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

Lord Rix Excerpts

Monday 16th January 2012 Grand Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, when we discussed the general principle of testing the use of direct payments for special educational provision on Report on the Education Bill back in November, I am glad to say that there was a broad welcome for the measure from all sides of the House. However, there was a suggestion from the noble Lord, Lord Touhig, that the detail would merit further scrutiny and that the affirmative resolution procedure would be the right way forward. That was a suggestion that I was happy to adopt, and I am glad that we have an early opportunity to discuss this important order today.

I also put on record my thanks to the noble Lord, Lord Rix, for the attention that he has personally paid to this issue since November and for the helpful exchanges that he has had with my honourable friend Sarah Teather. I also thank the Special Educational Consortium for the way in which it has worked very constructively with officials to look at some of the detail. We have benefited from its advice as well.

As noble Lords know, we said in the Green Paper, Support and Aspiration, that we want to give every child with a statement of SEN or in a new single education, health and care plan, and their family, the option of a personal budget by 2014. That will help give families more of a say in decisions about the support services they use. We have already set up 20 pathfinders to look at improving assessment processes and developing personal budgets for parents. What we are not currently able to do is test the contribution that direct payments for special educational services could play in empowering families. We can do that for health and social services, but not for education. By passing this order, we will also be able to trial direct payments for educational services as part of testing personal budgets across health, social care and education which, if we want to bring all the services together in a more integrated way, seems to be the logical next step. We propose that the pilot should initially run for 14 months until March 2013, with the option to extend for a further two years after that point, if necessary. This is in line with the Green Paper pathfinder testing period.

During our debate in November, noble Lords sought reassurance on a number of points. Let me try to deal with each of them. The noble Lord, Lord Touhig, sought reassurance on the potential impact of direct payments on services to other children and young people with disabilities and SEN. The issue was also raised by the Special Educational Consortium during its discussions with officials from the department. We recognise the importance of this issue not just in terms of the viability of services, but also as an equalities issue. So we are clear that the benefits that direct payments may deliver to those who choose to receive them must not be achieved at the expense of other service users.

That is why we have included the requirements set out in paragraphs 11(c) and 17(f) of the order, which require the local authority to consider the potential for any adverse impact on other service users before entering into any individual agreement on a direct payment and to stop making direct payments should that become apparent at a later date. We recognise that there needs to be a careful balance struck between achieving our aim to give families greater choice and control and protecting existing services. We will need to work through this issue, as and when it arises, with the authorities taking part in this pilot.

In response to questions raised about securing a direct payment, we have sought to give greater clarity to the process for agreeing a direct payment and the provision that it can be used to purchase. We have linked the offer of direct payments to the making of a new or amended statement or the carrying out of a learning difficulties assessment to ensure that the question of whether direct payments will be made does not affect the existing statement and assessment process.

In addition, we have included a requirement to reach agreement about the goods and services which are to be secured by means of the direct payments and a requirement to obtain the written consent of the proposed recipient and, if different, the parent or beneficiary. The written consent must specify the agreed provision and the amount of the direct payments, including whether they are to be paid in a lump sum or in instalments.

Following questions from the noble Baroness, Lady Jones of Whitchurch, about support to families, we have included requirements in paragraph 19 of the order for authorities to make arrangements for a person receiving direct payments to obtain information, advice and support and provide them with written information about organisations that may be able to offer advice and assistance in connection with direct payments. This is an important point, and I am grateful to the noble Baroness, Lady Jones of Whitchurch, for raising it.

Pathfinder authorities will need to work with independent organisations to test how this advice and guidance can be delivered most effectively. A key objective of our Green Paper pathfinders overall is to explore how the voluntary and community sector can be used to improve access to specialist expertise and to introduce more independence to the system.

We have learnt from the individual budgets for disabled children pilot, which began under the previous Government, that, with effective support, advice and information, personal budgets can be accessible to families of all backgrounds. We will work with the authorities taking part in this pilot to ensure that they benefit from the experience of those individual budget pilots. To this end, we have included the individual budget pilot authorities in this pilot scheme alongside those taking part in the Green Paper pathfinder programme.

Overall, we are clear that there is much to learn and work through in the implementation of direct payments for special educational provision. This pilot scheme will allow us to do this as a coherent part of the testing of the reforms being undertaken by our Green Paper pathfinders. This includes the work that they will be doing on personal budgets, of which direct payments are just one method of delivery, and their wider work on the new single assessment process and education, health and care plan. We have made available to both Houses a section of the Green Paper consultation response relevant to personal funding and direct payments.

Finally, I would like to repeat the reassurance I gave during our debate on the primary legislation. The pilot scheme will need to be subjected to proper evaluation if we are to learn from it. We are working on the detail of that evaluation at present, but I can confirm that we intend it to be undertaken by an independent research company and to form a distinct but coherent element of the wider evaluation of the Green Paper pathfinder programme. I am happy to repeat my commitment to sharing those findings as we go along.

To sum up, I think that the previous time we debated this we all agreed on the direction in which we are keen to travel, but we certainly recognise that a number of difficult questions and issues are still likely to arise as we go along that way. I believe that this order provides a framework within which we can explore and, I hope, find ways to address those questions while ensuring that appropriate safeguards for families and the public purse are maintained. I beg to move.

[Lord Rix]

My Lords, I thank the noble Lord, Lord Hill, and his ministerial colleague Sarah Teather, the Children's Minister, who I previously met last autumn along with a delegation from the Special Educational Consortium to discuss in more detail the statutory instruments in relation to direct payments for special educational needs in the various pilot areas. I welcome the constructive and positive dialogue and correspondence with the noble Lord, his ministerial colleagues and various officials in his department. I believe that the statutory instrument, as laid, is much improved as a consequence of that process.

However, there remain a number of points on which I continue to seek clarity. For example, I seek assurances that if people with a learning disability are the recipients of direct payments, it will not lead to a reduction in the level of resources available for the provision of their education. I believe there is a genuine risk of this. In the field of social care, I am aware that personal budgets have sometimes been used by local authorities as an opportunity to try to reduce their costs. We must not allow this to happen with direct payments for SEN, which is why it is so important to get the statementing process right.

I also welcome the Government’s inclusion of paragraph (10) in Schedule 1 to the order, which requires local authorities to agree the amount of direct payment with the recipient in advance and to obtain their consent in writing. However, it is important to bear in mind that many statements of SEN and learning difficulty assessments are not sufficiently well written to allow proper calculation of the cost of the services they describe. For example, a statement may say, “Regular input from a speech and language therapist”, when it should say, “Three hours input from a speech and language therapist per week”. It would be impossible to calculate an amount that correlates to regular input, and in practice this would be down to negotiation between recipients and the local authority. In these cases, parents or young people might agree to accept a direct payment that is not sufficient to purchase the support which is actually needed. Therefore, I would like the Government to consider how they could ensure that the provisions set out in a statement of SEN are properly quantified and specified before a direct payment for that statement is agreed upon.

The Minister will also be aware that concerns were previously raised, as he remarked, about the impact of direct payments on the SEN services provided by local authorities for other children and young people in their area. I am uneasy with the requirement in paragraph 17 of Schedule 1 that if an “adverse impact” is made on these services, the local authority would stop making the direct payments. This could potentially lead to unintended consequences. For example, what steps will be put in place to safeguard the interests of the children concerned if a direct payment is suddenly ceased? What guarantees are there to ensure that the resources allocated for the provision of SEN are not misdirected elsewhere? What steps will be taken to ensure that local authorities do not deliberately underfund direct payments so that the payments can be withdrawn soon after? I also seek assurances that the evaluation of the pilots will fully consider these issues.

I look forward to the Minister’s response to the various concerns raised about this order during today’s debate, and I hope that officials in his department will be prepared to continue working with representatives from the Special Educational Consortium as we move forward on this matter.