Children and Families Bill

Debate between Lord Low of Dalston and Baroness Howe of Idlicote

Tuesday 7th January 2014 Lords Chamber

[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.

Children and Families Bill

Debate between Lord Low of Dalston and Baroness Howe of Idlicote

Tuesday 17th December 2013 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, we now come to Part 3. I shall move Amendment 16A, and speak briefly in support of Amendment 34A in the name of the noble Baroness, Lady Howe.

In 1978, the noble Baroness, Lady Warnock, described inclusion, or integration, as it was known at that time, as,

“the central contemporary issue in special education”.

It has not lost much of its salience in the time that has elapsed since then. It refers to the opportunity, or even the right, for disabled children to be educated in mainstream schools alongside their non-disabled peers as an expression of their right to take their place in the community as fully equal members of that community. It is a right that many disabled people feel has been too long denied and which is accordingly all the more highly prized, especially by many parents so far as the education of their disabled children is concerned.

The right to inclusive education is contained in Article 24 of the UN Convention on the Rights of Persons with Disabilities, which the UK ratified in 2009. In relation to the right to education, states are also under an obligation to take measures to achieve the progressive realisation of the right. When the UK ratified the convention, it entered a reservation and interpretative declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of the progressive realisation of the right to inclusive education.

This amendment was recommended by the Joint Committee on Human Rights to place the principle of inclusion in the Bill among the general principles set out in Clause 19, in line with the rights contained in the UN convention and in terms which closely follow the language of the UK’s interpretive declaration.

In Grand Committee, the Minister outlined steps which the Government were taking to promote the principle of inclusion, which he considered made it unnecessary to amend Clause 19. He referred to duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to policies and practices. For the most part, however, the measures he referred to were what I might call “soft measures”, such as continuous professional development of staff and development of expertise in supporting children with SEN. He also relied on the fact that guidance on inclusion would be given in the SEN code of practice.

Why should one want to go further than this? There are six reasons. First, the code of practice, the latest draft of which was issued on 4 October, is very much watered down compared with the existing guidance. In particular, it contains many fewer of the sorts of examples and scenarios which help to bring the principle of inclusion to life for people who need guidance in how to implement it. We need something like the JCHR’s principle in the Bill as a necessary peg on which to hang stronger guidance. Secondly, the principle of inclusion continues to be the subject of considerable litigation. This suggests that the current state of the law and guidance leaves considerable scope for uncertainty. Putting the JCHR’s general principle in the Bill would help to remove this uncertainty and clarify the law and relevant guidance. Thirdly, the JCHR has recommended our amendment. Fourthly, it is in line with the obligations to which the UK has signed up under the UN convention. Fifthly, as I have said, the language of the amendment closely follows that of the UK’s own interpretive declaration, so should hardly be uncongenial to the Government.

Sixthly, there is otherwise nothing about inclusion in the Bill, notwithstanding that inclusion remains one of the central contemporary issues in special education, as I have said. The Minister will point out that Clauses 33 and 34 effectively contain rights to inclusion, but—and this is the most important point—these are rights to inclusion for the individual child. We need a general principle in the Bill in the terms of this amendment which gives local authorities an obligation to,

“continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children”.

We need an obligation of this sort in the Bill and one which lays the obligation on local authorities to take a strategic overview of the provision in their area and plan for its strategic development in line with the principles of inclusion, and in a way which enables that principle to be progressively realised. Without this, we continue to encounter the problem of children being rejected by individual schools which do not have the facilities—because the legislation is drawn in such a way that they can do that—because the authority has failed to take a strategic overview and ensure that there are schools in their area which have the requisite facilities.

There is one general point. I see that people might worry that an amendment in these terms, which speaks of the progressive development of an inclusive system, with increasing access to mainstream schools, might tend to exclude the possibility of education in special schools for those who want it. That is not my intention at all. I am in favour of what I call a mixed economy of provision. There is nothing in this amendment which would take away the right of a parent to opt for a special-school placement if they want to. This is enshrined in the legislation. Under the law as it stands, which is retained in this Bill, no one can be compelled to send their child to a mainstream school who does not want to.

I will just say a word about Amendment 34A. My Amendment 16A covers the importance of developing an inclusive system in which disabled children and young people are increasingly welcomed by mainstream schools with the right skills to support them. The general presumption in favour of mainstream education is maintained in Clause 33. That is why it is disappointing that the potential for special academies to admit children with SEN without an education, health and care assessment and plan is included in Clause 34(9). The fact that academies are brought within the SEN framework by this Bill is very welcome, but the inclusion of Clause 34(9) seems oddly at variance with this approach. As I said at Grand Committee, this clause undermines a long-standing consensus that children and young people should be placed in special schools only where this has been identified as the most appropriate placement, following a statutory assessment and decision-making process which takes full account of the wishes of the parent.

Draft regulations under Clause 34 allow a child or young person to be placed in a special school without an EHC assessment and plan on an indefinite basis, provided that the placement is reviewed termly. Some parents may welcome this power because of the potential to give swifter access to a special-school place. Without a full assessment and decision-making process, however, there is a high risk of inappropriate placement. This new power to place children in special schools outside the rigour of a statutory assessment and decision-making process risks a return to a time when parents could be pushed into accepting a special-school place for their child, not because it is the best placement for them but because the mainstream school had not, for whatever reason, provided the appropriate support. In fact, it would take us back to the situation which obtained before 1999.

I support the noble Baroness, Lady Howe, in proposing that this subsection be removed and, in so doing, I beg to move Amendment 16A.

[Baroness Howe of Idlicote (CB)]

My Lords, my amendment, which I am pleased to hear the noble Lord, Lord Low, is also supporting, is very much along the lines of the discussion we all had in Committee. Currently, as we know, any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps to ensure that children and young people are not inappropriately placed in special schools.

Under both the old and the new regulations, a child can attend a special school on an assessment place. Despite some sympathetic comments by the Minister in Grand Committee, the Government’s proposals will still potentially allow special academies, including free schools, to admit children or young people permanently into school without their having had their special needs statutorily assessed, or an education, health and care plan put in place for them.

Illustrative regulations accompanying Clause 34 —Regulation 2(2)—will also allow children without an EHC plan to be placed in any special school on an ongoing basis provided the situation is reviewed annually. Although the Minister stressed that the support of professional advice would be needed, I fear that not enough safeguards will be in place to stop children or young people being admitted without their needs being fully assessed and agreed by a range of professionals with the child or young person and his or her parents.

Academies Bill [HL]

Debate between Lord Low of Dalston and Baroness Howe of Idlicote

Wednesday 23rd June 2010 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, I have just one query. I am grateful, as everyone is, for the time the Minister has already given to this whole area—we have had a whole session on it—and I am enthusiastic about the variety that will be available through the plans under the Bill. However, I am slightly worried that the overall cost might go up if the local authority is less involved in the whole set-up. It might contract out some of its provision. It might do that now, but it might need to do even more than that. Is that likely to put up the cost of meeting the special needs that really must be met if we are to do our duty by those with them, as we all want to do?

[Lord Low of Dalston]

My Lords, Amendment 83 proposes that Part IV of the Education Act 1996 applies to academies as it does to maintained schools. Part IV contains what is commonly known as the SEN framework, which makes provision for pupils with special educational needs and covers the assessment and statementing process, admissions, the delivery of services, the need to have regard to the SEN code of practice, and so on. The exclusion and disciplining of pupils with SEN are dealt with elsewhere in educational legislation and are the subject of later amendments.

On Monday, we debated amendments that sought to ensure that academies’ funding agreements contained all the requirements that Part IV of the Education Act 1996 lays on maintained schools in relation to pupils with SEN. The Minister very helpfully agreed to consider how best to achieve parity between academies and maintained schools, and to come back with proposals on Report. I must apologise to him and to the Committee that I could not stay for his reply on Monday on account of needing to attend a function elsewhere, but I read his reply in Hansard and found it most helpful. I thank him and ask him to accept that no discourtesy was intended.

We discussed those amendments then simply because they came up earlier in the Bill, but their scope was somewhat narrower than that of Amendment 83. They provided simply that funding agreements should incorporate Part IV of the Education Act 1996. Amendment 83 would provide that the requirements of Part IV are applied to academies as a matter of law and not simply as part of the contractual arrangement between the academy and the Secretary of State by which academies are governed.

The SEN framework in Part IV of the Education Act 1996 was developed with cross-party consensus. It makes provision for meeting the needs and providing support for children with SEN and disabilities, and gives parents a legal right to ensure that their children’s SEN are met. We know that the Minister is committed to ensuring that academies are subject to the full range of responsibilities in relation to children with SEN that maintained schools are under, but he believes that this can be brought about by contractual agreement. A better and altogether simpler way would be to provide that the requirements of Part IV are applied to academies as a matter of course, and as a matter of law rather than of contract. I suggest that for five reasons. First, it would ensure consistency across all academies. Secondly, it could ensure more comprehensive coverage of the rights and duties in Part IV.