Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Debate between Lord Low of Dalston and Baroness Walmsley

Monday 16th January 2012 Grand Committee

[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.

Academies Bill [HL]

Debate between Lord Low of Dalston and Baroness Walmsley

Wednesday 23rd June 2010 Lords Chamber

[Baroness Walmsley]

My Lords, we, too, believe that it is important that children and parents choose schools and not the other way round. In speaking to my Amendment 51, I welcome the fact that the Secretary of State has stated that the code for school admissions will apply to academies. We felt that we needed to table this amendment to probe how the codes—please note that it is the plural—for school admissions will apply to academies. There are two codes: one deals with the setting of admissions criteria and the role of the school adjudicator, and the other deals with how parents can appeal against a refusal to admit their child.

Currently, academies are required to comply with the codes “as far as possible” as part of their agreement with the Secretary of State. The codes were not written for the academy sector but for maintained schools. One additional thing that the amendment requires is that parents and the local authority are able to appeal to the adjudicator about admission arrangements. Currently, parents can appeal only to the Secretary of State but that can really only be done after the admission arrangements have been agreed between the academy and the Secretary of State when the arrangements are published. An admission authority—be it a local authority or a school governing body—has to publish, at the school and in a local newspaper, any proposed changes to admission arrangements and allow objections. If the admission authority confirms the change, the parent can appeal to the adjudicator, if he or she wishes to do so.

What is really required here is a single admission system for all publicly funded schools. Having two admission systems, which will still be the case if academies are required to comply with the code only where they can, is not really good enough. Academy status will have perceived benefits on admissions for grammar schools. They will no longer be subject to the rules on parental ballots when changing their admission arrangements. However, if we are to rely on the Minister’s words in his letter to Peers that,

“no non-selective school would be able to become selective”—

words which are very welcome—that would rule out the current ability of a maintained school to select 10 per cent of pupils on the basis of aptitude in music, arts and sport. Can the Minister clarify the Government’s intention on that point while we are discussing admission codes?

[Lord Low of Dalston]

My Lords, I should like to speak to Amendments 84 and 85. Noble Lords will be glad to hear that I do not intend to speak to them at anything like the length that I spoke to Amendment 83. Many of the same arguments might be deployed and they both deal with the question of parity between academies and maintained schools.

Amendment 84 seeks the application of the admissions legal framework to academies as though they were maintained schools, and Amendment 85 is the same form of amendment, except that it relates to the exclusions legal framework. They are both essentially probing amendments designed to find out how far the Government see the two frameworks applying to academies as if they were maintained schools—in other words, whether the intention is to achieve parity in respect of these two frameworks as much as it is the intention to achieve parity in relation to special educational needs.