Special Educational Needs and Disability Code of Practice: 0 to 25 years
Lord Ramsbotham Excerpts(10 years, 4 months ago)
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Lord Ramsbotham (CB)
My Lords, there is a great deal to welcome in this document except its length; 270 pages is a vast amount. Perhaps I may point out one typographical error in paragraph 8.2 of the Explanatory Memorandum. According to that, the first consultation is not yet over because it lasts until 9 December 2014.
I have five short questions that I should like to put to the Minister. I am sure that they can all be answered fairly quickly. First, is the Minister satisfied that schools and education settings will be capable of identifying speech, language and communication needs from 1 September this year? That is only a month away and normally schools are given at least a term in order to prepare for new guidance they receive. I suppose that the answer will be that this draft, which is still a draft, has been around with some people for a long time, but it will not necessarily have been in every school. There is quite a lot of detail in this document, and I would be surprised if every school has mastered it by 1 September and able to put it into practice.
My second two questions relate to the children who are not mentioned as much here—those who are without EHC plans, about whom there was a great deal of questioning during the passage of the Children and Families Bill. First, is the Minister satisfied that appropriate support is in place for those children with speech, language and communication needs but without plans? Secondly, are the staff in schools adequately trained to provide support for those children without plans? We did not get a clear answer when the Bill was being passed and I still do not get it out of this vast document.
The document is still called a draft. I know that the Minister told us that it had been passed by the other place, but this short session here, when we do not have time to scrutinise the document, could not really be called the House of Lords “passing” the draft and approving it because we simply have not had time to go through all the detail in this 270-page document. Do the department intend to conduct a review of the code once it has been in action for a short time? When might that review be held and will it also be brought before the House so that we have an opportunity to see what the practitioners understand about it when it is being practised?
My fourth point refers to the welcome addition in relation to children in custody. During the passage of the Criminal Justice and Courts Bill last week, I asked the Minister what exactly was happening as far as the Ministry of Justice was concerned to amplify the statement made at Third Reading in the other place by the then Prisons Minister, Jeremy Wright, who said that,
“a great deal of … thought will be given to how those needs can be met”.—[Official Report, Commons, 12/5/14; col. 538.]
He was referring to special educational needs. Thought is okay but the Minister in the Lords did not answer my question as to what that meant, particularly given the two months that have passed since the Third Reading in the other place. I would be grateful if the Minister here can ensure that when I ask the question again on Report in October, when the Bill comes back, there will have been a discussion between the Department for Education and the Ministry of Justice so that the Minister is able to answer me and all the other Members of the House who have an interest in the special educational needs of those in custody. We were referring particularly to the proposed development of the secure college in the middle of Leicestershire, which allegedly will have 320 children aged between 12 and 17, boys and girls. Among them there will certainly be a very large number with speech, language and communication needs.
The last question refers to the word “must”, which appears time and time again in bold in the report. Who is the “must”? Who is going to do the “must” and who is going to oversee that the “must” has been done because there must be oversight; otherwise, the “must” will not happen? I would be very grateful if the Minister could enlighten me on that.
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?
Schools: Arts Subjects
Lord Ramsbotham Excerpts(10 years, 10 months ago)
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Lord Ramsbotham (CB)
Can the Minister confirm that arts subjects will be on the syllabus of the fortified secondary schools that the Ministry of Justice is establishing for the custody of young offenders?
Children and Families Bill
Lord Ramsbotham Excerpts(10 years, 10 months ago)
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Baroness Northover
My Lords, this group of amendments builds upon those that we brought forward on Report and, we hope, address some of the important points raised by noble Lords during that debate. We are grateful to those noble Lords who have continued to raise the important issue of support for young offenders with EHC plans in custody. I particularly thank the noble Lord, Lord Ramsbotham, for his expert and, as ever, very determined contributions throughout and for his continued determination to ensure this small but highly vulnerable group of children and young people get the support that they need.
I am pleased that noble Lords accepted the Government’s amendments on Report. That means that today’s debate is, I hope, starting from a strong position. The Bill already ensures that: young offenders, their parents and professionals working with them can request an assessment for an EHC plan and those assessments can now start in custody; EHC plans will provide up-to-date, current information on entry to custody, owing to the requirement for local authorities to maintain the EHC plans of those under 18 who are not in education, employment or training for any reason; both home local authorities and relevant NHS health service commissioners are under a duty to use their best endeavours to arrange the education and health provision set out in an EHC plan for children and young people in custody; EHC plans must be kept by the home local authority while a young offender is detained and must be reviewed and maintained again immediately on release; and both youth offending teams and relevant custodial institutions are required to co-operate with the local authority.
This is a significant set of improvements over the current system. However, now we want to go even further to address the remaining concerns expressed by noble Lords during our previous debate on this subject—namely, that “best endeavours” seemed, certainly in the mind of the noble Lord, Lord Ramsbotham, not to create a strong enough obligation on local authorities and health commissioners, and that youth custodial institutions should be required to have regard to the code of practice.
Following productive discussions between our officials, the Special Educational Consortium and the Standing Committee for Youth Justice, we are delighted to be able to say that through Amendments 28 and 29 we are strengthening the “best endeavours” duty so that it now says that local authorities and relevant health commissioners must arrange appropriate special educational and appropriate health provision.
Not only that, but Amendments 30 and 31 amend the definition of “appropriate provision” so that it is clear that local authorities and health service commissioners must first seek to arrange the provision that is in an EHC plan. Where that is not practicable, they will arrange provision that corresponds as closely as possible to the EHC plan. Where what is in the EHC plan is no longer appropriate, the local authority or NHS health commissioner must arrange an alternative that is appropriate.
Amendments 22 and 32 also require both relevant youth accommodation and youth offending teams to have regard to the code of practice. This means that we can set out in statutory guidance how we expect them to fulfil their duties to co-operate with the local authority in ensuring that children and young people with EHC plans receive the support they need while in custody.
These changes will be further strengthened in future by commitments in the Ministry of Justice’s response to the Transforming Youth Custody consultation published in January. I know that my noble friend Lady Walmsley—I see that she is not in her place, but I hope she will hear this—will be pleased to hear that, in response to an e-mail from her, this document makes it clear that the arrangements for the new providers of education in young offender institutions, due to be in place by November this year, will require them to co-operate with local authorities in regard to young offenders with EHC plans. They will also retain the existing responsibilities that the current providers have for identifying and supporting young offenders with SEN. The document also makes it clear that identification and support for those with SEN will be part of the new secure colleges that the Government will set up through forthcoming legislation.
Finally, Amendment 34 will remove Clause 76, previously Clause 70. Due to an oversight, the amendment to delete this clause was inadvertently not moved following the debate on Report. I am sure that that was entirely my fault.
Taken together, these amendments will strengthen the changes that noble Lords agreed on Report and will ensure that children and young people with EHC plans in custody will receive the support that they need. I hope that noble Lords will be happy to support them.
Lord Ramsbotham (CB)
My Lords, I am extremely grateful to the Minister for what she has just said, and also for the many discussions and debates that we have had with both Ministers and officials during the Bill’s passage. I am extremely grateful for what has been done. Not only is it a great advance on what was there before but it has the benefit of building on the experience of many years ago regarding what could and should be possible in young offender institutions for people with problems that have otherwise gone unaddressed. I am particularly grateful for the movement that has been made since Report and for the strengthening of the requirement on local authorities to make certain that the change has happened.
I am also extremely grateful for two other things. The first was the Minister’s assurance that those of us who are interested in this subject, including people who are far more expert in it than I am, will be involved in the preparation of a code of practice which will be such an extremely important document in the future. The second was her assurance that the Ministry of Justice will be involved in those discussions as well. As I have explained before, there have been many good initiatives around the country but the Ministry of Justice’s response to them has not been all that was desired and they have been dropped.
Finally, I am grateful for the platform that has been provided for youth offending teams. A disturbing fact is that few commissioning groups in the country appear to realise that they have a responsibility for things such as mental health treatment of people who are undergoing community sentences. The fact that that is on the statute book with a clear “must” will provide just the stimulus that is needed to pull people together and make things better. I really am grateful for all the work that Ministers and officials have done on this part of the Bill.
Baroness Warnock (CB)
Having put my name to the original amendment to remove the then Clause 70, perhaps I may also add my gratitude. This is a real step forward in the education of young people in custody—not just people with special educational needs, which most of them have in any case. In general, it is a landmark move forward, so I express my appreciation to the Government for that.
Lord Ramsbotham
“Use of the Human Rights Act in legal proceedings
After section 2F of the Children Act 2004 (as inserted by section 101) insert—“2G Use of the Human Rights Act in legal proceedings
The Commissioner may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose—(a) the Commissioner need not be a victim or potential victim of the unlawful act to which the proceedings relate,(b) the Commissioner may act only if there is or would be one or more victims of the unlawful act,(c) section 7(3) and (4) of that Act shall not apply, and(d) no award of damages may be made to the Commissioner (whether or not the exception in section 8(3) of that Act applies);and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section.””
Lord Ramsbotham
My Lords, I am conscious that my amendment is something of an oddity today because it is the only non-government amendment on the list. I raise it because I still have hopes that it might become a government amendment. It is an amplification of a point that I raised on Report, and about which I asked a supplementary question of the Minister.
The issue concerns the Children’s Commissioner and the request that he or she would share equal footing with the equality and human rights commissioner in being able to bring cases under the Human Rights Act. On Report, the Minister said that initiating and intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function; I certainly took that at face value. Following on, he said that the commissioner would have sufficient interest in a case, because of his or her statutory role to promote and protect children’s rights, to satisfy any judge who might question the right of the commissioner to intervene. He emphasised that the Government did not wish to put into the Bill anything to do with such a right, but assured me in answer to a supplementary question that incoming commissioners would be briefed on their powers in bringing cases before courts.
Unfortunately, about half an hour before the Public Bill Office closed for business last night, the Children’s Rights Alliance for England contacted me, having consulted legally—unfortunately, after the good meeting I had earlier had with Ministers about the Bill. The alliance pointed out that, currently, the Children’s Commissioner is actually prohibited from bringing legal proceedings under the Human Rights Act because to do so you have to be a victim. The Children’s Commissioner does not qualify as a victim in a case.
This was got around for the equality and human rights commissioner through a clause in the Equality Act 2006, which made an amendment to Section 7 of the Human Rights Act, allowing the equality and human rights commissioner to bring legal proceedings. All I am seeking, as I did on Report, is to acknowledge the Minister saying that he agreed that the two commissioners should have equal rights; and that amendments, instead of being made to the Equality Act, should be made to this Bill and to the Children Act 2004, to allow the Children’s Commissioner to bring things forward without running into the risk of being prohibited to do so by something which I suspect was not meant by the Government or anyone else. That is why I move the amendment. I apologise for doing so at this late hour, but we have made so much progress in the Bill that I hope that the Minister, in the spirit in which he has tackled everything else, will feel able to reconsider my original request.
Baroness Howe of Idlicote
My Lords, I support everything that my noble friend has said. I very much hope that the Minister will find a way to make this a possibility.
Lord Ramsbotham
My Lords, I thank the Minister for the care and attention he has given to his reply to my amendment. All of us in this House were enlightened by what he had to say and I am gratified to hear his confirmation that the Dunford report’s proposal for close working between the equality and human rights commissioner and the Children’s Commissioner is something that will be encouraged. If that happens, and they work together, the actual office of Children’s Commissioner is bound to be strengthened. I am sure that, when noble Lords look at the Hansard of the debate and see the care and content of the Minister’s summing up, they will reflect that we have indeed been fortunate throughout this Bill in having such care and attention paid to all the points that we have raised. That has been one of the great pleasures of it.
Having already thanked the Minister and the Bill team, I would like to mention something that I forgot: I thank him for the frequent letters and contacts, which were enormously helpful and made the lives of those who had no research support much easier. As the Minister said, there will be a lot of people who will look back on this Bill—particularly children and young people in the future—with greater opportunity than there was previously. That has been due to the work of an awful lot of people. It has been a great pleasure and privilege to be one of those involved. I beg leave to withdraw my amendment.
Children and Families Bill
Lord Ramsbotham Excerpts(10 years, 10 months ago)
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Lord Ramsbotham (CB)
My Lords, I declare an interest as vice-chairman of the Institute for Food, Brain and Behaviour. I entirely accept what the Minister said about the value of nutrition. For two or three years we have conducted work in a secondary school in Dagenham. That work is about to be published and shows the value of correct nutrition on not just the educational awareness of children but also on their behaviour. We would be very happy to share this research with the Minister and her officials.
Baroness Lister of Burtersett (Lab)
My Lords, I warmly welcome the amendment and the Minister has underlined the case for it. I have two questions. What will be done to monitor the effects of the new provisions with a view to considering whether to extend them to other age groups, as the proposed new clause would allow, and what criteria will be used in considering whether to extend them? Will the Minister explain what the implications will be for the pupil premium, because eligibility for the funding of it is tied to free school meal eligibility, and if free school meal eligibility is being extended in this way does this mean that the pupil premium will also be extended?
Baroness Massey of Darwen
My Lords, in moving Amendment 59A, I also wish to support Amendments 59B and 59F, to which the noble Lord, Lord Ramsbotham, will mainly speak. I want to make three very quick points about the Children’s Commissioner. One is about human rights, one is about the commissioner’s powers and one is about his appointment.
I thank the Minister and his team for investigating the concerns expressed in Committee and for his helpful and clear letter. We are particularly grateful that the Government have now published the framework agreement between the Department for Education and the Office of the Children’s Commissioner.
The introduction of that framework contains a statement on the independence of the Children’s Commissioner and the overarching principles. However, neither the framework nor the Minister’s letter contain the UN affirmation that national human rights institutions such as the Office of the Children’s Commissioner should clearly state that members and staff of such bodies,
“will not receive instructions from government ministers or other public officials, directly or indirectly”.
I do not see the issue of prohibition directly spelled out in the letter or the framework.
Secondly, I realise that the commissioner still does not have the power under the Human Rights Act to deliver on individual cases. I understand the reason for that: it would be an impossible task. However, the amendment of the noble Lord, Lord Ramsbotham, with which I agree, seeks to draw attention to particular groups with specific problems—for example, children in custody, unaccompanied migrants and trafficked children. In other words, it is about children who are living without their parents—a particularly vulnerable group. I shall leave the noble Lord, Lord Ramsbotham, to elaborate on that but I have my own concerns.
My third concern relates to the appointment of the Children’s Commissioner. I hope that the appointment will be independent of political bias. It requires someone who has strong experience of working with children and children’s services in the voluntary sector and who understands the wide scope involved in dealing with all kinds of children, particularly vulnerable children, at a national and local level. The person who is appointed, whoever he or she might be, must command the respect of the children’s sector. I know that Parliament, children’s charities and children’s services will follow this appointment keenly to ensure that they are fulfilling all the demands that they have to fulfil. I beg to move.
Lord Ramsbotham
I am grateful to the Minister for his letters and the draft framework agreement in which I note that the Children’s Commissioner is classified as a non-departmental public body and that it is for the commissioner to determine what activities to undertake in carrying out his or her primary function. I am therefore glad to see that the provisions that currently allow the Secretary of State to direct the commissioner’s work are to be repealed but, like the noble Baroness, Lady Massey, I do not feel completely confident about the appointment process. That is why I have added my name to her Amendment 59A, to which she has spoken so comprehensively.
Turning to my Amendments 59B and 59F, the aim of Amendment 59B is twofold. First, it is to ensure that the expectation of the UN Committee on the Rights of the Child that all children’s commissioners shall have the power to bring and intervene in court cases to ensure that children’s rights are respected is made explicit in the Bill. Legal cases can be complex, lengthy, expensive, intimidating and distressing for children, who are often unable or unwilling to take action themselves. In addition, courts are likely to be even less accessible to children following cuts to legal aid and proposals for further reform of legal aid and judicial review.
The second purpose is to put the commissioner on an equal footing with the Equality and Human Rights Commission in being able to bring cases under the main legal protection for children in this country, the Human Rights Act. It should not be presumed that the commissioner will automatically take up every case but it will be up to him or her to decide which ones to pursue.
Amendment 59F would expand on the list of those groups of children currently under the remit of the Office for the Children’s Rights Director to whom the Children’s Commissioner must provide advice and assistance. At present, Clause 86 prohibits the commissioner from providing advice and assistance to children living away from home or receiving social care who are not within the group defined in Clause 93. As I have seen all too often, there is considerable inconsistency in how children in custody or migrant children are looked after by those responsible for them. I have not had the same practical experience of trafficked children but, in view of their vulnerability and possible legal needs, it would be invidious to leave them out of this proposed addition.
Finally, more generally, as the Bill has progressed—and particularly in relation to the best endeavours rather than duties that the Government expect to be sufficient demand on local authorities and others to ensure delivery of EHC plans and other SEN provision—I see the need for an informed, independent monitor to ensure that those best endeavours are resulting in what the Government expect. As I have said previously, the code of practice is full of “musts” without being specific about how a “must” is to be implemented or overseen. I suggest that the role of overseer of best endeavours and musts is a natural addition to the responsibility of the Children’s Commissioner, being entirely in line with new Sections 2(1) and 2(3)(a) of the Children Act set out in Clause 86. New Section 2(1) states:
“The Children’s Commissioner’s primary function is promoting and protecting the rights of children in England”.
New Section 2(3)(a) states:
“In the discharge of the primary function the Children’s Commissioner may, in particular … advise persons excising functions or engaged in activities affecting children on how to act compatibly with the rights of children”.
Lord Ramsbotham
I am sorry to delay proceedings, but can the Minister, in the light of what he has just said, assure me that an incoming commissioner will at least be made aware of that provision, and that the assurance that he has just given to the House will be repeated in that briefing?
Lord Nash
I am delighted to give that assurance to the noble Lord. Thirdly, including an explicit reference to initiating and intervening in legal proceedings would raise expectations that the commissioner will take up legal challenges on behalf of any individual or group who brings a matter to the commissioner’s attention. The Office of the Children’s Commissioner is clearly not resourced to operate in that way, and it could end up wasting time defending decisions not to take up particular cases.
I turn now to Amendment 59F, also tabled by the noble Lord, Lord Ramsbotham, which would add categories of children—–namely, children in custody, children who have been trafficked and unaccompanied migrant children—to the definition at new Section 8A, which is inserted by Clause 93. In the Government’s view, it is not possible to define precisely in legislation every interaction that the commissioner and his or her staff might have with children; nor would we want to. What the legislation seeks to do, therefore, is to put down some clear markers that are designed to achieve particular objectives.
First, as noble Lords will be aware, there is a provision that prevents the commissioner investigating individual cases. This is specifically to avoid the commissioner getting swamped with individual casework at the expense of his or her strategic role. John Dunford’s report was clear that where commissioners had taken on a full ombudsman’s role, it had reduced their impact.
Secondly, as recommended by John Dunford, we have included provisions in the legislation that ensure, as far as possible, that the support provided to children within the Children’s Rights Director’s remit can and will continue under the new arrangements. Beyond that, we do not wish to try to enshrine in legislation what level of support the commissioner should provide to individual children who may contact the commissioner or his or her staff. It is inevitable, as now, that children will contact the commissioner through, for example, the OCC’s website. Where they do, we of course expect the commissioner to offer appropriate help.
In many cases, that help would involve signposting the child to information or support. In others, it would involve helping the child to access an existing complaints or advocacy service, while in other cases it may involve the commissioner providing support that is similar to the “advice and assistance” function that the CRD currently provides. Ultimately, if the commissioner felt that the child’s case highlighted a matter of wider strategic importance, he or she could conduct an investigation into that issue. Our view, therefore, is that it should be for the commissioner to determine what level of support to provide to children when they approach him or her. That is why we do not wish to describe how the commissioner should interact with children in legislation, beyond the two exceptions mentioned earlier.
I do not therefore believe that it is necessary to extend the definition at Section 8A to include the groups of children that the noble Lord proposes. The commissioner will have wide-ranging functions and powers to give him or her the flexibility to support children as he or she deems appropriate in the exercise of the primary function of promoting and protecting children’s rights. Many of those children will, in fact, already be covered by Section 8A because they are living away from home and/or are in receipt of local authority services. For example, children on remand to youth detention accommodation are treated as looked-after children.
For children in custody, there are already adequate complaints, grievance and disciplinary systems in place, which the noble Lord will be familiar with, in young offender institutions, secure training centres and secure children’s homes to enable young people to resolve issues relating to their detention. Advocacy services are also provided in YOIs, STCs and SCHs to assist young people in navigating the complaints, grievance or disciplinary systems. Advocacy is provided by Barnardo’s in young offender institutions and secure training centres, with local arrangements in place in secure children’s homes. If a young person is not satisfied with the outcome of a complaint, they are able to refer the issue to the Prisons and Probation Ombudsman, the statutory monitor or the local authority.
Not extending the advice and assistance role to children in custody does not mean that the commissioner cannot investigate matters within the juvenile secure estate as part of a wider investigation. In fact, the commissioner has already done so—for example, with the commissioner’s inquiry into the support available in the youth justice system for young people with mental health issues. So far as the Children’s Commissioner looking at new SEN support in custody is concerned, the key plank of these reforms is to make it clear that the Secretary of State cannot direct the Children’s Commissioner. However, if he or she wishes to consider the SEN reforms, he or she is of course able to do so.
Children and Families Bill
Lord Ramsbotham Excerpts(10 years, 10 months ago)
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Lord Ramsbotham (CB)
My Lords, I support my noble friend Lord Northbourne and his amendment. We discussed places of detention in another part of the Bill, so I ask the Minister once again to remember that in addition to schools it is hugely important that the subjects that my noble friend has just mentioned are added to the syllabus in places of detention with young offenders and that they must not be excluded. I remind the House of a course I found in a young offender institution in Belfast, which was one of the best preparations for life that I have come across. It was called “Learning to Live Alone”, and it had all the things that we have been talking about. I am only sad that it was dropped later by a not-so-wise governor.
Lord Hylton (CB)
My Lords, both amendments in this group are full of good points. Therefore, I ask the Minister to take them both away and come back at Third Reading with a consolidated and generally agreed amendment that incorporates all the good points from both.
Children and Families Bill
Lord Ramsbotham Excerpts(10 years, 11 months ago)
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Lord Nash
My Lords, I rise to move the group of government amendments starting with Amendment 27A. These amendments will strengthen provision for children and young people with special educational needs in the youth justice system. Provision for young offenders has been the subject of considerable debate during the passage of this Bill, both in this Chamber and in the other place. This is an issue that we must get right. Evidence suggests that nearly one in five young people in custody has a statement of special educational needs. I offer my sincere gratitude to the noble Lords who have pursued this matter, particularly the noble Lord, Lord Ramsbotham. I have benefited considerably from his expertise in this area, and I pay tribute to his tireless efforts to secure better outcomes for those with SEN in custody.
I also offer my thanks and appreciation to the noble Baroness, Lady Howarth, and my noble friends Lord Addington, Lord Storey and Lady Walmsley, all of whom have contributed valuably to this discussion. I have considered all representations on this issue very carefully, and I am now pleased to bring forward a series of amendments that will considerably strengthen protections for this vulnerable group.
The noble Lord, Lord Ramsbotham, has tabled Amendment 50, which I support, removing Clause 70 of the Bill, which currently disapplies Part 3 of the Bill to children and young people in detention. The Government’s amendments would replace Clause 70 with new provisions after Clause 65, which would enable education, health and care assessments to take place for a detained child or young person; require home local authorities and health service commissioners to use their best endeavours to arrange the special education and health provision specified in a plan during the period in custody; and require relevant youth custodial institutions—that is, young offender institutions, secure children’s homes and secure training centres—to co-operate with the home local authority when arranging support for young offenders with SEN. These changes will ensure that needs are identified and assessed at the earliest opportunity, that the best possible support is provided to young people in custody, and that there is a single point of accountability before, during and after their period in detention.
The first clause affected by this group of amendments is Clause 28, hence our consideration at this time. However, in the interests of clarity, I will firstly explain the substantive amendments that we would introduce after Clause 65. The point at which a child or young person is first detained is a crucial opportunity to identify special educational needs. Amendments 47B and 47C would allow the custodial institution, and the detained person or their parent, to request a full, statutory education, health and care assessment from the detained person’s home local authority. Under our amendments, a home local authority must also determine whether to conduct an assessment when a detained child or young person has been brought to its attention by someone else—for example, a professional working with the child or young person. This will support early identification of needs; it will also make best use of the time that a young person is in detention so that an assessment can get under way and support be put in place immediately upon release.
Amendment 47D would extend the right to appeal to a detained young person or a detained child’s parent when they were unhappy with a local authority decision not to carry out an assessment or a decision not to make provision following an assessment.
Amendment 47E would require a child or young person’s home local authority to use its best endeavours to arrange the special educational provision specified in the EHC plan while they are in custody. This is a strong and robust statutory duty, requiring the home local authority to do everything in its power to arrange the specified provision, or provision corresponding as closely as possible to it, or other appropriate provision while the individual is detained. Placing this duty on the home local authority will provide continuity and stability that is not present under existing arrangements. It will significantly improve accountability and ensure that, wherever a child or young person is detained, there remains a single point of accountability and a single contact for their families. It also creates a strong incentive for the home authority to arrange the best possible provision, as it will remain responsible for that child or young person throughout their period of detention and afterwards when they return home.
Amendment 47E would also create a parallel requirement for a detained child or young person’s health services commissioner to use its best endeavours to arrange the healthcare provision specified in an EHC plan. Where a child or young person is detained in custody, the relevant health services commissioner would be NHS England. This is a new duty, which would require the health service commissioner to do everything in its power to arrange the specified provision, or provision corresponding as closely as possible to it, or other appropriate provision while the individual is detained.
Amendment 27A to Clause 28 and Amendments 33HA to 33HK to Clause 31 would require relevant secure institutions—young offender institutions, secure children’s homes and secure training centres—to co-operate with the local authority. These amendments will require governors of young offender institutions or those in charge of other establishments in the youth secure estate to work with local authorities to deliver the best possible support for those in custody. These new statutory requirements will give local authorities the backing they need to ensure that custodial institutions play their part. This also reflects the Government’s ambition to place education at the heart of youth detention, set out in the Transforming Youth Custody consultation paper.
In addition to these substantive changes, we have also made a series of technical supporting amendments to Clauses 36 and 48, and to Schedule 3. These supporting amendments also include adding a new clause, “Application of Part to detained persons”, which includes a regulatory power to apply further provisions to detained people. These regulations, along with a revised section within the code of practice, will allow us to set out more detail about how we expect these new duties to operate in practice, and the relative roles and responsibilities of each party.
Amendments to Schedule 3 make consequential amendments to the Education Act 1996 to reflect the fact that these new provisions would replace existing provisions in England, but not in Wales. The Government, in consultation with the Welsh Ministers, would have the power to amend provisions by regulation. This package of amendments represents a much more robust statutory framework for detained young people, which responds to the valuable contributions and issues raised by noble Lords, for which, as I say, I am extremely grateful. I beg to move.
Lord Ramsbotham (CB)
My Lords, I begin by thanking the Minister for his courteous words in his introduction. I feel that we are almost there on children in detention, but not quite. I fear that some work remains to be done to ensure that the intent outlined in the Government’s amendments is brought to pass. I am very grateful for the many meetings and discussions which have resulted in the amendments that the Minister outlined, which make my Clause 70 stand part debate irrelevant. However, both as a former soldier and Chief Inspector of Prisons, I admit to remaining unease, fuelled in particular by proposed new subsection (4) of Amendment 47E, which requires a home local authority to,
“use its best endeavours to arrange appropriate special educational provision for the detained person”.
Those words seem far too weak to ensure that anything actually happens.
I refer to the intent behind my Amendment 49, which—despite much of the content having been, like my stand part debate, made irrelevant by the government amendments—remains very much extant in intent. To me, “best endeavours” is too weak because it leaves too much open for too many individuals to interpret to allow consistent provision of what is intended. Therefore, I plead guilty to falling back on a concept that underpins consistent provision of what is intended in the Army, namely duty. In the long-term interests of young people with special educational needs, quite apart from the best interests of the country as a whole, I can see no reason why, rather than leave such provision to chance, a duty should not be put both on a local authority to arrange that provision be made for an EHC plan to be continued in custody, and on places of detention to deliver what is required in such a plan. That is what it appears that the Government intend, because proposed new subsection (1) of Amendment 47C states that a home local authority must secure that an EHC plan is prepared for a detained person. Unfortunately, though, as I have bemoaned on many previous occasions, such an intent is unachievable because the Ministry of Justice cannot guarantee to deliver what is arranged, prepared or required.
Unlike any other operational organisation such as a school, hospital or business, the Prison Service makes no one responsible or accountable for the treatment and conditions of any group of people in custody such as women, children or young people. Not only is the governor of any place of detention not bound to continue any practice that was in place when he or she took over, but alone determines what is or is not appropriate and will or will not be provided. Having campaigned unsuccessfully for 19 years to have this changed, and having seen far too many promising initiatives and developments dropped—wholly wrongly and unnecessarily—I suggest that if the Government mean what appears to be the intent of this group of amendments they must do something about the wording in proposed new subsection (1) of Amendment 47C and proposed new subsection (4) of Amendment 47E because, as set down, they are incapable of securing anything. I put it to the Minister that neither the Government nor any local authority should feel comfortable that the Ministry of Justice at present lacks the means of ensuring EHC plan provision in places of detention. Therefore, not least to ensure the credibility of government legislation, he should be seeking other means of securing it.
I turn to the code of practice, which has been mentioned many times during the passage of the Bill and is currently out for consultation. At present, certainly to a lay man such as me, the code appears to be a vast document, full of “musts”, without any specification about who is to deliver them or oversee their provision. The Minister has often emphasised the store the Government set by the code, and I therefore ask him whether he sees it as the vehicle by which the problem I have outlined is to be remedied. If he does, I ask him whether he will reconsider the wording in the government amendments and tell the House, probably at Third Reading, exactly how the code of practice will be worded so that provision of EHC plans is secure. I understand that NHS England is responsible for contracting provision of the healthcare part of any plan from an appropriate local provider, but I would be grateful for information on how exactly that is to be secured. I use the word “security” deliberately because local authorities, which are responsible for the continuation of any provision after the release of anyone from detention, will have a vested interest in the quantity and quality of the provision of what they are told that they must secure, but over whose provision they have virtually no control. In other words, as I said at the start of my contribution, we are nearly there but I suggest that we need one last shove before we can feel certain that provision of what the Government want is secure.
Lord Nash
I have no idea, but I hope that by the time I have finished dealing with the amendment of my noble friend Lord Addington, I might have an answer.
My noble friend Lord Addington tabled Amendment 48A to require the host local authority to make arrangements to ensure that the workforce has the skills and knowledge to identify special educational needs and put in place effective interventions. It is already a requirement of those we commission to deliver education in the youth secure estate to ensure that the needs of those young people with SEN are properly identified and addressed. Education providers in the youth secure estate are contractually required to have an appropriately trained and qualified workforce to conduct assessments. They will also have a SENCO who is responsible for managing the effective delivery of specialist SEN services.
Education providers are required to conduct an educational assessment of anyone entering custody unless this information is already known. That includes both assessments of levels of literacy, language and numeracy, and the screening of anyone who shows signs of a specific learning difficulty or special educational need. They also use a variety of tools for this purpose, including the hidden disabilities questionnaire developed by Dyslexia Action which screens for a range of hidden disabilities. Provision is subject to regular inspection by Ofsted, where appropriate working with HM Inspectorate of Prisons.
The current contract between the Education Funding Agency and education providers for young offender institutions requires all secure settings to have: procedures for ensuring that the identification and support of specific learning difficulties in young offenders is inspected, evaluated, monitored, reviewed and developed; and an appropriately trained workforce that will identify and support a young offender’s individual learning needs and deliver relevant and individually tailored programmes of learning support to those young offenders whose profiles provide evidence of specific learning difficulties. With the amendments I have proposed today, a young person identified as being at risk as a result of the screening process could be referred for a full EHC assessment. In view of this, and the existing requirements on providers and the amendments I have outlined, I hope that my noble friend will not press his amendment.
I am confident that the government amendments in this group will result in vastly improved provision for children and young people with SEN in custody, and that they address the views and concerns of noble Lords. We have made significant steps on this. As I said, I would be very happy to continue discussing this further—including, if I may, the point made by the noble Baroness, Lady Hughes.
Lord Ramsbotham
I thank the Minister for the way in which, as other noble Lords said, he has listened during all our discussions. We have come a long way, but I am still nervous that we have people under the age of 18 in young offender institutions, but health and care plans continue from nought to 25; and we have the problem of the over-18s who will be dispersed elsewhere and who will now, under plans from the Ministry of Justice, no longer go to young offender institutions, but may be sent to adult institutions all over the country.
My nervousness is not so much about the home local authority drawing up the plan but about the actual implications. A great gulf seems still to exist between the intent of the Department for Education, which has been so clearly set out by the Minister, and the ability of the Ministry of Justice to deliver what is required and laid down in legislation. I hope that when we discuss the application of the code of practice, the Ministry of Justice will be present and will be required to set out exactly how it will deliver what is in the code.
Lord Ramsbotham
My Lords, I warmly support the intent behind the amendment in the names of my noble friends Lady Wilkins, Lady Howe and Lord Low of Dalston. However, as a former chief inspector, I have to admit that I am a little concerned about the confusion between inspection and regulation that is implied within it. Three separate functions are involved in oversight: audit, regulation and inspection. They are all different and are carried out in a different way. An audit can be a largely internal activity. Regulation must involve somebody directing that something has to happen. Inspection, if it is to mean anything, should be both independent and objective and therefore able to consider all the nuances of what is to be inspected. I note with interest that the current lack of accountability, which was described as weak accountability by my noble friend Lady Howe, has already been mentioned many times during the course of this debate.
This amendment is really a plea to the Government to think very carefully about how they are going to ensure oversight of an essential local authority provision, because currently there are no inspectors capable of carrying out that function. I refer the Minister to a precedent which might be followed—namely, the inspections of the safeguarding of children which were carried out by the old Commission for Social Care Inspection, which was abolished by the previous Government. It consisted of inspectors from Ofsted, the prisons inspectorate, the Department for Education and the Audit Commission, because it had a responsibility to look at local government and, of course, healthcare. The reports that were produced on safeguarding children are models that could be followed in this case as they covered many aspects which Ofsted does not have the skill to cover given that it is essentially concerned with education and a lot of the relevant provision concerns either healthcare or social care. Ofsted is not responsible for healthcare and I do not believe that it is very good at social care either.
The other thing that has to be remembered is that when we are talking about special educational needs, we are talking not just about the under-18s who come under the school regime but about the age range of nought to 25, as was mentioned earlier today in connection with detention. Therefore, we have to consider the inspection of local government provision for people other than those at school. The review that has been announced for next spring, carried out by Ofsted, should be stopped as I do not think that it is adequate. What the Government should do is consider very carefully a much wider examination of who is needed to conduct the oversight of all the activities that have been mentioned at various stages of the Bill. Unless they do that, not just the accountability but the oversight of something as important as this, on which we have made so much progress thanks to the way that the Minister has handled the Bill, is in jeopardy of being lost. That would be a tragedy.
Baroness Sharp of Guildford
My Lords, I have some sympathy with the amendment. Earlier today we rejected the notion of minimum standards being laid down for local authorities but we made it very clear in that debate that this was a matter for local authorities and that we wanted to see them use their discretion and compete with each other to provide high-quality services for those with special educational needs. Equally, in discussing the local offer, we were concerned not just with those classed as having special educational needs but with the wider community of children who have special educational needs. That is a very large number of children, as has been mentioned already. Some 1.4 million children fall into that category and are served by their schools but depend very much at the moment on local authority services to supplement what the school SENCOs and the school staff can provide.
There is enormous variation between what local authorities do in this regard. Picking up the point made by the noble Lord, Lord Ramsbotham, I believe I am right in saying that Ofsted currently inspects children’s services within local authorities. In so far as it is inspecting children’s services, including protection services, it would not be so difficult for it to take account also of the special educational needs services provided by local authorities. It seems to me that this is not an impossible situation and that the point that the noble Baronesses, Lady Wilkins and Lady Howe, made on accountability, and the need for it, is very important.
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Baroness Howe of Idlicote (CB)
My Lords, I will add a brief note. While I probably agree that the Bill is not the right place for these proposals, I remember the excitement of the early days when I appeared in your Lordships’ House and what was then the new Labour Government had brought in something called citizenship. It generated a lot of excitement because it would obviously have been a good place in which to put over the responsibilities of parents. Alas, it never happened, because citizenship got whizzed all over the place.
I have somewhat changed my views over time on PHSE. That also could be used rather more effectively in schools in the future in these areas. Above all, I emphasise the point that the earlier you can work with children on what their own children are going to need, the better. Hopefully, not only will it prepare them for being better parents but it might also help them be rather better sisters and brothers, if they are living in households where they need that extra guidance.
Lord Ramsbotham (CB)
My Lords, yet again one finds oneself rising in admiration for my noble friend Lord Northbourne’s persistence in pursuing these matters over and again. I always listen with great care to the good sense that he exposes on these occasions.
Recently I had to inspect prisons in Kenya on an extradition case. I was very struck that as we went inside each prison, there was a large board that was published by the Human Rights Commission of Kenya, listing the rights of prisoners and, underneath them, a list of their responsibilities. Reflecting on what my noble and learned friend Lady Butler-Sloss said, I remember seeing in a young offender establishment in Belfast the most imaginative course that I have seen for young people, which was called “Learning to live alone”. In addition to all the practical things that it taught them, parenting skills were in there. I remember being very taken by the fact that the question of rights and responsibilities was used in that course to educate them in their responsibility as parents. It was very well and admirably done, because it was not overdone; one has to be terribly careful about preaching to the young. The sooner that one can start getting the idea of parental responsibility out while people are at school, rather than waiting until they become parents, the better.
Lord Elystan-Morgan (CB)
My Lords, there is very little that I wish to add, or indeed properly could, to what has been said so splendidly by everyone who has taken part. I join in congratulating my noble friend Lord Northbourne. He has been dedicated, committed and consistent in his campaign, and I am sure that it does not end today.
The one point that I wish to make, which follows on from what has already been said by more than one contributor to this debate, relates to fathers. We hear so often of fathers who have been deprived of custody of their children, and indeed of contact with them. A huge campaign, which I think is very misinformed, has been fought over the years, and I know many judges who have suffered considerably on account of the malicious attitudes of people in that connection. The point that I wish to make is the obvious one: we should be thinking all the time of those hundreds of thousands, possibly millions, of fathers who have no interest whatever in maintaining any relationship with their children. As a circuit judge sitting in family matters, I felt that if there was a magic wand that one could wave to bring about a better situation in the family context, it would be someone to inculcate those people with a feeling for their responsibility.
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Baroness Butler-Sloss (CB)
My Lords, several members of my family have varying degrees of dyslexia. All are able and intelligent, and have talents. My daughter-in-law, who has moderate dyslexia, has an excellent degree from the University of Bristol. It can be done but these people must have extra. That group of young people who want apprenticeships will be a loss to the country if they cannot get through the necessary exams. It is a major advantage for the country to make sure that they get through. The noble Lord, Lord Addington, and the noble Baroness, Lady Walmsley, have put this case extremely well. It is a relatively simple matter and I endorse the excellent work done by this Government in many respects, particularly on apprenticeships, but we should not leave out this important group. The funny thing about this is that it is often not properly appreciated that an enormous number of young people are dyslexic. Let us get out there, find them, help them and make them really useful members of society—without, as the noble Baroness, Lady Walmsley, said, “NEET” across their foreheads.
Lord Ramsbotham (CB)
My Lords, my amendment is very short and applies to many other aspects of this part of the Bill, particularly anything connected with assessment and further work, which, as my amendment states, should happen as soon as possible. I tabled it because I was disappointed that although this clause has, “Using best endeavours” in its title, there was no reference to a sense of urgency. Urgency is needed, as has been vividly explained by the noble Lord, Lord Addington, because people who have been identified with a possible SEN must be given the opportunity of developing as soon as possible so that their valuable time is not wasted. That is the purpose of my amendment.
Baroness Howe of Idlicote
My Lords, I very much support this group of amendments and we have heard passionate speeches about this whole area. Autism and other such problems that individuals face are issues of which people are increasingly aware. Above all, it is vital that we support the noble Lord, Lord Addington, and the noble Baroness, Lady Walmsley, in what they have said. We will be creating more valuable qualified members of the community and making a life for people who have had much less of a life in the past.
If we take the point just made by my noble friend, there are many more people who have dyslexia or one of these forms of problem. We just do not know how many there may be, but I would not mind betting that if you asked everybody in this Room, there would be a lot of people who have relatives with addictions of one form or another, dyslexia, autism or whatever. I hope we can give enormous support to this. I see the noble Lord has more amendments later, and I think they need our support as well.
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Lord Northbourne (CB)
My Lords, I have not put my name to an amendment, and I shall speak only for a brief moment to make one point. I have been disappointed that no noble Lords have mentioned the other children in these schools, because the attitude of the other children is exceedingly important, both for the children who are suffering from disability and SEN and for those who are not. I remember having an all-party group in this Room, where a head teacher had brought four or five of her girls. It was a school for children with mobility problems. It became apparent as one listened to them that the whole school was committed to caring about these children, and this self-evidently makes a huge difference. Would the Minister consider putting something in his guidelines to address this problem?
Lord Ramsbotham (CB)
My Lords, I, too, have not tabled any particular amendment, but I was minded to contribute by the tone of the Minister’s Amendment 241A, and what has been said about that. I entirely endorse all the positive things that have been said about what is happening, and the remarks about the noble Lord, Lord Storey, and my noble friend Lord Northbourne. I want to concentrate on the other children, as well, because this is all concentrating on one very small part of the population of the school.
I refer the Committee to Clause 19, on which the initial contribution by my noble friend Lord Low was made. It is headed, “Local authority functions: general principles”, and the next line says, “Local authority functions: supporting and involving children and young people”. Paragraph (d) refers to,
“the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes”.
It does not differentiate between any of the children; we are talking about all our children.
When we are considering this Bill, special educational needs are mentioned—but if you look at the numbers with those needs, you can see that it comes to about 2.8% of our children. Another 16% are subject to school action and school action plus, which means that 81.2% of our population are not being considered by what we are doing. That worries me.
I declare two interests, one as chairman of the All-Party Parliamentary Group on Speech and Language Difficulties. We have just done a report on the link between social disadvantage and speech, language and communication needs. That follows work that I did as Chief Inspector of Prisons and, later, on the number of people in young offender institutions who were found to have speech, language and communication needs. Clause 19(d) seems to require a duty for every child to be prepared to be able to engage with education so that they can get their best possible educational and other outcomes. That of course includes all those who have problems in gaining that entry into education. It may be that there is a physical or a mental problem. Later, I want to introduce something that has come up in my second context, as chairman of the Criminal Justice and Acquired Brain Injury Group, which is doing a huge amount of work on neurodisability. That is different from learning disability, which tends to be associated with congenital conditions, whereas a neurodisability can result from all sorts of other things, including acquired brain injury and the neurodevelopment of a child.
I come to my second question for the Minister. Surely what we are talking about here comes under the overall umbrella of child development. We are talking about the problems of child development for a particular group at this moment, in this group of amendments. However, when I look at the overall conduct of child development, I am mightily confused about where the Government stand on this. Who is the Minister for Child Development? If you look at what comes later in the Bill, on the 0 to 25 pathways, you can see that only one organisation is responsible for someone from 0 to 25. That is a local health and well-being board, which has nothing to do with the Department for Education or the Department for Business, Innovation and Skills, or whatever it is called, and nothing to do with the Home Office, the Ministry of Justice or the Department for Communities and Local Government. It is a healthcare organisation.
If you look at the start of the journey for child development, the early years foundation stage, that, too, is the responsibility of the NHS, which is responsible for doing the assessment on which the judgment is made as to whether a child has a learning difficulty, a learning disability or whatever. I therefore endorse entirely what the noble Baroness, Lady Brinton, said about oversight and what my noble friend Lady Howarth said about the need to have the details here. We are talking about things that concern us greatly, not just today but for tomorrow.
We must be concerned about what the Government’s plan is for the oversight and the conduct of all these things that we are talking about. I do not know whether everyone has read in detail the code of practice that came out. It is full of sentences that start, “Local authorities must…”, but there is no indication of how that “must” is to be overseen, who is to do it, who is to fund it or what the “must” is—there are just lots of “musts”. My experience as a soldier is that unless someone is actually responsible and accountable for making things happen, nothing will happen.
Judging by the content of the amendments, we are going to hear masses of good sense and good advice, all based on experience, which will make our children better. What worries me is that all that will go nowhere unless the Government have an overall construct for the oversight and introduction of all the things that we are going to talk about. I would be very grateful to hear from the Minister exactly where the Government stand on delivering that.
Baroness Sharp of Guildford (LD)
My Lords, my name is attached to Amendment 87 along with that of the noble Lord, Lord Low. It relates to Clause 25, which is about the integration of local authority services with health services and care services. It comes back to the whole issue of disability as well as medical conditions and so forth. This was the subject of the noble Lord’s initial presentation on Amendment 65B, which led this whole group, and it is an important issue. The problem is that Clause 25 says firmly:
“A local authority in England must”—
just as the noble Lord, Lord Ramsbotham, was saying—
“exercise its functions under this Part with a view to ensuring the integration of special educational provision with health care provision and social care provision, where it thinks that this would … promote the well-being of children or young people in its area who have special educational needs”.
Again, disability is not mentioned there. I do not want us to lose, amid the other things, the need to cater for those with disabilities, as the noble Baroness, Lady Grey-Thompson, made clear. There are features here that are very important but are not covered. They are covered better in the code of practice but the Bill itself does not mention them, and it is very important that we do not forget them.
Baroness Brinton
My Lords, I declare an interest as a trustee of UNICEF. I, too, am delighted to be speaking in favour of Amendment 219, which can bring about the transformation of education—much of our emphasis today has been on education—and, importantly, health and social care services, which is needed to make them truly inclusive for families with disabled children.
I strongly believe that the starting point for looking at the reforms to SEN in this Bill should be that a disabled child has just as much right as every other child to be involved in their community, to be visible in their own community and to have the same opportunities as their non-disabled peers. Despite some very welcome reforms to support for disabled children and children with SEN in the Bill, I fear that the right of disabled children to participate in their community will not be sufficiently realised through the Bill. This concern is shared by UNICEF and the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, noted.
There is compelling evidence that families with disabled children currently encounter huge difficulties in accessing support in their community. Indeed, Scope’s recent Keep Us Close report found that a mere 14% of families with disabled children said they could get all the support they needed in their local community. Therefore families which already face immense challenges on a daily basis more often than not encounter a closed door when it comes to ensuring that their children enjoy the same opportunities as other children.
The Government previously stated in Committee on the Bill in the other place that there are already duties in place to ensure that appropriate provision is made for children and young people with special educational needs and disabled children and their families. However, such duties are clearly failing to achieve their intended purpose. Although the Equality Act 2010 requires organisations to be proactive and responsive in ensuring that the public services that they provide are inclusive and accessible, the reality is that services for disabled children are often developed, planned and commissioned separately from other community services, and consequently miss more strategic opportunities to create joined-up support and a more inclusive society. Parents are confronted with local activities and services that are inaccessible or a lack of support services to enable disabled children to join in with local activities such as youth groups or even simply playing in the park with their peers.
The Government need to set out a clear strategic direction and create a strong imperative for local authorities to focus on accessibility of local services, and that is exactly what the amendment would do. Although a number of local authorities undertake excellent work alongside families with disabled children to ensure that their needs are met by mainstream services—notably Suffolk, Leeds and Blackpool—not all local authorities are as progressive. Many local authorities and voluntary organisations want to provide more inclusive and accessible services, and the amendment would help to give them a chance to do that.
Such a duty on local authorities and NHS bodies would not have to be burdensome. Disabled children and those with SEN more often than not do not need hugely different or specialist services. With small changes to an existing service, we can make them accessible and inclusive for disabled children. It is not about providing more and separate services, but, rather, targeting current provision in the most effective way.
Indeed, making services accessible and inclusive for disabled children is just as much about changing attitudes as it is about making physical adjustments. It is about breaking down many of the fears and misconceptions about what inclusion means and ensuring that services see children simply as the individuals who they are—forcing services to think more creatively about how they can meet the needs of families with disabled children and allow the 1.7 million disabled children and children with SEN to reach their potential.
Lord Ramsbotham
Briefly, I support my noble friends Lady Howe and Lord Low on Amendment 219. I commend to the Minister, in forming the regulations, an enormous number of examples of good practice around the country which should be taken note of, as the noble Baroness, Lady Brinton, said. Some of them were drawn to attention in the report of my committee on the links between social disadvantage and speech, language and communication needs. We were fascinated that, for example, in Walsall, assessments were made of children in secondary schools. Nowhere else in the country could we find that being done in the same way. In Stoke, they were training lollipop men and dinner ladies to identify conditions in children which they might bring to the attention of the authorities so that they could be followed up, based on the fact that no longer is child development a requirement in teacher education, which I find an extraordinary state of affairs.
I speak here on behalf of a coalition called the Communication Trust, which would be more than happy to share all that it has learnt with the Minister and the officials responsible for drawing up the regulations to make certain that they incorporate as much as possible of what is already known.
Lord Nash
I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, for tabling their amendments on inclusive provision. I had the great pleasure of meeting the noble Lord, Lord Low, recently. I was grateful for his time and singularly impressed by his breadth of knowledge and wisdom in this area. As I said before, I am indebted to noble Lords for their help in developing my understanding.
Thankfully, we have come a long way since 1970, when some children were written off as uneducable. It was in the 1970s that the noble Baroness, Lady Warnock, and her committee of inquiry published their report. As I have already said, we owe a huge debt of gratitude to the noble Baroness and her committee, as their work led to the Education Act 1981 and the special educational needs framework, which did so much to improve the identification of and support for children and young people with SEN, particularly in the mainstream. Subsequent changes were made to that framework through the Special Education Needs and Disability Act 2001, which applied disability discrimination law to education and strengthened the right to a mainstream education where parents want it.
In 2012 this Government included the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty for schools under the Equality Act 2010. With the Bill, the Government are seeking to build on what has gone before and create a new framework to improve support for children and young people and increase choice for parents and young people. All the amendments in this group are concerned in some way with the principle of inclusion. The debate today has demonstrated that while we all share a common desire to improve provision for children and young people, we may differ on how that objective is best achieved. I hope that we can make much of our common ground and shared objectives as the Bill progresses.
I shall speak first to Amendment 65D, in the name of the noble Lord, Lord Low. I know that this is an area that was raised by the Joint Commission on Human Rights in its consideration of the Bill. This Government have taken action in a number of ways to support the objective sought by this amendment and to meet our obligations under the UN convention, which we take very seriously. I welcome the opportunity to set these out. In doing so, I hope to be able to persuade your Lordships of the case for giving effect to this principle in a range of ways other than by amending Clause 19. The Bill maintains the general principle of inclusion in a number of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need. It also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges, and seeks to improve the options available to them.
Beyond the Bill, as I have mentioned, 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. I want to make it clear that nothing in the Bill replaces or overrides those provisions. Indeed, we have drawn attention to those duties and set out examples of the reasonable steps schools and colleges can take to include children and young people in mainstream settings in Section 7(11) of the draft SEN code of practice. Chapter 6 of the draft code provides strong guidance to all mainstream early years settings, schools and colleges to ensure they have high expectations for all their pupils and students, provide high-quality teaching and have clear systems for identifying those who need additional support and providing that support as quickly as possible.
We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and recognise the key role played by the SENCO in this and other ways. A number of steps are being taken to support schools and colleges in developing their staff. The teaching schools programme is supporting the development of expertise in supporting children with SEN. We are also providing bursaries of up to £9,000 to high-quality graduates undertaking training programmes with a focus on teaching learners with SEN and £1 million in bursaries to support existing further education teachers in undertaking training to develop their specialist skills and knowledge to support those with SEN.
Following recommendations from the Rose review 3,200 teachers have obtained specialist qualifications in dyslexia and since 2009 10,000 new SENCOs have been funded through the master’s-level National Award for SEN Co-ordination with a further 800 places on this award in 2013-14. We worked with the Training and Development Agency—now the National College for Teaching and Learning—to develop specialist resources for initial teacher training and new advanced-level online modules on areas including dyslexia, autism and speech and language needs, to enhance teachers’ knowledge, understanding and skills. We have also funded the National Association for Special Educational Needs to deliver additional training in SEN for established SENCOs; this has now offered training to around 5,000 SENCOs.
We have also awarded contracts to a number of sector specialists including the Autism Trust, Communications Trust—to which the noble Lord, Lord Ramsbotham referred—Dyslexia-SpLD Trust and National Sensory Impairment Partnership to provide information and advice to schools and teachers. We have also provided resources in a number of other areas and I will be very happy to write to the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, with further details. Taken together, I believe these measures help mainstream schools to develop an effective approach to inclusion and help to equip teaching staff with the skills to support a broad range of pupils and students.
Lord Ramsbotham
“( ) A child of compulsory school age who is excluded for a fixed term from school on two occasions within a single school year shall receive an assessment to identify possible learning difficulties within one month of the second fixed-term exclusion.”
Lord Ramsbotham
My Lords, looking at the clock, I am a little alarmed. Will we rise at 7.45 pm or will we go on until this group is finished? I am already on borrowed time.
Baroness Northover
We plan to rise as close as we can to 7.45 pm, having completed the group. I trust that acts as a focus for what we may be able to cover. We have to bear in mind the various rules and Hansard.
Lord Ramsbotham
I am very grateful to the Minister, but I am extremely concerned about that because this group introduces very serious issues to do with speech, language and communication needs. I cannot promise to be short over this because there is a number of things to say, and I know that a number of noble Lords wish to speak. I am concerned that we should rise and continue when we resume because, as I say, I have serious timing problems.
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, it may help the Committee if I say that it is possible under certain circumstances to finish part way though a group and then resume on the next Committee day. I hope that will not happen, but should we get to 7.45 pm, that may assist.
Lord Ramsbotham
My Lords, slightly unusually, I shall speak to Amendments 76 and 78 before I speak to Amendment 70A, because Amendment 70A, as it were, is an issue connected with some of the things that I am going to say. I have already mentioned my concern that we are looking at all children and not just the 2.8% who have special educational needs. In saying that, though, I presume that the Government’s aim is to continue the Education Act 1996 and what was said in it. After all, that is where the statements stem from that are now being turned into EHC plans. The Education Act 1996 says:
“A child has ‘special educational needs’ for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him”.
In recent years, a number of us have set out to raise the profile of speech, language and communication needs as a 21st-century scourge. They have crept up on us increasingly because of the lifestyle that is lived in the 21st century—the electronic lifestyle, the parental neglect lifestyle, the lack of communication in families lifestyle, the lack of communication between people lifestyle—and the fact that there are simply appalling figures about people who are identified as having speech, language and communication needs when they start school. I found, for example, when going to do an experiment with speech and language therapists in two young offender institutions, funded by the Helen Hamlyn Trust, that 67% of the young offenders had some form of identifiable speech, language and communication need. They had reached the age of 15 before this was discovered, hence the fact that the conclusion from our studies was that if only that had been identified early, they might not have been in the young offender institution because they would have been able to complete their education. Think of the waste of the numbers who had been excluded or evicted, quite apart from those who had truanted, because of their inability to connect with the education system.
In recent years, we have learnt that successive Governments have made considerable movement on this. I am particularly glad about the early years foundation stage scheme, which has every child assessed at the age of two to see whether there are difficulties and disabilities. During the study that I have already mentioned to the Committee, we were very pleased to take evidence from Northern Ireland, where speech and language therapists are involved in the training of health visitors before they go to carry out that assessment to make certain that those particular needs are identified.
The purpose of Amendments 76 and 78 is to draw attention to the need for such early intervention. If the general intent that I mentioned earlier is what I saw behind Clause 19, particularly Clause 19(d)—namely, that every child should be enabled to be educated to the best of their ability—while early identification is the key to improving the educational outcomes for children and young people with speech, language and communication needs, some of whom will also have other needs, such as physical needs, I would have thought that the educational need to involve themselves in and engage with education should be at the heart of an education Bill, which is what this is.
The speech, language and communication needs can be easily missed or misinterpreted. In fact, it is said that almost 90% of the children who have them also have some degree of literacy difficulty; a high proportion of them end up being excluded. The trouble is that this has gone unidentified, very often for far too long. You even find people getting to secondary school who cannot communicate there, having failed to communicate during primary school. If we are talking about 0 to 25 pathways, we are presumably thinking about the transition from education into employment. I have been very interested to see the identification by employers and others of the problems of speech, language and communication needs with potential employees. So I am very keen to see that speech, language and communication needs are included in the Bill as special educational needs, because without the language and communication you will not have the education anyway.
On the subject of special educational needs, we have been talking a lot about disabilities and other things that impact on people’s educational abilities, but we are talking about education abilities. It was said in the other place that 33% of children arrive at school without the requisite communication and language skills to take part in education. That is a terrible figure, and I suspect that it could be an underestimate. There are factors such as learning delays, and so on, to be taken into account; 1 million, or 10% of all the children in the country, have identified speech, language and communication problems that are not caused by neglect, having English as an additional language or other external factors. In other words, it is an endemic problem. As I say, it is the scourge of the 21st century.
Amendments 76 and 78 would seek to strengthen the words in the legislation. I was horrified to hear my noble friend Lord Low question the term,
“to use its best endeavours to identify”,
which was given to me by the Communication Trust. I am more than happy, after we have had this discussion in Committee, to consider other words that might be more appropriate, but I do not think that it is good enough to have a Bill of this magnitude, and the opportunity that it presents to do something of real significance, and put at risk the opportunity to put speech, language and communication needs at the very heart of everything that is done with all our young people. That means spelling out in detail what local authorities’ responsibilities must be; it is not good enough to leave it with a phrase such as “with a view to”. I do not think that that is nearly strong enough.
That covers Amendments 76 and 78. I now come back to Amendment 70A, which refers to a very particular condition—attention deficit disorder. It is phrased as it is because, at present, ADHD is picked up only when a child has been excluded for the second time. People have quite rightly mentioned the marvellous report that my noble friend Lady Warnock produced all those years ago in which she listed some of the conditions that were to be examined. ADHD was not on the horizon at that time. I contend that a large number of conditions have developed since then which ought to be looked at and included. I mentioned earlier the definition of neurodisability. We talk about learning disability and learning difficulty, but let me describe what neurodisability means in childhood terms. Childhood neurodisability is,
“occasioned when there is a compromise of the central or peripheral nervous system due to genetic, pre-birth, birth trauma, and/or injury or illness in childhood. Such a disability may therefore affect the brain, spinal cord, cranial or peripheral nerves, or muscles, with common symptoms”,
including learning difficulties, specific learning difficulties, lack of inhibition regarding inappropriate behaviour, difficulties related to speech, language and auditory processing, and cognitive delays. It is said that they incorporate autistic spectrum disorders, acquired traumatic brain injuries, epilepsy, learning difficulties, specific learning difficulties, communication disorders and ADHD.
Lord Lucas
My Lords, may I ask the noble Lord, Lord Ramsbotham, whether he has addressed Amendment 76, or is it postponed to a later group?
Lord Lucas
Then I shall add them to what I am going to say. I very much support what the noble Lord says about Amendment 70A. It is very important to create a system for identification and picking up kids when you start to see symptoms that might be symptoms of a special need. A lot of the time, there is no sensible way in which a classroom teacher can tell; the difference between ADHD and bad behaviour is not obvious. The motivations behind that behaviour can come from all sorts of things. You need a specialist. You need someone to look, in a one-to-one situation where they are not trying to deal with 30 other children at the same time. You need a decent length of time just to concentrate, and to really know your stuff. It needs to be a proper process of finding out what the problem is.
I have happy memories of going into my child’s school in his second week, by which time he had been given 15 detentions, five of them for having too many detentions. That ought to be saying something to a school, but they need to have the resources available to pick up on what the problem is and settle down and identify it, rather than just having to react to the symptoms. Amendment 70A would put in a backstop—a long way back from where good practice should be, but at least it would be there. That second exclusion really should trigger a proper analysis of what the underlying cause is of the symptoms that the school and the child are suffering from.
I also very much support Amendment 80. There is a lot to be said for having a decent data set for what is going on, not least because it would enable us to spot patterns across the country of differences in diagnosis and in how children were being assessed and treated, which is very important with a process that is essentially local but conditions that are not. The conditions are national, and you want to know what is going on so that you can inquire whether a particular pattern is the result of good or bad practice and either deal with it or spread it, depending on what is right. The base for that has to be data, something at local authority level that can be quite detailed without giving away any personal information and can be a useful and comparable source of information. That should be one of the foundations of our policy.
However, I do not support Amendments 76 and 78. I do not like the idea of the local authority having to scour the country looking under every stone for people with special educational needs. That would be particularly objected to, quite rightly, by the home education community. A lot of those children have been brought out of education because of how badly their special needs have been dealt with by schools, and the last thing that they want is the local authority lording it over them and saying that it has to be in every three months diagnosing their child and telling them what to do. That relationship does not succeed in those cases.
We should not try to create something that intrusive by a local authority. Yes, as was said, the local authority should have its ears open, be a point of contact and have a duty to respond when someone thinks that their child has special needs and wants something done about it. Coupled with the other duties, I think that the Bill will achieve a responsive local authority—a body that will pick up on problems that come to its notice and which has to have its eyes open in ordinary ways, so that it knows what is going on in schools, but which does not have to scour the highways and byways for people with special educational needs. To my mind, that is the right balance.
Lord Ramsbotham
The noble Lord has completely misunderstood what I was saying about Amendments 76 and 78. I suggest that the best thing is probably for me to talk to him and explain what I was trying to say, because that was certainly not my intention at all; it could not be further from it.
Lord Nash
My Lords, Clause 22 extends the current requirement on local authorities to exercise their powers with a view to identifying special needs to all children and young people aged from nought to 25. I am grateful to my noble friend Lord Addington for his support for that. Amendments 76 and 78 from the noble Lord, Lord Ramsbotham, would strengthen the local authority duty to identify SEN. There are many ways in which a local authority will identify children and young people, and each authority will know the most effective way to do so. Paragraph 2.2 of the draft code of practice makes clear that local authorities must carry out all their functions with a view to identifying where children and young people aged nought to 25 have SEN. The duty applies to all of a local authority's functions, not just those under the Bill. Paragraph 5.2 of the code further sets out the requirements for the local offer. It must cover the arrangements for identifying the special educational needs of children and young people across all the providers covered by the offer. That will for the first time bring together information on how SEN is identified across the area and give families and young people a chance to comment on its effectiveness.
On the points raised by the noble Lord, Lord Ramsbotham, about speech, language and communication needs, they are included in the definition of SEN. The code of practice refers specifically to speech, language and communication needs as an SEN, and data are collected annually on that. We recognise that identification may not always be what it should, and our new guidance in chapter 6 of the code of practice gives much stronger guidance on that.
Amendment 70A, moved by the noble Lord, Lord Ramsbotham, would ensure that pupils who receive more than one fixed-term exclusion did not fall through the net. There are already extensive protections in that respect. As a result of his representations and those of other noble Lords during debates on the Education Act 2011, statutory guidance to schools on exclusion reinforces the point that early intervention for poor behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have. It also sets out that head teachers should consider the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour. Chapter 6 of the draft code reflects that approach in providing guidance on identifying different types of SEN. However, schools need the flexibility to identify the most appropriate trigger for such assessments.
While I support the principle underlying this amendment, the steps that we are taking through the Bill and the revised code of practice already reinforce the importance of early intervention. Introducing an automatic trigger for an assessment of pupils’ learning difficulties could have the unintended consequence of creating a box-ticking exercise or lead to schools that are not certain delaying assessments until a second exclusion has occurred.
Concerning the point made by the noble Lord, Lord Touhig, about unlawful exclusion, the department’s statutory exclusion guidance sets out the responsibilities of schools and states explicitly that excluding pupils simply because they have additional needs or sending pupils home to cool off is unlawful. Any evidence of unlawful exclusion is taken seriously by the department and Ofsted.
Amendment 77, tabled by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hughes, emphasises that the identification of SEN should happen as early as possible. Clause 24 reproduces an existing provision that is designed to ensure that action is taken as soon as special educational needs are identified, rather than waiting until the start of compulsory education. For children under school age, health services are often the main point of contact, so it is important that they take action where they identify an issue. The draft code of practice sets out a number of practical steps that will support early identification, including early health assessments such as the hearing screening test, the progress check at the age of two, and an assessment at the end of the early years foundation stage profile at the age of five.
In addition, provisions in this Bill mean that in future anyone will be able to bring a child or young person who they believe has or may have SEN to the attention of a local authority. That includes parents, relatives, professionals, social workers and health visitors. Young people also may refer themselves. That is a significant improvement to the existing position that will help to avoid delays in identifying children and young people with SEN.
Amendment 80, tabled by my noble friends Lady Brinton and Lady Walmsley, raises the important issue of publishing data. We agree that that is important. The department already publishes local authority level data each summer on the number of schoolchildren with SEN and the prevalence of different types of need. Those data are contained in a publication called Special Educational Needs in England. We will continue to publish those data. The department also collects data on children in the early years through the Early Years Census. For post-16, the Educational Funding Agency and the Skills Funding Agency, through the individualised learner record, also collect data on young people in the further education sector on a range of types of need.
Amendments 82 to 85 in the name of the noble Lord, Lord Touhig, together seek to ensure that health bodies take action and notify parents and local authorities where they believe that any child or young person has special educational needs. The Clause 24 duty that I have already mentioned does not extend to children of compulsory school age because they will be enrolled with an educational institution responsible for ensuring that their educational needs are being met. It ensures that health professionals tell the local authority of young children not yet in education who may have SEN. That helps in the planning of support for when they enter education.
The responsibilities of early education settings in schools and post-16 providers for identifying and meeting special educational needs are clearly set out in the draft code of practice. On the point made by the noble Lord, Lord Touhig, about the role of area SENCOs in earlier years, page 70 of the new code of practice states that local authorities,
“should ensure that there is sufficient expertise and experience amongst local early years providers to support children with SEN”.
He goes on to outline the role of area SENCOs in the early years. This is the first time that this role has been included in statutory guidance.
I have set out how the Bill and code of practice together make extensive provision to increase requirements that pupils with SEN are identified as early as possible by whatever services they come into contact with, and that data are published on those identified needs. I hope that noble Lords will therefore not press their amendments.
Lord Ramsbotham
I am very grateful to all those who have spoken, including the Minister for his summing up. When I was Chief Inspector of Prisons I used to report on what I found, sometimes finding that Ministers had been given what we used to call the virtual prison, which was a description by other people of what they thought the prison ought to be or what they felt it was, which was not in agreement with fact. I must say to the Minister that I heard what he said, but I do not think that it agrees with the briefing that we have been given by practitioners on the ground. We may want a lot of that to happen, but it is not actually happening now. Far from wanting to have a tick-box approach, I would like to make certain that practitioners come together with officials—because the Bill is far too important to be let to go by default—to make absolutely certain that the things that the Minister said are put to the people who are saying that that is not happening. Then we can work out what the actual position is. In that case, I am very willing to withdraw my amendment.
Children and Families Bill
Lord Ramsbotham Excerpts(11 years, 5 months ago)
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Lord Ramsbotham
My Lords, I welcome the Minister on his legislative debut, and say how much those of us who hope to make a contribution to this important Bill appreciate that, in line with his predecessor, the noble Lord, Lord Hill of Oareford, whose performance was so widely admired on all sides of the House, he has already made himself so readily available to us. I also say how much I admire the way that the Minister for Children and Families, Mr Edward Timpson, took the Bill through the other place, and appreciate that he also makes himself readily available. In supporting the general thrust of the Bill, I am glad that Part 3 in particular received such intense scrutiny in the other place.
I declare two interests and one advantage, plus my experience as Chief Inspector of Prisons. First, I chair the All-Party Parliamentary Group on Speech and Language Difficulties, which earlier this year published a report on the link between social disadvantage and speech, language and communication needs. Secondly, I chair the Criminal Justice and Acquired Brain Injury Interest Group, the founder of which, Professor Huw Williams of Exeter University, has published much valuable research on the number of sufferers who are in the hands of the criminal justice system. My advantage is that I have the pleasure and privilege of sharing an office with my noble friend Lord Rix, who fights so tenaciously for the best interests of those with learning disabilities. Exploiting his vast experience, we often discuss the absence of difference in the process of assessing and treating those with learning disabilities and difficulties. That leads me to the first of my three pleas to the Minister, namely that the birth-to- 25 pathways mentioned in the Bill should not be confined to those with SEN but should be developed as a universal tool to be used with and for every child in the country, to ensure that no possible impediment to learning is missed.
I say that because I believe very strongly that SEN is too narrow a qualification for the continuous programme of assessment and treatment that makes up both the Healthy Child programme, one part of which is speech and language, and the proposed pathways. There is growing evidence that language competence is critical scaffolding for a readiness to learn, and that well developed communication and word skills are fundamental to a good start in the early years at school. In researching for our report, we learnt of some excellent work being done now in different parts of the country to enable every child to engage with appropriate stages of education, an intention that appears to be clearly at the heart of Part 3. I therefore welcome the flexibility inherent in pathways that consist of assessment followed by local offers of individual education, health and care plans, because that is a framework that can accommodate those with speech, language and communication needs as well as SEN, should they be added, as I hope that they will, as a result of amendments to be tabled in Committee.
My second plea, included in our report, goes way beyond the Minister’s pay grade. How do the Government expect a junior Minister in the Department for Education, even one as able as Edward Timpson, to co-ordinate the essential contributions of the Department of Health, the Department for Business, Innovation and Skills, the Department for Work and Pensions, the Department for Communities and Local Government, the Ministry of Justice and of course the Treasury to his department’s Bill? Because the Bill affects every child in the country, I would have thought it sensible to consider co-ordination responsibility being held by a Cabinet Office Minister.
I turn to those who enter custody, either, as now, with unidentified special educational or special learning and communications needs or, in future, following assessment and with an existing education, health and care plan. During my inspections of young offender institutions, as the noble Lord, Lord Addington, said, I learnt that more than 60% of detained children and young people had what are described as neuro-disabilities in an excellent report just published by the Royal College of Paediatrics and Child Health and the Youth Justice Board, entitled Healthcare Standards for Children and Young People in Secure Settings. In other words, they have traumatic brain injury, special speech, language and communication needs, ADHD, learning disabilities and educational needs and the autistic spectrum disorder. Yet Clause 70 of the Bill is headed, quite starkly, “Part does not apply to detained children and young people”. It goes on to say:
“Nothing in or made under this Part applies to a child or young person who is detained in pursuance of … an order made by a court, or … an order of recall made by the Secretary of State”.
I am sure that noble Lords will agree that this means that Part 3 of the Bill does not apply to young people in custody. Unable to believe that the Department for Education could knowingly publish legislation that ran counter to the recently announced intent of the Ministry of Justice to put education at the heart of custodial provision, I immediately wrote to the Minister for Prisons, presuming that he would be seeking to have the clause removed from the Bill. I received a courteous but thoroughly unconvincing explanation from the Minister for Children, saying that the clause is intended to prevent conflict with Sections 18 and 562 of the Education Act 1996, which put the duty to deliver education and support in custody on to local authorities, inserted by the Apprenticeships, Skills, Children and Learning Act 2009, by ensuring that local authorities are not put in the impossible position of having to implement rights and protections for those in custody that may not be appropriate to their circumstances. I would have thought that the issue was far better covered by Clause 25(1)(b)(i) and (ii) of the Bill, which says:
“A local authority in England must exercise its functions under this Part … where it thinks that this would … improve the quality of special educational provision … made in its area for children or young people who have special educational needs, or … made outside its area for children or young people for whom it is responsible who have special educational needs”.
Bearing in mind that the Ministry of Justice consultation was set in train because local authority provision was not working, I hope that the Minister will withdraw the clause before Committee, otherwise I give notice that I shall table an amendment that it does not stand part of the Bill.
Those are my three pleas, and I look forward to pursuing them in Committee. I am of course interested in Part 5 and the role of the Children’s Commissioner but, because it affects every child and therefore the future of our great country, I hope to contribute particularly to Part 3.