Special Educational Needs and Disability Code of Practice: 0 to 25 years

Lord Nash Excerpts

Monday 28th July 2014 Grand Committee

Moved by

[Lord Nash]

That the Grand Committee do consider the Special Educational Needs and Disability Code of Practice: 0 to 25 years.

Relevant documents: 6th Report from the Joint Committee on Statutory Instruments (special attention drawn to the instrument), 3rd Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, the draft code of practice gives guidance on Part 3 of the Children and Families Act 2014. The code has been approved by the other place and I welcome the opportunity to introduce the debate in Committee today. First, I want to acknowledge the extensive time that many noble Lords have given to discussion of the Act and the emerging code. Together we created an excellent Act, one that will transform the way in which support is provided for children and young people and their families. The code of practice will bring added impetus to achieving that aim.

Our vision for children with special educational needs and disabilities is the same as for all children and young people—that they achieve well in their early years, at school and in college, and lead happy and fulfilled lives. The new code will play a vital role in underpinning our special educational needs and disability reforms. The reforms will bring a new approach, one that places the views of children, young people and parents at the heart of the system and joins up education, health and care services for children and young people. These important principles run right through the code. For children and young people this means that their experience will be of a less confrontational and more efficient system. Their needs will be identified early with support put in place quickly, and parents will know what services they can reasonably expect. Children and young people and their parents or carers will be fully involved in decisions about their support and what they want to achieve, with an increased focus on life outcomes, including employment and greater independence.

The Department for Education and the Department of Health have worked to ensure that local authorities and local health partners work together to plan and commission services for these children and young people. The code is the result of more than a year of extensive consultation, and we took great care to listen to those who must have regard to the code to make it truly accessible. Additionally, we offered stakeholders the opportunity to comment on revisions of the code before running a final consultation in Spring 2014. I am grateful to the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their consideration of the draft code. Each raised one particular, and different, issue.

The Joint Committee on Statutory Instruments reported a concern in relation to local authority decisions on personal budgets. I wrote to the noble Baroness, Lady Hughes of Stretford, on the same issue following our debate on the personal budgets regulations. I can now confirm, in response to the Joint Committee on Statutory Instruments’ report, that we will be amending the regulations to give greater clarity to the decision-making process, meeting the point raised by the Committee. The Secondary Legislation Scrutiny Committee expressed concern that the code may be too long and complex to be of use to families. I should point out that parents are not the code’s key audience. The chief audience is the range of bodies with statutory duties to fulfil and which must have regard to it. The changes that we have made to the code, including ones that have added to its length, respond to specific feedback on promoting clarity from those who need to have regard to it. The code covers most of the statutory provisions of the current system as well as significant new duties. It replaces three separate sets of guidance and contains a stronger emphasis on and links to the Equality Act 2010. It was absolutely clear that interested parties did not see shortening as a priority. Having a code that gave a clear explanation of the law and guidance that would speak to the wide range of statutory audiences was what mattered.

However, supporting parents in understanding the new system is of course key. The legislation ensures access to information, advice and support. We have provided £30 million over two years to recruit and train independent supporters, and we are co-producing with parents’ organisations a separate guide to the code specifically for parents, and separate materials for young people, both for publication as the reforms come into force.

--- Later in debate ---

[Baroness Hughes of Stretford (Lab)]

My Lords, a number of the points I was going to raise have already been raised so I am going to be brief. There are just a few points I would like to rehearse. First, I welcome the code of practice. It is long and complex but I have great sympathy with the people who have tried to put it together. Its language is certainly a big improvement. It is written in plain language, even if some issues about implementation still need to be a bit clearer. The Minister said rightly that this document is mainly for practitioners and managers. It has been the practice, certainly in the Department for Education and its predecessor, to produce slimmer, accessible versions for parents and young people and I wondered whether the department would consider doing this or at least commissioning someone else to do it.

Secondly, I agree with the noble Lord, Lord Ramsbotham, that the document is still a bit unclear as to what children without an EHC plan can expect. Worryingly, I found the following sentence on page 48 in relation to the local offer:

“In setting out what they ‘expect to be available’ local authorities should include provision which they believe will actually be available”.

By implication, that might include some provision that in fact will not be available. There is a lack of clarity there about what parents who have to rely on a local offer rather than an EHC plan can expect in reality. I wish the document had been stronger in its emphasis on the local authority making sure that what is in the local offer will be available to people.

Thirdly, on accountability, as the noble Baroness, Lady Howe, said, we are still waiting for the inspection framework that Ofsted was going to review and publish. I understand that the noble Lord, Lord Nash, indicated to my noble friend Lady Wilkins that an initial report would be out in late May. We have still not seen that from Ofsted, which makes it difficult to make an assessment about the accountability framework that Ofsted is going to apply.

Fourthly, I welcome the section on nought to two year-olds, and the fact that it is there, but I wonder whether the Minister could clarify something. It is written only for service providers, saying that they must do this and must do that, and does not say anything about the role of local authorities in relation to nought to two year-olds. Would he be prepared to put on record that local authorities are accountable for nought to two year-olds in terms of identifying and ensuring provision there, in the same way that they are for other age groups?

I also wanted to ask something about further education. It has come to my attention—this may be wrong, so I want to check it out—that the person designated as a SENCO in a further education college does not have to have special educational needs qualifications. Is this the case and, if it is, would the Government consider requiring those people to have those qualifications? My second point about FE is about inclusive provision. Having gone round a number of further education colleges and talked to young people, it is quite depressing, to some extent, to see what some FE colleges are providing for children with special educational needs: lots of preparation for living courses, but no identifying and enabling of those young people who could go on a mainstream vocational course. It is an option not often available to young people with special educational needs and disabilities. FE colleges should not be able simply to provide the kind of courses that they think are suitable and shoehorn people into them but should try to include disabled young people on mainstream courses for other students, where they can be included with support.

My last point is about the need for a review of the code and how it is being implemented. The Minister said that the Government would keep the code under review. The problem with that is that, if the department keeps it under review, the rest of us will really not know much about implementation. There needs to be a specific review at a point in time, the results of which are then published for us all to see.

[Lord Nash]

My Lords, I am grateful to all noble Lords for their comments and questions. I will try to address the points raised but I doubt whether I will manage to cover them all. Where I do not, I will write to noble Lords.

The noble Baroness, Lady Uddin, talked about inclusive education, particularly higher and further education. The code reflects the current position, which includes the general presumption that children with SEN should be taught in mainstream settings. That principle is extended to young people in further education through the Children and Families Act 2014. The code also highlights that schools and colleges have important 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 their policy and practice, which, since September 2012, has included providing auxiliary aid and services such as specialist computer programs et cetera. However, I note the point made by both the noble Baroness and the noble Baroness, Lady Hughes, and I would be interested to discuss further at the end the point she made to ensure that these colleges are taking their duties seriously.

The noble Lord, Lord Ramsbotham, is to be commended for reading all 270 pages. He must have done so in order to pick up the typographical error. The publication of the final code will not be determined in advance—he is right about that. However, in communicating with schools, colleges and local authorities on the implementation of the reforms, we have always made it clear that the version of the code issued for consultation on 16 April this year was sufficiently near to the final code for implementation-planning purposes. Key duties remain as they are currently for schools and early year providers. They will start to put in place from September the new approach to identifying and supporting children with SEN set out in the code and record those with SEN under SEN support in the January 2015 census. FE colleges will have a duty to use their best endeavours to ensure that young people with SEN get the help they need as they have always done, and will have regard to the approved code of practice.

We believe that the guidance provides a robust framework for supporting those without EHC plans which focuses on the impact of the support rather than how children access support according to the category they fit into. It will also challenge schools to improve the quality of teaching and learning for all pupils rather than inappropriately labelling some pupils as having SEN. The guidance makes clear that schools should involve parents in shaping the support that is provided, be more transparent about what support is available at the school, monitor the progress of all pupils and respond quickly where children are making inadequate progress. School leaders will be expected to include the quality of SEN support within their approach to school improvement, professional development and performance management arrangements.

More generally, we will keep the guidance and the code of practice under review, allowing proper time for the reforms to bed down, particularly as they are being implemented gradually from September. We made provision in the Children and Families Act for subsequent versions of the code to be approved under the negative procedure precisely to enable the code to be kept up to date more easily.

As regards the point about the Criminal Justice and Courts Bill, the Ministry of Justice has indicated that it will consult later this year on its approach to secure college rules. This will provide a further opportunity to contribute to the development of secure colleges and ensure that the needs of young people, in particular as regards their welfare and safety, are met. However, I will pass on the noble Lord’s remarks to try to ensure that when the Bill comes back later in the year he gets a better answer than the one he got last time.

The noble Lord, Lord Ramsbotham, also talked about enforceability and accountability. For the first year we will ask local authorities and parent carer forums to complete implementation surveys on a termly basis. These will focus on whether the key elements of the new statutory framework are working. We will take action, including appropriate support and intervention, where it is clear that a local authority is struggling to implement the reforms. For the longer term, we are developing an accountability framework for monitoring delivery of the reforms. We expect this to be in place from September next year. It will include an agreed approach for challenging poorly performing local authorities and taking more formal intervention action where necessary. The noble Baroness, Lady Howe, the noble Lord, Lord Low, and other noble Lords asked about Ofsted. Ofsted is now completing its survey of how local areas are working on the reforms and will make recommendations soon about the possible role of inspection in monitoring and accountability.

The noble Baroness, Lady Howe, also asked about the disabled students’ allowance. The noble Baroness will recognise that higher education institutions must meet their duties under the Equality Act. Students can challenge their institution under internal procedures if they do not get the support they should and can ultimately go to court. Currently, they would have to use the Student Loans Company procedures and, as I say, ultimately the courts. As far as appeals are concerned, the outcomes in the EHC plan are much broader than the objectives in the statement as they cover health and social care as well as education and training. Local authorities need to be able to take an integrated approach in describing outcomes in the EHC plan which reflect how a number of services may need to work together to deliver a particular outcome. Making the education and training outcomes themselves appealable could prevent local authorities taking an integrated approach in describing outcomes, but, of course, it remains the case that the special educational provision in an EHC plan is appealable through the tribunal.

My noble friend Lord Addington talked about encouraging charities to make their own version of the code in relation to their particular issues. We know that some organisations are already doing this, an example of which is the Communications Trust. I agree that such organisations are particularly well placed to do this. We are also working with the voluntary sector and other organisations to develop guides to the code of practice, particularly for parents, schools and NHS bodies. My noble friend also talked about training. In order to gain qualified teacher status, trainee teachers must meet national standards which require them to vary their approach to meet the different needs of children, including those with SEN. In 2012, some 76% of newly qualified primary school teachers and 89% of secondary NQTs rated their SEN training as “very good”. It is up to schools to decide what professional development their staff require, and it is true that the code sets out a range of sources of training materials.

For their part, the Government have supported improvements through the teaching schools programme, through their funding for the National Association for Special Educational Needs and its SEN and disability gateway, an online portal that provides access to a range of training resources, including on dyslexia, autism, speech, language and communication needs. We have also funded the training of more than 10,000 new SENCOs and are supporting Achievement for All 3As to provide leadership to help 1,200 schools in developing their provision for children with SEN. The code of practice makes it clear that school leaders should ensure that staff receive appropriate professional development, and the national training of new SENCOs includes an understanding of the main types of SEN, including dyslexia, speech, language and communication needs and autism.

The noble Lord, Lord Low, referred to special services for deaf children. The code recognises that it is up to the local authority to decide, with local children, young people and parents, what services to commission and to include in their local offer. That will include services for deaf children and those with other types of SEN. He asked whether the system will be ready in time for September. We have always been clear that the reforms will be implemented from this coming September. The key elements of the reforms were set out in a Green Paper in 2011. We have regularly been asking all local authorities in England how well they have been preparing, and local authorities are ready to go. Over 90% have reported that they are ready and the department is working closely with the others. Implementation will be gradual, and we have put in place a range of support, including the £70 million SEN reform grant in 2014-15 to help with plans for the reforms, along with £45 million in 2014-15 and £32 million in 2015-16 for the recruitment and training of independent supporters. We also have the regional SEN champions, drawn from the local pathfinders who have been testing the reforms in practice and from a range of delivery partners with specialist expertise in key areas such as person-centred planning.

I am extremely grateful to my noble friend Lord Storey for his supportive remarks. The noble Baroness, Lady Hollins, mentioned the guidance on mental capacity. We think that the guidance in the code on mental capacity is about right. It sets out how cases where young people and parents lack the mental capacity to take certain decisions under the Children and Families Act should be dealt with. We have provided a link to further advice on the Mental Capacity Act and have listed all the sections under Part 3 of the Children and Families Act in the regulations where mental capacity considerations come into play. However, I have listened to the points made by the noble Baroness and I will reflect on them. We will be able to consider this issue in a further review of the code.

--- Later in debate ---

[Lord Ramsbotham]

Could the Ofsted accountability framework be made available to the House as soon as it is published, so that we can see it?

[Lord Nash]

I will take that back and will ensure quickly that I check precisely where Ofsted is. If Ofsted is not where we think it might be, we might give it a bit of a chaser.

[Lord Low of Dalston]

May I, too, ask a question of the Minister? May I take him back to the question of disabled students in higher education and their ability to challenge the provision that is being made? I think that the Minister said that they would need to go to court. I assume that that would be by way of judicial review; and, of course, that is going to be much more difficult now that the scope of judicial review is being so much curtailed and the availability of legal aid for judicial review is so much reduced. That is going to significantly undermine the ability of disabled students to use the courts to resolve these problems. I wonder therefore if the Minister would be willing to give further consideration to a more substantial right of redress for disabled students in higher education.

[Lord Nash]

Of course, they have redress through the internal procedures of their college, but I will undertake to look at the noble Lord’s point carefully.

[The Deputy Chairman of Committees (The Countess of Mar) (CB)]

My Lords, it might be helpful if I tell noble Lords that there is no need for them to say “Before the noble Lord sits down” in Grand Committee. The only time that one uses it is at Report stage.