Children and Families Bill

Debate between Lord Low of Dalston and Lord Storey

Wednesday 6th November 2013 Grand Committee

[Lord Low of Dalston]

I did not quite follow the point that the noble Baroness, Lady Perry, made when she talked about the danger of privileging children with special educational needs over other children. The fact is that we have a separate system that children with special educational needs can get into, and if they do not have them they cannot do so. However, for those who can get into the system it is surely right that it is the best possible system that we can make it and is immune from criticism on the sort of grounds that have been advanced this afternoon regarding the need for a single point of redress.

[Lord Storey]

I very much welcome each contribution on this amendment and thank the Minister for his response. I want to reflect carefully on what he has said. I agree with the noble Baroness, Lady Perry, that we would have to consider carefully any suggestion of inequality or people being treated differently. As always, the noble Baroness, Lady Morris, puts her finger on the issue. Those of us who have worked in education know that the culture of social services and health services—please do not take offence—is often different from that of education services, and friction and difficulties can often occur.

When I was researching this topic, I was thinking, “Yeah, come on; it makes sense to have one single point of appeal, doesn’t it? Who could argue against that?”. But then people say to me, “Oh no, because, because, because”. I would want to test that a little more thoroughly. It would have been interesting if the Government had put it the other way around and said, “We want you to make this work. Never mind your different cultures; we want one point of appeal. Go away and do it”. When they come back with the work we would then see whether it was possible. I really want to interrogate this issue because it surely makes sense.

Finally, I thank the Minister and welcome his comments on Amendments 183 and 184. I beg leave to withdraw the amendment.

Children and Families Bill

Debate between Lord Low of Dalston and Lord Storey

Wednesday 23rd October 2013 Grand Committee

[Lord Low of Dalston (CB)]

My Lords, having laboured, not without difficulty, up the lower slopes of this major and compendious piece of legislation, we come at last to a major plateau where we can either take our rest or chafe at the impediment it still constitutes on the way to the summit.

I refer to Part 3, on special educational needs. I describe it as a major plateau because more than 200 amendments to Part 3 have been tabled for debate in 35 groups. I fear that I am responsible for more than 20 of them. At the current rate of progress, that should take us a good five days. Perhaps that is not so bad; four were allowed for in the Committee calendar. I certainly do not intend to hold up progress any more than necessary. I just observe, however, that the fact that there are so many amendments testifies to concern that the Bill is not yet in a fit state to go on to the statute book if it is properly to serve the needs of the children and young people whose lives and futures it deals with; to disappointment that the Government have not been more responsive to concerns raised so far; and to the hope that we will see more movement as the Bill passes through this House, so that its passage into law does not need to be delayed beyond the timescale that the Government have in mind.

Let us see whether we can get four amendments out of the way without more ado. I am moving Amendment 65B and speaking to Amendments 87, 90A and 105. Amendments 65B, 67 and 105 would ensure that the Bill covered children and young people who have a disability under the Equality Act 2010 but do not have a special educational need. The language varies slightly, and this is just a random selection of places in the Bill where children and young people with a disability but not a special educational need could be inserted. Clause 19 deals with local authorities’ role in supporting and involving children and young people, Clause 26 deals with joint commissioning arrangements and Clause 30 concerns the local offer. In that sense, they are probing amendments to gain more understanding of the Government’s reasons for introducing a Bill that deals with children with special educational needs but not with children and young people with a disability who do not have special educational needs. Amendments 65B and 90A also ensure that the principal obligation owed by local authorities by virtue of the Equality Act to children and young people with disabilities but not a special educational need—the duty to make reasonable adjustments —is covered. Amendment 90A, in particular, is designed to ensure that the reasonable adjustment duty is firmly integrated into the planning of education, health and social care services.

Part 3 applies to children and young people with special educational needs. Children and young people with special educational needs are defined in the Bill as those who have a significantly greater difficulty in learning than the majority of others of the same age or a disability which prevents them from making use of the educational facilities usually available in that area. Although many disabled children and young people are covered by that definition of SEN, some are not. For example, the following children would be disabled but have no special educational need: a child with a physical disability whose school was completely accessible to them or a child with a serious health condition that does not impact on their learning or ability to access the school premises. That group could include those with epilepsy, asthma, diabetes or a motor or musculoskeletal disorder, all of which might require medical treatment or therapies to be administered in school, possibly alongside a social care package at home, but would not require any educational interventions.

Research from the universities of Bath and Bristol, commissioned by the DfE itself, estimated that around 25% of disabled children do not also have special educational needs. The impact of this omission is that the Bill will require local authorities and clinical commissioning groups to plan jointly under Clause 26 and review under Clause 27 provision for the 75% of disabled children and young people with SEN but not for the 25% of disabled children without SEN. Under Clause 30, local authorities must set out a local offer of services available for the 75% of disabled children and young people with SEN but not for the 25% without SEN. The Bill thus creates a dividing line between children with SEN and disabled children without SEN and, as a result, certain things must be done for one group and not the other.

As well as being unfair, leaving disability out of Clauses 26, 27 and 30 does not make sense on a practical level. The label SEN is simply not used by social care or health commissioners. For example, under the Children Act 1989, social care services are delivered to disabled children, not children with SEN. Locally, the Bill as currently drafted will lead to confusing arguments about whether a service is for children with SEN or only for disabled children. There would be no additional cost to including disabled children without SEN in the duty to review services or jointly commission services. It could even end up saving money by creating a more streamlined system.

There are three things wrong with leaving disability out. First, as we have seen, in the new world of integrated education, health and social care, it will lead to confusion and unnecessary boundary disputes. Secondly, it misses a golden opportunity to rationalise the legislation on SEN and disability. SEN legislation is a river fed by two tributaries—SEN legislation itself and disability discrimination legislation. These overlap to a significant extent—some 75% as the universities of Bath and Bristol have shown—but not entirely. This Bill would be a perfect opportunity to bring the two streams together into a single, more coherent framework. Thirdly, leaving disability out goes back on what was promised in the Green Paper on SEN and disability.

This promised a new deal for children with SEN and disabled children. Local authorities would be required to set out a local offer of services available to support children who have SEN or who are disabled. There would be stronger strategic planning and commissioning duties to support children who have SEN or who are disabled. The Bill sets out stronger strategic planning and commissioning duties but, importantly, it does not include disabled children in these clauses, as was promised. I understand that the Government believe that disability is adequately covered in the Bill as a result of Clause 20 but the references to disability there are all to a disability that calls for special educational provision to be made. I fear that does not really bring in those with disabilities but without SEN.

Finally, to hammer the last nail in, it should be noted that the Education Select Committee, in its pre-legislative scrutiny, was in favour of including disabled children without SEN. It said:

“The evidence makes a strong case to include disabled children, with or without SEN, in the scope of entitlement to integrated provision … We recommend this”.

I hope very much that the Minister will review the legislation with a view to bringing in this important category of children and young people. and thereby making the legislative framework a lot more coherent and practical. I beg to move.

[Lord Storey (LD)]

My Lords, I shall speak to Amendments 67 and 68. The current test in the Bill for whether someone has special educational needs is whether they have a learning difficulty or a disability that would require special educational provision, defined in Clause 21 as,

“educational or training provision that is additional to, or different from, that made generally for others of the same age”.

Amendment 68 would mean that the test of whether someone has a special educational need would be based not on whether they need special educational provision but, instead, on whether provision has to be made for them to access education. What is the difference? Someone could have barriers to their accessing education which do not require,

“educational or training provision that is additional to, or different from, that made generally”.

For example, simply being unable to access a class, due to stairs, for a wheelchair user, is nothing to do with education or training provision but instead about their ability to access education.

Why do I think that this amendment is important? When the Government originally published their proposals for the Bill, when Sarah Teather was the Children’s Minister, the focus was very much on special education and disability needs. The Government have said that this does not prevent the provisions being applied to disabled children when there are barriers to them accessing education. Clause 20 includes disabled children as people who have special educational needs. However, clarity is needed about what might constitute a barrier to education. Are we just talking about things such as additional support—Braille, and so on—or do we include the simple ability to get to a class or get through a lesson due to a spinal problem? This amendment is a probing one to clarify that educational or training provision includes the ability to access education and does not apply only to the actual classroom or teaching session.

I move on to Amendments 220, 221 and 222. Your Lordships all get letters, briefings and, in some cases, speaking notes from a whole host of organisations. I am always amazed at the fortitude of those organisations in campaigning, rightly, for what they really believe in. But sometimes, in the barrage of the correspondence, we get personal letters or comments from individuals who are not part of a gigantic campaign—they are individual snapshots of how that person feels. One such letter came to me some time ago, about allergies. I remember in my own school children with nut allergies. Knowing nothing about it, I did a bit of exploration and realised that this was very serious. If they had an allergy, we needed to make sure that their photographs were pinned up by the canteen and that the Epipen that they needed to save their lives was readily available.

I want to read you this letter from a child, whose name I shall not mention, because it shows how important it is that no child with a medical condition should be prevented from having full-time school provision. The letter says:

“Since the age of 9 months I have had to use the EPI-PEN 13 times. Regardless of all my allergies I have always had a positive attitude to life, and that’s how my mum has always taught me to help me learn how to live in the bigger wider world and my dad has always taught me to smile. Because of this I have been able to live my life to the fullest and we have travelled and had fun whilst doing many exciting things. Nursery, primary and my first year of high school were great and memorable years and the schools have always managed with my allergies.

Now we zoom into 2013 and let’s see what’s going on now. We’ve moved in a new area and my mum applied for schools in our area as they were more nearer to home, we didn’t get the schools we applied for but in the meantime I was offered a place in another school straight away. But all the staff in my new school are worried about my allergies and they aren’t giving me a starting date, it’s been 8 weeks I’ve been out of school and still don’t know when I’m starting!”.

I read that letter as an example of how a medical condition, which the school should cater for, is preventing that poor little girl being able to get to school.