Children and Families Bill

Baroness Wilkins Excerpts

Tuesday 7th January 2014 Lords Chamber

[Baroness Morris of Yardley (Lab)]

My Lords, I support the amendments and, in particular, will comment on Amendments 30, 31, and 33D.

The amendments tabled by my noble friend Lady Jones, which deal with the “expects to be” versus “which is” dilemma, just make sense, as I do not think that anyone here would not want parents to know what is being offered rather than what might be offered. The Government’s concern appears to be that something innovative might happen during the year that could be added to the offer, but the Minister might reflect that, if the offer was a living document so that it could be updated as an innovation came through, was proven to work, accepted as best practice and added to the local provision, in a digital age it would not be difficult to update the offer. The notion of “which is” gives far more certainty to users of the service than the words “expect to be”. In that respect, I very much support those amendments.

I just want to comment on the amendment of the noble Lord, Lord Low. I see both sides of this argument. We want local authorities to be free to innovate, to reach for the stars and to be the best they can, and we do not want the local offer in every local authority area to look exactly the same regardless of where you are in the country. Neither do we want to give permission to local authorities to go for a basic minimum standard. I accept the concerns laid out by the noble Baroness, Lady Eaton, and the noble Lord, Lord Storey, but we are still left with a problem.

The code of practice talks a lot about the quantity that should be in the local offer. There is a whole list of things that the code of practice guarantees will be there. What is missing from the whole debate is something that guarantees quality. Amendment 33D attempts to do that, and I want the Minister to respond to it. None of us wants poor quality, and I do not think that we would be in politics and would certainly not be legislators if we did not know that we have to ensure quality. It does not happen by itself or through a free-for-all, and it will not happen if we just leave it to local authorities to do their best. We want more than that. Minimum standards are not in the amendment. I do not want to fetter those local authorities who will provide very well; I want to protect those people who live in areas where the local authority does not do very well. I am concerned about how we protect people against poor provision falling below those minimum standards.

Normally, government takes one of three actions. It leaves it to the market—the noble Lord, Lord Storey, mentioned just now that if people do not like it, they will complain and changes will be made. I do not think that that will happen with the local offer. The only way that the market usually works is if people are free to go elsewhere. Then the poor provision that they did not want withers on the vine, vanishes, closes down and gets off the playing field. That is not what we want here. We do not want a local offer to be squeezed out of the market so that people have to go over the local authority borders. I cannot see how the market works as a regulator of standards for the local offer.

Secondly, we inspect. That is another way to guarantee quality. I would be grateful if the Minister would give us an update on where the department is with Ofsted inspecting the local offer. In Committee, he undertook to write to me, and I must admit that I am not sure whether that letter has been sent; I have not seen it. I would accept it if the Government have decided to inspect the local offer to make sure that people are protected against poor provision.

If they do not want to do that, the next action is regulation. Amendment 33D, as tabled by the noble Lord, Lord Low, would put in regulation to protect people against poor standards. It really does not matter whether it is inspection or regulation—but I do not want it to be the market, which I think is where the Government are headed with this, because that will not work. We have to get the balance right between protecting people in areas where a local authority does not deliver the goods and leaving local authorities that are good, free to excel.

This is not just about safeguarding against low-quality provision: the Government should, equally, be incentivising innovation and high standards. If you only dampen down by inspecting, you will not get the high standards and innovation to which the noble Baroness, Lady Eaton, referred. We have had so many decades of experience in the delivery of public services, and there are good ways of incentivising innovation, rewarding high standards and making sure that those high standards are spread to include everyone else. That is my ideal— to do both. I think that we will see the good quality provision in the local offer to which the noble Baroness, Lady Eaton, referred, and that we will find ways of making sure that other local authorities know about it. Equally, for balance, we need something to set a basic standard below which local authorities’ local offer should not fall so that as regulators and legislators we can say that everybody, no matter where they live, is protected from a poor standard of provision. In that respect, I very much support the amendments that we are considering in this group.

[Baroness Wilkins (Lab)]

My Lords, I, too, support all the amendments in this group. If the Bill really is to improve the position of families of children with SEN in their struggle to give their children the best start in life then it must provide some certainty. Assurances of the provision which a local authority expects to be available are useless if they turn out to be just warm words. Parents need to know what is available, and families must know that there is a benchmark below which standards are not allowed to fall.

Let us not forget that the vast majority of people who find themselves as the parent of a disabled child will have no previous knowledge of the world of special educational need. They will not know what services that their child might need should be available and will have no knowledge of the structure of provision or the standards that they should expect. They will have to learn all of this at a time of great stress and amid all the other demands of family and work life. On Amendment 25E, I particularly support the comments of the noble Baroness, Lady Howe, on the importance of accountability regarding the local offer. As the Education Select Committee said, the importance of the local offer cannot be overestimated.

Given that Clause 30 relates to the local offer as an information offer and not to the actual provision contained in it, can the Minister explain exactly how local authorities will publish their response and what action they intend to take following parents’ comments about the local offer? How will that actually lead to improvements to the services being made? Unless the Minister agrees to move the Government’s Amendment 33C to Clause 27, what do the Government expect local authorities to do with comments from parents about service provision? Is there anything in the Bill to ensure that these comments will be fed into the review of service provision referred to in Clause 27? Moreover, will local authorities clearly explain to parents that they can comment on the local offer only as a source of information and not the provision itself?

As the noble Baroness, Lady Howe, stated, the local offer will be relied upon by 1.4 million children with SEN, namely those without a statement or an EHC plan. Can the Minister therefore clarify, if the child does not have a plan and a local authority publishes a response and follow-up action which was unsatisfactory to parents, are there any further mechanisms in place to ensure that parents’ concerns are addressed?

By the Government’s own figures, the total cost to the taxpayer of parents taking cases to an SEN tribunal is more than £30 million a year. Given this substantial cost, is it not imperative that disputes between parents and local authorities are resolved at the earliest possible opportunity? Amendment 25E, which requires parents, local authorities and others to work together and develop an action plan, would enable this to happen, and I urge the Government to accept it.

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[Baroness Howarth of Breckland]

My Lords, I want briefly to say what I have said several times. If you have a package for education and health, you cannot fail to include the social care element. What I am hoping is that the Minister will give the same answer that he has just given on my previous point—that such provision is contained in the Care Bill. Having looked at the progress made in the way that these services are delivered, that Bill will ensure that the social care element can be provided along with the health element. That is really important because the three are inseparable in the provision of services, particularly for very severely disabled young people. I therefore hope that the answer will be that such provision is already there in another piece of legislation.

[Baroness Wilkins]

My Lords, I, too, add my support for the amendment. For this system to be truly joined up, all parts of the education, health and care plan need to be enforceable; otherwise, social care will be, as has been described, the poor cousin—the element within the EHC plan that will be considered to be of least importance. This is of concern to a wide range of children and young people with SEN and disabilities. We know that parents, too, are concerned about this; in fact, more than 1,000 people have written to the Minister on the issue and asked the Government to ensure that social care will be an equal partner in education, health and care plans. I am therefore encouraged to learn that the Government are looking into the issue in more detail. I very much welcome this and look forward to the Minister’s response.

[Baroness Eaton]

My Lords, perhaps the Minister can clarify what I understood was the situation, whereby there is already in existence a statutory duty under Section 17 of the Children Act 1989 for local authorities to provide services in their area to meet the needs of children in need, including disabled children.

In the case of services for disabled children, under Section 2 of the Chronically Sick and Disabled Persons Act 1970, once the local authority is satisfied that it is necessary to provide assistance under that section, it is under a duty to provide the assistance. It is not, however, necessarily the case that services must be provided to meet every assessed need. Whether a children’s services authority has to provide services following assessment depends on the nature and extent of the need assessed, and on the consequences of not providing the service. These duties have already been the subject of significant litigation, and it may be that imposing a social care duty under the Bill would further complicate an already complex legal position.

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Moved by

[Baroness Wilkins]

48ZA: After Clause 68, insert the following new Clause—
“Inspection and review of local authority special educational needs provision
Services included in the local offer that are delivered or commissioned by the local authority for the provision of specialist education support for children with special educational needs under this Act shall be subject to inspection by an appointed regulator and the findings shall be published.”

[Baroness Wilkins]

My Lords, this amendment is in my name and that of the noble Baroness, Lady Howe of Idlicote, and the noble Lord, Lord Low of Dalston. It would require an independent regulator to be appointed to scrutinise the provision of local authority services for children with SEN and their families. It is a further attempt to address the widespread concern about the lack of accountability in this Bill. As my noble friend Lady Morris of Yardley said in Grand Committee, the whole Bill could fail if parents do not quickly have confidence in the offer. There must be a clear message to parents that there will be a voice speaking on their behalf to make sure that the offer is of good quality.

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[Baroness Wilkins]

I thank the Minister very much for that very full reply. I must admit that I need to take it in more thoroughly and shall read it. I am glad to hear that the department has not ruled out inspection of local SEN support services in the Ofsted review and that that will be heard this summer. However, that will be after the Bill has completed its course.

I thank all noble Lords who have taken part: the noble Baronesses, Lady Howe and Lady Sharp, and the noble Lords, Lord Low and Lord Ramsbotham. I am sure that noble Lords will want to reflect on what the Minister has said and perhaps follow up on the very interesting suggestion from the noble Lord, Lord Ramsbotham. However, for now, I beg leave to withdraw the amendment.

Amendment 48ZA withdrawn.