Children and Families Bill

Lord Low of Dalston Excerpts

Tuesday 7th January 2014 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, I support the amendment of my noble friend Lady Howe.

I welcome the Government’s Amendment 33C, which would require local authorities to publish what action they intend to take following parents’ comments about the local offer. However, I am keen to know from the Minister what mechanisms will be in place to ensure that parents have a key role in shaping what this action to be taken by local authorities will be. The Government have consistently and rightly stated that the local offer should be responsive to local needs. Unless the Government accept the amendment of the noble Baroness, Lady Howe, to ensure that parents and young people are joint partners in developing an action plan to improve local provision, is there not a danger that the local offer will be responsive only to the needs of local authorities and not local families? While welcoming the Government’s amendment and supporting the amendment of the noble Baroness, Lady Howe, I would just ask the Minister those two questions. The second of them is really about how the Minister proposes to respond to the points that the noble Baroness, Lady Howe, has made.

I will speak mainly to my own amendment in this group, Amendment 33D, which would require the Secretary of State to make,

“regulations setting out the standards and quality of the special educational provision, health care provision and social care provision which local authorities must meet in their local offer … issue guidance to local authorities on how to meet these regulations, and … publish information on these regulations accessible to the families of children and young people with special educational needs”.

I will speak fairly briefly because we had two long debates in Grand Committee and the noble Baroness, Lady Jones of Whitchurch, has just spoken very eloquently to this amendment. I am very grateful to her for that—she made a very good argument for the case being put forward by the amendment.

As I said, we had a couple of very good debates in Grand Committee on the provisions of the Bill relating to the local offer. I moved an amendment which sparked a discussion about the kind of framework which needed to be put in place to regulate the local offers that local authorities made, to ensure that they met certain standards of consistency. The amendment took its cue from the animating principle underlying much of the legislation emanating from the Support and Aspiration Green Paper, which was that parents of children with special educational needs needed to be freed from the tangles of bureaucracy that were making it so difficult to access the services which could best meet their children’s needs. The amendment was couched in terms of the minimum standards which local authorities must meet in their local offers. The flaw in such an amendment was quickly pointed out: it could all too easily lead to local authorities simply working to the bare minimum and usher in a race to the bottom. At the same time, it provoked a bit of reaction from noble Lords who had a history in local government, who were at pains to point to all the good work local authorities do, the undesirability of constraining their room for manoeuvre too much and the need to leave them alone to get on with things. I was at pains to be conciliatory and to acknowledge that in my reply but, on reflection, I think I may have gone a bit too far.

The underlying thrust behind this legislation is the need to free families from the bureaucracy which ties them in knots and to redress the balance between local authorities and families attempting to assert their rights. I remember the noble Baroness, Lady Morris of Yardley, making the point very persuasively that, although one did not want to hamstring local authorities and unduly constrain them in what they can do, it was not wise to set up a completely new system like this without exercising a measure of central oversight. That is a very familiar distribution of responsibilities between central and local government and the education service.

My amendment is not unduly prescriptive in dictating to the Secretary of State what he must do; it merely requires that he make regulations setting out, as I have said, the standards and quality of the special educational provision, health care provision and social care provision which local authorities must meet in their local offer, issue guidance to local authorities on how to comply with these regulations and publish information on the regulations accessible to the families of children and young people with special educational needs. This is a very moderate obligation to lay on the Secretary of State and, depending on what the Minister says, I reserve the right to seek the opinion of the House when my amendment comes up as we go through the Bill.

--- Later in debate ---

Moved by

[Lord Low of Dalston]

33D: Clause 30, page 26, line 5, at end insert—
“(6A) The Secretary of State shall lay a draft of regulations setting out the standards and quality of the special educational provision, health care provision and social care provision which local authorities must meet in their local offer, and the regulations are not to be made unless they have been approved by a resolution of each House of Parliament.
(6B) Once regulations under subsection (6A) have been made, the Secretary of State must—
(a) issue guidance to local authorities on how to meet these regulations, and(b) publish information on these regulations accessible to the families of children and young people with special educational needs on the Department’s website, and in any other way he sees fit.”

[Lord Low of Dalston]

My Lords, Amendment 33D stands in my name and I spoke to it in our first debate this afternoon. When I spoke to it, I said that I would listen to what the Minister and other noble Lords had to say, but I reserved the right to move it and test the opinion of the House when it came up in order. With your Lordships’ agreement, I would like to do that. Never mind all the arguments in favour of the amendment to do with the desirability of a degree of central oversight of a wholly new system being introduced and operated by local authorities, which those who spoke in favour of it maintained is not unduly prescriptive. Irrespective of all that, the main reason why I want to press the amendment to a Division is that I think there has been a considerable misapprehension about the thrust of the amendment on the part of those who expressed reservations about it.

A number of noble Lords said that they were unhappy about an amendment which contained the idea of minimum standards and sought to impose them on local authorities as that would give rise to a tick-box culture, with local authorities merely operating to a bare minimum standard. When I spoke to the amendment I indicated that I had taken this very point when it was made in Grand Committee—that we should not confuse a framework of standards with minimum standards, because if we talked in terms of minimum standards that would lead to this very race to the bottom, which nobody wants to see. I made it clear when I spoke this afternoon that I have very much taken that point.

This amendment does not speak of minimum standards. It merely speaks of the Secretary of State making regulations to provide a framework of standards and quality for local authorities to observe in formulating their local offers. For that reason, I would like to test the opinion of the House.

--- Later in debate ---

[Lord Rix (CB)]

Noble Lords will have noticed, no doubt, that Amendment 38 would place a duty to deliver the social care element of the forthcoming education, health and care plans, which gives me an excuse to indulge for a short time in a worry that has bothered me for more than 30 years. In the 1980s, I began to have discussions with civil servants, politicians and administrators, particularly at the old DHSS—then located at the Elephant and Castle—about increasing co-operation between education, health and social care, and was told on many occasions that this was the recognised way forward. The will seems always to have been there, but meaningful co-ordination and collaboration on the ground has failed to emerge. It has been entirely dependent on local circumstance. We need to change that.

To the Government’s credit, they have recognised the problem and have taken the very welcome step forward of amending the Bill so that clinical commissioning groups are under a duty to provide the health element of the plan—but, alas, social care remains the poor cousin. This could easily be remedied by aligning the duty to provide social care services, as laid down in the Chronically Sick and Disabled Persons Act 1970, with the education, health and care plans that appear in the Bill. In this suggestion I am supported by not only my fellow signatories to the amendment but by the Special Educational Consortium and the Every Disabled Child Matters campaign.

Currently, many families do not receive the care they need until they reach breaking point—something to which Mencap drew attention in a recent report of that name. A duty to deliver the care elements of the plan will ensure that children, young people and their families receive services earlier, thus preventing the need for higher levels of support later. I understand that the Government are looking into this matter— something I warmly welcome, if the outcome is correct. I look forward to the Minister’s response. I beg to move.

[Lord Low of Dalston]

My Lords, my name is on the amendment and I wish to give my full support to my noble friend Lord Rix, who moved it. It would place a duty on local authorities to deliver the social care services identified in education, health and care plans. The contention of the noble Lord, myself and the other noble Lords who have their names on the amendment is that there is very little point in assessing a child or young person’s needs, identifying social care needs and putting them in the education and health plan, and then not making the plan enforceable in respect of social care as it is in respect of education provision.

As I think the noble Lord, Lord Rix, indicated, the amendment would add no new duties on local authorities to provide social care in addition to those that already exist. It merely brings together the legislation on education, health and care plans and existing social care legislation. There is currently a misconception that the social care duties in respect of disabled children are not specifically enforceable for an individual child. However, as I think the Government accept, this duty does already exist under Section 2 of the Chronically Sick and Disabled Persons Act 1970. The proposal contained in this amendment would help to correct this misconception.

The Government have argued that a proposal to create an individually owed duty in relation to social care would prioritise one group of children in need over another. However, there is already an individually owed duty to disabled children in Section 2 of the Chronically Sick and Disabled Persons Act, as I indicated, which is not enjoyed by other children in need. We had a good discussion about this in one of the Minister’s meetings with Peers, which I think we all found very valuable in developing our understanding of the Bill. I think we managed to elucidate in that discussion that if one were going to establish priorities between different groups of recipients of social care, it would have to be done at a prior stage to the formulation of the education, health and care plan. If the authority has got to the point of identifying social care needs and putting them in the plan, it really does not make any sense in terms of integrated education, health and social care provision not to make the provision identified in the plan enforceable.

[Baroness Hollins (CB)]

My Lords, I, too, add my support to the amendment moved by my noble friend Lord Rix, which aims to ensure that children and young people receive the care to which they are entitled. I empathise with the battle to get health, education and social care agencies to work together; it is one that I waged on behalf of my son in the past. I know, of course, that I am not alone here and that parents across the country face this uphill struggle.

The absence of a duty to deliver the social care elements of the plan sends out the dangerous message that care is unimportant alongside education and health provisions. It is, as my noble friend says, the poor cousin. For children and young people with a learning disability and their families, this could not be further from the truth. Good social care plays an important part in helping the child or young person achieve their educational goals. That is accepted, whether it is in relation to independent living, supported employment, employment or moving on to further learning. Good social care prevents burnout in families. I understand and am glad that the Government have accepted that there is an issue here, and I look forward to the Minister’s response.

--- Later in debate ---

[Lord Rix]

My Lords, Amendment 40A, supported by my noble friends Lord Low and Lady Hollins, seeks to create a single point of appeal across education, health and care. If we are to create a joined-up system across education, care and health, we must apply the same principle to an appeals process. The case was well made by noble Lords in Committee, and I know that the Minister sympathises with the arguments.

My concern is for parents whose sons and daughters have profound and complex needs that cut across education, care and health. If in September this year the provision set out in the plans is not up to scratch, parents could end up appealing left, right and centre, across three very different cultures—from the SEN tribunal, to the health ombudsman and on to the social care chamber. Ultimately, this is about making the system run smoothly so that parents can get on with just being parents—often, as I say, to children with the most complex needs. I fear that unless we do something, parents will remain knee-deep in a quagmire of different agencies, desperately battling for support so that their sons and daughters can, rightly, achieve their aspirations.

The noble Baroness, Lady Hughes, has tabled an amendment that could see a review looking at the feasibility of bringing appeals for education, health and care together. It seems that it is a case of fix now or fix later. For the sake of disabled children and young people, and their families, I hope that whatever the outcome, the fix is soon. I beg to move.

[Lord Low of Dalston]

My Lords, I have my name on the amendment and give my noble friend Lord Rix my full support in moving it. The case seems self-evidently made and I do not wish to add a great deal to what my noble friend has said.

The raison d’être of this legislation, by and large, is the Government’s attempt to sweep away the barriers of bureaucracy which, it has been well attested, have come between parents, families, children and young people and the assertion of their rights in relation to special educational provision. The Government have, very laudably, brought forward this legislation to try to tackle some of those barriers by developing an integrated system of provision through the integrated education, health and care plan.

We said in relation to an earlier amendment that it does not make much sense to put things in an education, health and care plan and give people the right to enforce provision only in one or maybe two areas but not a third. Equally, it does not make any sense to create an integrated system of provision using education, health and care plans, with a view to sweeping away barriers of bureaucracy by putting in place an integrated system of provision, and then give people a wholly unintegrated system of enforcing their entitlement to what is specified in those integrated education, health and care plans.

--- Later in debate ---

Moved by

[Lord Low of Dalston]

43A: After Clause 61, insert the following new Clause—
“Guidance on duty to maintain a register of disabled children and young people under section 17 of the Children Act 1989
The Secretary of State shall issue impairment specific guidance, whether in regulation or otherwise, to local authorities on how they can most effectively discharge their duty to maintain a register of disabled children and young people under section 17 of the Children Act 1989.”

[Lord Low of Dalston]

My Lords, Amendment 43A addresses a comparatively specific range of concerns, so I shall use my best endeavours to speak to it comparatively briefly. In a meeting that I attended earlier today, I was told that the obligation to use my best endeavours laid on me a pretty heavy obligation.

In Committee, I introduced an amendment to require local authorities in England to establish and maintain a register of sight-impaired and severely sight-impaired children and young people ordinarily resident in their area. The Care Bill currently going through Parliament lays a duty on local authorities to establish and maintain registers of sight-impaired and severely sight-impaired adults. It seemed odd, therefore, that no such obligation in relation to sight-impaired and severely sight-impaired children was included in this Bill. These registers play a critical role in enabling local authorities to assess population-level need for specialist visual impairment services and support, and to plan for their provision. The Government argued that an obligation to maintain registers of disabled children exists under the Children Act 1989, but there is a lot of evidence to suggest that this obligation is widely disregarded and, in any case, is not effective. The RNIB—and here I declare my interest as a vice-president of that organisation—has recently discovered by means of a series of freedom of information inquiries that a fifth of local authorities do not have a register of disabled children at all.

--- Later in debate ---

[Baroness Northover]

My Lords, this debate builds on previous discussions which we have had as the Bill has progressed. We had a particularly important debate before Christmas on the need for high-quality data to inform decisions about the necessary support for families. I thank the noble Lord, Lord Low, for his engagement in this area and his promotion of it.

Local authorities have a duty under Section 17 of the Children Act 1989 to maintain a register of disabled children in their area. This will remain unchanged by the Care Bill, which applies only to adults. I recognise, however, that the noble Lord, Lord Low, remains concerned that the registers of disabled children are underused and that they lack the detail needed to support effective planning of services, in particular for blind or visually-impaired children. It may well be that some local authorities do not adequately maintain their registers at the moment. We agree that guidance is important in addressing this issue, which we believe is one of practice rather than legislation, as the noble Lord indicated. We do not think that a new power to issue guidance is necessary.

In our debate before Christmas, noble Lords welcomed amendments to the Bill requiring disabled children to be included within the scope of a number of significant clauses in Part 3. These include: local authorities identifying children and young people in their area who have or may have SEN, in Clause 22; joint commissioning arrangements, in Clause 26; reviewing the special education and care provision that is available locally, in Clause 27; and the local offer, in Clause 30. I am pleased that noble Lords welcomed these amendments, which are a significant change to the Bill. They also provide a greater incentive to use the SEN code of practice, which provides statutory guidance on these and other duties under the Bill, to include guidance on issues relating to disabled children and young people.

Within the code, we will now require that local authorities have a clear picture of the numbers of disabled children within their area, including in particular data on low-incidence needs such as visual impairment or hearing impairment. We will also make clear—as we have in the existing code—that local authorities remain under a duty to maintain a register of disabled children and that these registers are particularly important in fulfilling the duties that I have just set out.

Placing this guidance within the core SEN code of practice will mean that the duties of the local authority are clearly and explicitly set out in the main statutory document that local authorities and their partners consult practically daily and which they must have regard to. This also avoids the potential for confusing or contradictory requirements across different sets of guidance. The guidance in the code will ensure that there is no doubt over the need to maintain registers of visually-impaired children and link this need clearly to the local authority duties under the Bill. I hope that the noble Lord is reassured and I urge him to withdraw his amendment.

[Lord Low of Dalston]

My Lords, I am grateful to the Minister for her reply. I am reassured by what she says—that the Government have certainly got hold of the issue and its importance. The important thing now is to make sure that local authorities get hold of it. I am not 100% reassured by the undertaking to ensure that it is included in a code of practice that gets thicker by the minute as we put new things in it. This provision seems the kind of exhortation that could easily get buried among a lot of other, more high-profile stuff.

Could the Government meet me one step further? The Minister kindly offered to include the issue in the code of practice. Not only that, but when the code of practice is circulated, as it will be, could they specifically draw the issue to local authorities’ attention as an important requirement that they have to give considerable attention to? That would be particularly helpful. When the code of practice is circulated, there will be ancillary communications surrounding it, laying emphasis on the importance of this and that aspect. If the Minister would agree to put something in those supporting communications to draw attention to the importance of maintaining the registers, for the point of view of the data that they provide and the opportunity for identification of need and planning that they—

[Baroness Northover]

Maybe I could reassure the noble Lord that we will highlight the importance of the duties when we write to local authorities about the implementation of the Bill.

[Lord Low of Dalston]

Now I am about 99.9% reassured. That is very helpful and I am grateful to the Minister for it. On that basis, I beg leave to withdraw the amendment.

Amendment 43A withdrawn.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, I am pleased to support the amendment of the noble Baroness, Lady Wilkins. The Bill is in my view somewhat weak in terms of accountability. This is surprising, given how much emphasis the Government put on strengthening accountability in other areas. Very recently, for example, in their response to the consultation on secondary school accountability, the Department for Education noted approvingly that:

“OECD evidence shows that a robust accountability framework is essential to improving pupils’ achievement”.

In the Government’s White Paper Open Public Services, it was stated that increased choice must be accompanied by a framework that ensures,

“providers meet basic quality requirements enforced by … inspectors”.

The White Paper went on to say that the Government would,

“ensure that providers of individual services who receive public money … are licensed or registered by the appropriate regulator”.

I am also rather concerned that local education authority SEN services are subject to so little scrutiny given the amount of government expenditure in this area. I understand that over £5,000 million is allocated to funding for children with high needs. Surely, there must be greater scrutiny of whether funding for local authority SEN provision is delivering value for money.

Separately, it can be argued that there is a particular case for inspections of services for children with low-incidence needs, such as sensory impairments. Local authorities and mainstream schools and teachers are far less likely to be familiar with the specific needs of children with sensory impairments. This lack of familiarity and expertise makes the role of local authority SEN provision much more important. The quality of this support is crucial, but apparently no one is checking the quality of this support. This is not really acceptable.

We should note, too, that this proposal has the support of professional bodies, including the National Sensory Impairment Partnership. Heads of services for children with sensory impairment have indicated that they would welcome greater scrutiny, because it allows them to demonstrate and emphasise the importance of their role.

I share the concerns raised by the noble Baroness, Lady Wilkins, that the commitment made in Committee that Ofsted be asked to carry out a review is insufficient, particularly if Ministers have already, apparently, ruled out inspection of local authority SEN provision. We have already had a one-off thematic review of support for deaf children, with the findings published in the Ofsted report, Communication is the Key. It looked at provision in three local authorities; it did not tell us much about the other 149 local authorities and, even in those three local authorities identified as having best practice, weaknesses were identified in their quality assurance and self-evaluation. For that reason, there is clearly real concern about what value or impact another broad, one-off thematic review will add. Instead, surely what is needed is the introduction of a robust inspection framework for all local authority SEN services.

I hope that the Minister, having listened to all this, has been persuaded by strong arguments in favour of the proposal.

[Lord Low of Dalston]

My Lords, I, too, give my full support to the amendment moved by the noble Baroness, Lady Wilkins. I shall make three points in support. The amendment is inspired by Sense, the RNIB and the National Deaf Children’s Society. As vice-president of the RNIB, I declare my interest in that connection.

Nowadays, the majority of school-age children with sensory impairments attend mainstream provision and often rely on support from specialist visiting teachers and services. Whether the support comes from outside or inside the school, the development of mainstream provision for children with sensory impairment is of sufficiently recent origin for it to be the case that many schools in which children with sensory disabilities and impairments are being educated are still unfamiliar with the methods of educating children who are blind, deaf, or deafblind, and with the special skills that they need, the communication methods that they use, and how to inculcate those skills. It is vitally important that there should be a system of inspection to assure us that services are of an adequate quality. At an early stage of this transition to mainstream, services are not yet of the quality that we want to see; it is in the nature of the case that you do not always get services of the quality that you want just at the beginning of a new development. But I want to argue that the existence of a system of inspection and accountability is absolutely vital to raising standards and avoiding bad practice just by default. The lack of scrutiny afforded to these services places these children at risk of poor provision, particularly as mainstream teachers and schools are still unlikely to be familiar with the specific needs of children with sensory impairments.

The second point that I would like to make is that, in other areas, the department has already recognised the importance of strengthened accountability. In its response to the responses received to the consultation on secondary school accountability, the department stated:

“The most effective education systems around the world are those that have high levels of autonomy along with clear and robust accountability”.

That is the kind of point that we were trying to make in relation to the local offer in the first debate this afternoon. We want there to be local autonomy, but we want also to be satisfied that that is not developing as a postcode lottery and that too many services are not falling below the mark. We need a system of clear and robust accountability alongside the notion of local autonomy.