, pornographic images and fireworks to the list of prohibited items. I think we would all agree that none of these items should have a place in our schools. We think that in the interests of safety and for the avoidance of doubt it is necessary for teachers to have the power to search for them, confiscate them and dispose of them appropriately.
We think that giving school staff the ability to search pupils for tobacco and to confiscate it will help to protect the health of pupils. Potential hazards are obviously involved in taking fireworks into school. That is why we want to provide school staff with a specific power to search pupils for fireworks and to be able to confiscate them.
The purpose of including pornography is to ensure that schools can take effective steps to deal with the possession or distribution of pornography by their pupils. Searches could be made for any item that authorised staff members have reasonable grounds for suspecting contained such an image, including books, magazines or electronic devices. For example, if a teacher reasonably suspects that a pupil has a pornographic image on their mobile phone, the regulations would enable the teacher to search for that phone and to search its content for the pornographic image. This is a sensible approach since electronic devices are increasingly replacing books and magazines.
Some of your Lordships may have concerns about examining the content of electronic devices and the risk that staff may, for example, access data that belong to the parents. The fact that a pupil claims that the device is not theirs does not prevent staff examining it. However, in order to examine it they must have reasonable grounds for suspecting that a device contains a pornographic image. Revised departmental advice to schools will explain teachers’ obligations under Article 8 of the European Convention on Human Rights and remind them that pupils have a right to expect a reasonable level of personal privacy. The revised advice will be published on 1 April.
The regulations also set out how the additional prohibited items should be disposed of. School staff can keep or dispose of tobacco and fireworks. Giving staff the flexibility to decide whether to retain or dispose of an item means that they will have discretion to decide on the most appropriate course of action to take in any given circumstance. Pornographic images may be disposed of, unless their possession constitutes a specified offence—for example, if they are extreme or child pornography—in which case they must be handed to the police as soon as possible. Where the image is found on an electronic device, this could mean deleting the image or retaining it so that the article that contains the image can be delivered to the police. This approach is consistent with that taken in the Apprenticeships, Skills, Children and Learning Act 2009 in respect of the disposal of illegal drugs and stolen items.
The Government’s role is to give schools the freedom and support that they need to provide a safe and structured environment. Strengthening teachers’ powers to search for, confiscate and dispose of a range of disruptive items is a key part of this. The regulations specifically identify tobacco, fireworks and pornographic images as items that may be searched for. The person conducting the search would be able to use such force as is reasonable under the circumstances to search for these items if they judged it necessary to do so. The Government believe that given the intrinsically harmful nature of these items it is necessary to identify them specifically in regulations. This builds on the approach taken by the previous Government and will mean that teachers’ power to search for them is beyond doubt and does not rely on the pupil’s intention in having the item or on the item being banned by the school rules. I commend the regulations to the Committee.
Baroness Walmsley
My Lords, while I support the coalition commitment to giving heads and teachers the powers that they need to ensure discipline in the classroom and promote good behaviour, I cannot resist the opportunity that this statutory instrument gives me briefly to restate an opinion that I expressed many times during the passage of the Education Act 2011. This commitment is much better achieved by good-quality teacher training and good control in the classroom than by any extension of the powers to search. Also, searching of pupils should always be done with a witness and, above a certain age, should always be carried out by someone of the same gender. However, having not resisted the opportunity to say that again—I suppose there is some difference between the two parties in the coalition—I support the Government’s approach.
Looking at the regulations themselves, I notice that in Regulation 3 the items listed include tobacco and cigarette papers. Next to that I have written “health”. Item (b) is “a firework”, next to which I have written “safety”, while item (c) is “a pornographic image”, next to which I have written “equality, respect, bullying and violence”. The great big bracket that links all three together is PSHE. Therefore, I wonder whether the Minister can tell us a little about how the internal review of PSHE is going on. This is quite relevant to this regulation. It would be nice to think that if in a lawful search of pupils in schools, following implementation at the beginning of April, any of those dangerous items were found on them, they would be given extra PSHE. An understanding of the dangers inherent in having all those items in school is covered by good quality PSHE education.
I have one other point for the Minister. The department’s guidance, Screening, Searching and Confiscation: Advice for Head Teachers, Staff and Governing Bodies, is to be updated. Will he confirm that it will contain advice on children with special needs—for example, children with autism or those who the school knows may have been subjected to physical or sexual abuse? The approach of an adult to such children could cause rather outrageous behaviour which is not the child’s fault and might escalate a situation which a little understanding could prevent. It is important that teachers understand that if they are going to search children who have or have had those problems, they need to be cautious in doing so, even though it is lawful and legitimate.
Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, during the passage of the Education Act last year, we discussed the creation of the new 16-19 and alternative provision academies. As part of those deliberations, we agreed to powers allowing the Secretary of State to make further consequential amendments necessary to create a legal framework for those new institutions. At that time, I assured noble Lords that any such changes to primary legislation would be made through the affirmative procedure and therefore allow for proper scrutiny. The order we are debating makes those further consequential amendments to the primary legislation.
I am grateful to both the Joint Committee on Statutory Instruments and the Merits Committee for their careful consideration of the regulations. Noble Lords will know that neither committee commented or thought that the House’s attention should be drawn to these regulations.
There are two main purposes to the order: first, to extend to part-time or very small alternative provision academies the same legislation as applies to full-time and mainstream academies; and, secondly, to extend to alternative provision academies the same rules on religious designation as apply to PRUs—namely, that they cannot have a religious designation. Most of the amendments that the order seeks to make are to ensure that legislation that already applies to full-time alternative provision academies and mainstream academies applies equally to part-time or very small alternative provision academies. Academies are defined in legislation as independent schools, and the definition of an independent school is that it is non-maintained and provides full-time education for at least five pupils of compulsory school age, one child with a statement or one looked-after child. Given that quite a lot of alternative provision is part-time or full-time for fewer than five pupils, without these amendments alternative provision academies would not be subject to the independent schools legislation that applies to other academies.
I give just a couple of examples. Without the amendment to the Education Act 1996 in paragraph 5 of the schedule to the order, a part-time or small alterative provision academy would not be legally required to give access to a person authorised by the local authority to monitor provision for statemented pupils. Without the amendment in paragraph 21 to the Safeguarding Vulnerable Groups Act 2006, an individual would not be required to register with the Independent Safeguarding Authority to become proprietor of a part-time or small alternative provision academy.
The remaining amendments in paragraphs 9 and 28 of the schedule to the draft order relate to the religious designation and religious ethos of a school. Paragraph 9 will make alternative provision academies unable to be designated as schools that have a religious character—in line with pupil referral units.
Why are AP academies and PRUs treated differently from mainstream schools? Unlike the mainstream school system, they work on a basis whereby places are commissioned by local authorities and schools, rather than selected by parental choice. This is to help overcome a specific issue or need, after which the child would return to mainstream education, as appropriate. In those circumstances, religious designation does not make sense. Alternative provision academies will be able to have a distinct ethos based on a set of morals that are aligned with a particular faith. However, paragraph 28 provides that where alternative provision academies are registered as having a religious ethos, they will not be able to discriminate against pupils in their intake or school services on the basis of religion or belief, as independent schools can.
We have frequently discussed the failings of the current alternative provision sector, such as the poor educational results. Less than 1.5 per cent of pupils achieve five or more GCSEs at grades A* to C. We have also discussed the knock-on effect on the rest of a young person’s life. Noble Lords will be aware of the recent report on alternative provision published by the Government’s behaviour adviser, Charlie Taylor, who describes alternative provision as,
“a flawed system that fails to provide suitable education and proper accountability for some of the most vulnerable children in the country”.
It is for this reason that the Government are giving all alternative provision, including pupil referral units, the opportunity to take advantage of the greater freedoms and benefits of academy status, and thereby—we hope—to raise standards. Charlie Taylor argues, as would I, that the principles underlying the Government’s education reforms of increasing autonomy, improving the quality of teaching and strengthening accountability should improve alternative provision and, ultimately, the lives of those children who need it.
I know that everyone here wants to make sure that every child has a high-quality education. It is the responsibility of all of us, including the Government, to do everything that we can to ensure that they get it. It is in that spirit that I commend these regulations to the Committee. I beg to move.
Baroness Walmsley
My Lords, I very much support this statutory instrument. I am very excited about the potential of these new academies. Whether the new providers coming in to the system will be able to provide high-quality, more specialised alternative provision for young people remains to be seen, but it is likely that they will.
The 16-19 academies, particularly those that focus on science and technology, engineering and maths, are getting employers involved. Big companies are getting very involved in the applications to new academies, and that is a very good thing, especially to help them take in young people doing apprenticeships based in these 16-19 academies and working closely with the employer. That is a good thing.
I notice from the Explanatory Memorandum that there is no guidance specific to the amendments, given that they are consequential, but it comments that guidance on how to apply to become an alternative provision free school for existing non-maintained new providers is available on the DfE website. I gave the Minister notice today as we came into the Committee that I would ask him to look at the guidelines to make sure that they are not too tight and do not thereby exclude organisations that we really need in order to provide for certain special kinds of children—for example, the Red Balloon organisation, which provides for children who have been severely bullied and are self-excluding from school. These are young people who do not necessarily have a special educational need or a physical disability. Very often they are extremely bright but cannot go to school because they have been severely bullied. The guidance as it stands on applications to become a free school excludes organisations such as that, and possibly others that I do not know about. Will the Minister look at the guidance to see whether it can be a little more flexible so as not to exclude such worthwhile organisations?
Baroness Hughes of Stretford
My Lords, as the Minister said, the regulations on alternative provision academies are consequential and therefore rather technical and limited. He described what they are seeking to do and I have no issues with either of those aspects. However, I would be grateful if the Minister took the opportunity to clarify three issues on the principle of alternative provision academies with regard to the implementation. I have questions in three areas. First, how will alternative provision academies work in practice in a local area? Secondly, what will the funding level be? Thirdly, how will accountability be applied, given that it cannot be applied in the same way as a mainstream school or academy?
On the first point, which at this stage is the most important, how will an APA work in practice in a local area? As the Minister said, currently the local authority ensures that there is sufficient provision in an alternative setting, a pupil referral unit, and that there are sufficient places available for the local schools in that area to place a child when a child needs placement outside mainstream education, whether because of illness, exclusion, behavioural problems or whatever. The pupil referral unit is the resource for all the other schools locally and takes referrals from those schools; by definition, it does not have a normal admission process. The objective, one hopes, is to return the child to a mainstream school, either the one that they left or another one, as soon as possible.
If a pupil referral unit becomes an alternative provision academy, it will, as the Minister said, have all the freedoms and independence that other academies have in law. I see the argument that those freedoms are necessary to raise standards in alternative provision, and it is certainly the case that in some of our alternative provision those standards are far too low, even taking into account the difficult circumstances of some of the children. However, if an alternative provision setting has all those freedoms, how will that work in practice? Who, for example, will commission the places in an alternative provision academy? Will it be other mainstream schools? Will it be the local authority? Will the APAs themselves be able to determine the level of provision—that is, the number of places—that they will provide in that academy? If so, will that necessarily match the level of need and demand from the other local schools? Under this new regime what obligation will the alternative provision academy have to accept children referred by other schools? Will they, as now, be obliged to accept them?
Presumably the APAs—independent establishments—will be funded according to the number of pupils they have. I am concerned that as independent units, dependent on that funding, there may be the development of a perverse incentive for APAs to hold on to pupils because that is where their funding is coming from, rather than as now—where there is no such funding relationship—returning those children as quickly as possible to their mainstream education. How will a pupil actually get out of an APA, and who will be responsible for ensuring that the decisions taken about that child—whether they stay in the APA, for how long, when they leave and where they go—are in that child’s best interests? What responsibility will the referring school have for monitoring that child’s progress, looking to the eventual outcome for that child and whether it is the best that could be? What responsibility will the local authority have, if any, for monitoring the progress of the children collectively in the APAs in their areas?
All of this, I am afraid, is still very unclear to me. I may have missed something, but it seems to me, and I am not against the principle, that we are changing very profoundly the dynamics of the relationship between alternative provision and mainstream schools, whether they are schools or academies. In making the alternative provision an academy, with all of those freedoms, it is not clear where the reciprocity will lie and who will be responsible for the children.
Briefly, I have two other points. One concerns funding. I think the Government have said that the funding will follow pupils into APAs and that it will be set at a high need level. This level has yet to be announced. Can the Minister say when this will be announced and how the level of funding will compare to that in mainstream schools?
The third point is also important. It is clear to me that the usual accountability measures for mainstream schools cannot apply in quite the same way here. How will APAs be held accountable for their children’s progress or lack of it? Are the Government considering, for example, a payment-by-results model, as they are within the criminal justice system? By what yardstick will children’s progress be measured? I agree with the Minister’s comment that children’s low levels of attainment in some alternative provision is lamentably low and we should not accept it. Equally, these children are often facing multiple problems, and they need significant amounts of help in overcoming the barriers to learning that those problems engender. I am not clear about how being in an independent academy will help children to access the level and quality of extra support they need, much of it from local authority children’s services and health services. In becoming an independent academy, the relationship between that provision and the local authority and the other children’s services will be changed quite fundamentally and will, necessarily, be more distant.
Those are my three concerns. I know there are a lot of questions there, and if the Minister cannot deal with all of them in detail, I am quite happy for him to write to me. The issues which I raised in the first group of questions about the new relationship, how that will work locally and who will be responsible for the child, are particularly important. If he cannot give me answers today, then perhaps later.
Children Act 2004 Information Database (England) (Revocation) Regulations 2012
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Baroness Walmsley
My Lords, I very much support the abolition of ContactPoint. Setting up a monumental database to cover every child in the country was a terrible waste of money. It had a danger of setting up a tick-box mentality, and there were safeguarding issues because it was quite widely accessible. We had to set up all kinds of safeguards for the people who had access to it. At least some of the savings should be spent on better training for professionals in the children’s workforce in how to work effectively with other professionals in the children’s workforce. That would be a far better way to spend the money, so I very much support the regulations.
Baroness Hughes of Stretford
Briefly, my Lords, as the Minister said, this is a very limited set of regulations in its intent. Given that ContactPoint has gone, I will not say anything about those regulations. I just put a couple of points on record in respect of the wider context that the Minister outlined.
First, as someone involved in the implementation of ContactPoint—sweating blood over it would not be too excessive a statement—it was never intended that it of itself could protect children. However, the recommendations from equally august people as Eileen Munro that we ought to try it came about because every inquiry, from Maria Colwell through to Jasmine Beckford, Victoria Climbié and even, to some extent, Baby Peter, identified to a lesser or greater extent the repeated failure, despite all those inquiries over 30 or 40 years, of professionals to share information properly.
One reason for that is that the local solutions that the Government are now asking local areas to put in place were always variable at best and, in many instances, were totally inadequate. They ran into the buffers of particular agencies—health is an example in many places—which felt that the law did not allow them to share information. It needs decisive government action to make it clear, as we tried to do, that those barriers do not exist. I do not mean this unkindly, but many professionals in local areas take a default position of, “We cannot share information”. That is what has happened and many children have lost their lives because of it.
There is a second, more practical reason, which ContactPoint, cumbersome though it might have been, was designed to address. For example, as a social worker, a referral from a school expressing concern about a child might land on your desk. If it is completely cold, your only contacts at that point are the school and the address of the child and their parents. You do not know, and it is often very difficult to find out, who else has been involved with or might have had concerns about that child in the recent past. It is very hard to get that information and put it together. You cannot call a case conference because you do not know who to call to it.
I must put on record that ContactPoint was never a database of information about children, as the noble Baroness, Lady Walmsley, maintained; it was a database of professionals. It was simply a list of the people who were connected to a child, such as their school, their GP and any other professional who had provided a service. If you, as a professional, got a referral about a concern, you could look on the database not for the details of the child—their background, history or circumstances—but for a list of professionals who had been involved in one way or another. That does not transgress that child’s human rights or reveal any information about that child. You would have to go to the professionals and ask for the information in order to get it. The database would never have given it to you.
Therefore, I do not think that local solutions will cut it. We have tried them over decades and they have not worked. Facilitation from government is needed. While I am very much in favour of building up professionals’ capacity to use their judgment more effectively, I disagree profoundly with Eileen Munro’s belief that that will simply happen without central government drive, commitment and clarification—not necessarily prescription. I simply say to the Minister: be very wary. I am not at all sure that what is being put in place instead of ContactPoint will prevent the death of another child through the failure of professionals to share information. We need a stronger system to ensure that that does not happen. Much has been tried over the years and nothing has yet worked. I am sorry that ContactPoint did not have a chance to prove whether it could have been better.
Education: Engineering
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Lord Hill of Oareford
My Lords, there are two separate issues. So far as the diploma generally is concerned, the reason that the Government have taken their decision is that we do not want to favour a particular kind of qualification that then receives additional funding to support its take-up over other qualifications. We want qualifications to be driven by the interests of the children and the awarding organisations. I completely agree with the points made about the importance of making sure that employers are involved with the development of qualifications, and it is my hope and belief that employers will work with the awarding organisations on the replacement of the principal learning element of the engineering diploma, which is the core issue at stake here, and that we will have well regarded and rigorous qualifications that will encourage the take-up of engineering, other technical subjects and vocational qualifications. The route to having more people taking these subjects is to make sure that they are properly valued by employers and everyone else.
Baroness Walmsley
My Lords, does my noble friend agree that the quality of teaching of engineering and other science and technology subjects is important? Perhaps he will he join me in condemning the following practice. A survey was sent out to assess the demand for a 16 to 19 STEM free school, which offered an iPad as a prize for completion, and gave only one option on the question as to whether the school would be the person’s first choice. That answer was yes. What is his department doing to identify such exaggerated demand, and will he specifically ban the offering of incentives and the use of unbalanced questions?
Lord Hill of Oareford
On the first point about the importance of STEM subjects and making sure that there are teachers able to teach them, as my noble friend will know, we are working hard to encourage the supply of those well qualified teachers. On her second point about the free school application, I am grateful to her for bringing it to my attention. It is the first time I have heard of it. I will refer it to the officials who will be carrying out the first sift of the applications, because the important test of evidence of demand must be genuine evidence of demand for a particular school.
Schools: Curriculum
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Lord Hill of Oareford
The point that I was trying to make—perhaps not very clearly—was that the precise point reached about curriculum materials in connection with the Equality Act in 2010 was that it would not lead to the conclusion which the noble Lord and I would want to avoid: that is, that materials to which individuals might take exception would be banned. We absolutely do not want to get to a point where that happens; those days—from whatever point of view that is taken—are fortunately past. Because of the exemption in the Equality Act, that situation does not arise.
Baroness Walmsley
My Lords, is not using this particular document in schools not completely contrary to the department’s guidance, which bans the use of inappropriate materials in sex education classes? In a country where three young men have recently been jailed for distributing leaflets promoting hatred of homosexual people, is it not clear that this document is inappropriate and therefore against the department’s guidance?
Lord Hill of Oareford
My noble friend is right that the Government issue clear guidance as to what materials are appropriate. If parents, pupils or others are concerned about the use to which particular materials are put, then they have every right to complain to the school, to us, or to the YPLA in the case of an academy. Ofsted can have a look, and we can take a view as to whether the material is being used inappropriately. If the material to which both my noble friends refer were being used to make the point that this kind of view is a minority view, that would seem to be a perfectly proper use to which it could be put.
Citizenship Education
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Lord Hill of Oareford
I agree with the noble and right reverend Lord about the importance of citizenship. Although the expert panel that reported to us in December suggests that citizenship should form part of the basic curriculum rather than the national curriculum, the first sentence in its report emphasises the importance of citizenship and I very much share that view. The issue—and this is true of a number of subjects that are subject to the national curriculum review—is the extent to which we need to be prescriptive around programmes of study. We will reflect upon what the expert panel has said and take other representations into account, and then bring forward our proposals in due course in the light of that.
Baroness Walmsley
My Lords, given that the Secretary of State for Education has said that citizenship courses are pregnant with powerful knowledge, is there any possible excuse for not insisting that every child has the right to study this subject, especially since we are trying to get more of them to use their vote?
Lord Hill of Oareford
I agree with my noble friend that we should want every child to be able to study citizenship. One aspect is the importance of knowing about voting, as my noble friend says, but there are many other benefits of learning about citizenship as well. The issue is not its importance as a subject but how it is best delivered in the curriculum.
Schools: Grammar Schools
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Lord Hill of Oareford
My Lords, I think, and hope, that the policy I have enunciated today is a consistent and pragmatic approach to how we can try to get more choice into the schools system for all kinds of schools. This change to the admissions code makes a modest contribution to that, but we think it is right that that should extend to grammar schools, as it does to all other types of school.
Baroness Walmsley
Will my noble friend join me in congratulating Bradford Girls’ Grammar School, which has decided to abandon selection, to become an academy and accept the statutory admissions code, and thereby to return to its roots—providing a good education to all girls locally?
Lord Hill of Oareford
I am very happy to join my noble friend in extending congratulations to that school and to all others. I am glad that they are able to take advantage of the freedoms that the Government have provided to choose academy status and to decide what they think is the best way forward. Clearly, we know that a large number of schools—I would point, obviously, to some academy schools—have done extremely well without selection. The Government’s priority is to make sure that children on free school meals are given a decent education and that we address the gap between rich and poor.
Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012
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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.
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.
Disabled People: Access to School Examination System
Baroness Walmsley Excerpts(12 years, 7 months ago)
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Lord Hill of Oareford
My Lords, I think that the point underlying the noble Lord’s question is the extent to which the Government have a view as to whether they are trying to lean, as it were, on parents regarding whether their children should be educated in mainstream or special schools. Our general view on that is that one should seek to leave those decisions as much as possible with parents. There are some cases where parents are keen on their children being in mainstream schools, because they benefit from that; there are other cases where special provision is clearly the sensible way. We want to have both. We are trying to increase the establishment of new special schools as part of our free schools policy, and we will continue to do that.
Baroness Walmsley
Could I ask my noble friend whether there are any sanctions available against schools that might be found to have been behaving wrongly in this matter? Do the Government intend to follow up and scrutinise the workings of this new guidance over a period of time to ensure that students with genuine disabilities are not penalised by the new wording of the guidance, and that they continue to get the help they need with their exams?
Lord Hill of Oareford
My Lords, as my noble friend says, it is extremely important that children with genuine disabilities get the extra leeway that they need. I do not believe that there are sanctions against schools that might be trying to push the rules of the system, but I will check that point. The responsibility for the overall integrity of the system rests with Ofqual, but I agree with her that we all need to make sure that this new guidance operates properly in the way that is intended. I am sure that my honourable friend Sarah Teather will be keeping such an eye on it.
Young Children: Language Development
Baroness Walmsley Excerpts(12 years, 7 months ago)
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Lord Hill of Oareford
My Lords, I agree entirely with the importance of reading and about the crucial role that parents play in that. It is not just a practical point; I cannot think of anything nicer than the bond between parent and child that comes through reading. I also agree that speaking to one's child is part of this as well. I agree with the importance of all those points.
Baroness Walmsley
My Lords, is the Minister aware of the research that shows that the part of the infant's brain that is responsible for speech and language development is the same part that is most affected by stress and violence when the baby is developing? What is the Government’s policy response to that research?
Lord Hill of Oareford
I am not aware of that research. I am sure my noble friend will be able to send it to me, and I will be very happy to look at it. The basic policy response of the Government on this is to improve the identification, first of all, and the assessment of these problems, to improve the support that we give to teachers and others working in early years settings, to work with voluntary organisations working with parents on this and to try to tackle it across a range of fronts.