Children and Families Bill

Debate between Baroness Whitaker and Baroness Jones of Whitchurch

Monday 28th October 2013 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, our Amendment 73 is in this group, and it has the same intent as that of the noble Lord, Lord Ramsbotham, and the amendment from the noble Baroness, Lady Greengross. We have just gone about it in a slightly different way. The issue is one of what should be classified as special educational provision. As the noble Lord, Lord Ramsbotham, quite rightly pointed out, this is important because, by its nature, this determines what issues parents can take to appeal, and we should make that classification as broad as we possibly can.

We have debated before in Grand Committee how broad a definition we are going to apply to special educational needs, and that we believe that a whole tranche of disabled children are not classified and included in that. This issue touches on that somewhat as well. As we said at the time, it is important to get a standard classification of special educational needs and disability included throughout the Bill. We have not tabled amendments to this clause to take that on board; however, earlier clauses ought to clarify it more clearly.

Clause 21(5) sets out that healthcare provision and social care provision can be classified as special educational needs if they are,

“made wholly or mainly for the purposes of … education or training”.

However, according to many in the sector, backed up by the legal advice that we have received, there is a concern that the new definition of the phrase “wholly or mainly” sets a higher threshold than that which exists. We have heard from, among others, David Wolfe QC, the adviser mentioned by the noble Lord, Lord Ramsbotham. That is why our amendment would remove “wholly or mainly” from the clause.

The initial draft of the Bill did not include a requirement for educational provision to be wholly or mainly for educational purposes. It stated that anything provided by the health authority was health provision and that anything provided by social care was, similarly, social care provision and therefore not enforceable or appealable to the tribunal. The new wording was introduced as a result of opposition to the initial draft but we still do not feel that it deals with this problem. I think the Minister will be aware that there is considerable concern about this issue, particularly around therapies such as those for speech and language, which may be classed simply as health service provision under this clause and therefore, apart from anything else, not appealable.

In addition, we have also received the following legal advice:

“Following case law dating back to 1989 the general position has been that any provision which is directly related to an educational need can be classified as educational or medical and it is for the tribunal to decide. Guidance has been given that speech and language therapy will normally be considered educational because of its importance in communication, whereas other therapies such as occupational therapy vary according to the type of difficulty the child has and how far the therapy relates to an educational objective. Tribunals have consistently held that where a provision has a beneficial educational aspect, and is directly related to the child’s educational needs, it can be described as educational provision and specified in the statement. This aspect needs to be set out in the current bill if parents’ rights are not to be eroded. The current wording set a higher bar and reduces the rights of the child and parent”.

This issue was raised briefly in the Commons by the Conservative MP Robert Buckland. At the time, the Minister there replied that,

“the clause maintains the existing right of appeal to the tribunal for special educational provision so that parents will not lose their current protections”.—[Official Report, Commons, Children and Families Bill Committee, 19/3/13; col. 372.]

However, this is not what the experts are telling us, so it would be extremely helpful if the Minister could clarify this and work with us to find alternative wording which would ensure that we are not raising the bar and eroding parents’ rights. In his letter to us following Second Reading the noble Lord, Lord Nash, wrote that,

“the Government recognises the concerns and is looking for ways to address them”.

I would be really grateful if he could tell us how far he has got in looking at ways to address these concerns, and whether he would now be prepared to find an alternative form of wording to address this issue.

[Baroness Whitaker (Lab)]

My Lords, I support my noble friend’s amendment very warmly. I think that the wording of the Bill must be changed because, although I understand that the Government consider that they can rely on case law to establish the primacy of the education purpose, their own draft SEN code suggests that more firmness is needed. I quote:

“Health or social care provision made wholly or mainly for the purposes of education or training must be treated as special education provision”.

Noble Lords might say that that is all we are asking, but the fact that they have to put “must” in the code suggests to me that there is an element of doubt. I suggest that certainty is what is required in the law, and the code simply amplifies the law.