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

Debate between Lord Storey and Baroness Hollins

Monday 28th July 2014 Grand Committee

[Lord Storey (LD)]

My Lords, I want to be very positive about this code of practice because I think that this is an historic moment for special educational needs and disability. I start by paying tribute to everyone involved because we are light years away from where we were before. Two years ago I was a teacher who had to look at colleagues who were not prepared to offer a duty of care to children with medical conditions. Now that will change, and it is to do so straightaway. Two years ago, schools did not have to have a qualified teacher as a SENCO, but now they do. I would reflect on the fact that after three years in post, those SENCOs must have the national qualification. To my mind, in terms of mainstream schools, we are light years away from where we were before. As I say, I pay tribute to all those who have been involved in putting together this code of practice. The 270-odd pages that make up the code are actually very clear and readable. I would guess that if this document was handed over to the plain English society, it would probably get a high score. Ministers, the Government and all those involved have listened and consulted, which means that changes have been made.

I have a number of particular questions, some of which have been raised already. Perhaps I may go over them. I should like to know what the process will be when changes occur. What is the procedure for adding something to this document? I have already mentioned to my noble friend the Minister that I am particularly concerned about the issue of young people sustaining concussion as a medical condition in school. At some stage we will need clear guidance on that. However, it is only one of a number of things. How, in the months and years to come, do we go about looking at those areas where we have real concerns?

I should have thought that 12 months was too short a period for a review, but an appraisal needs to be made at some stage of how this document is actually working in practice in schools. I would also be interested to know, perhaps through Ofsted visits and through general feedback, how the clear responsibilities for SENCOs in schools work in practice. A noble Lord asked who the responsible people are to be. For the first time, for mainstream schools, what SENCOs have to do and are responsible for doing is clearly set out and there is no hiding from that. They are responsible to the head teacher and the head teacher is responsible to the governing body of the school.

Mention has been made of local authorities. Again, we know that practices vary widely across different parts of the country. This code of practice means that local authorities will have much greater clarity about what they are responsible for and what they should do. Again, that is light years away from where we are.

A hugely important issue is that of continuing professional development. The schools have now broken up and this document will land on desks in September—it will be a soft landing, I hope—but we need to make sure that over the coming terms, all staff in schools have access to professional development so as to be able to understand their responsibilities, the importance of the code, and what should now happen.

Again, issue has been made about those young people who are not on an education, health and care plan. I am used to a system of school action and school action plus which is replaced by a graduated approach. As the debate has taken place, I have had reservations about the graduated approach because it is not absolutely clear how children will progress. I do not expect the Minister to answer—we have had that debate before—but at some stage we need to come back to that issue and be satisfied that that graduated approach is working.

I am going to end as I started by congratulating everyone involved. I am sure that in years to come this time will be regarded as, if you like, not the end of the matter—of course that will not be the case because the points made by the noble Lord, Lord Low, will happen, but over time—but as the starting point to allow those changes to take place.

[Baroness Hollins (CB)]

My Lords, I echo what other Peers have said about the welcome strengthening of the code, if not its length. I know many in the sector are appreciative of the changes. Having been a member of the recent post-legislative scrutiny committee on the Mental Capacity Act, I would like to comment on the sections of the code that interpret how the law will apply to young people who may lack capacity.

The Bill, quite rightly, gives new rights to young people over the age of 16 to make decisions about their support, subject to their capacity to do so. However, it is unclear in the code who decides whether a young person lacks mental capacity. Is it the young person, their parents, the school or the local authority? The voices of the young person and the parents should, of course, be heard throughout this and I would welcome clarification from the Minister on this point.

Building on this, it is critical to ensure that decisions that young people make are not overly shaped by the desires and agendas of others, including local authorities and other professionals. Mencap has discussed its point of view with me. It would like to see emphasis placed on ensuring that young people get the support they need to understand properly the decisions they are making and to be helped to make an informed choice, both about their support and what they might wish to do after school.

I refer to Annex 1, which sets out the five key principles in decision-making when someone may lack capacity, but clarification is needed about the process to follow regarding a young person who is judged to lack capacity. The code states that in such a situation decisions will be made by a representative who is,

“a deputy appointed by the Court of Protection”.

Currently, under the Mental Capacity Act, a formal process is not always needed and a formal deputy does not always need to be appointed. Can the Minister clarify this and say whether the code is implying that a new type of education deputy will be introduced rather than following the best-interests process currently used for adults? It is not clear from the code how a decision on whether a young person has capacity can be challenged and I would welcome the Minister’s response.

We must remember that the Children and Families Act 2014 brings in new decision-making rights for young people aged 16 to 18 in terms of education. This is a very new area for the Mental Capacity Act to be applied in. I agree with my noble friends that it would be sensible to review how the code is working at an appropriate point and to focus specifically on this area of implementation of decision-making capacity judgments within such a review.

Children and Families Bill

Debate between Lord Storey and Baroness Hollins

Tuesday 7th January 2014 Lords Chamber

[Baroness Hollins]

My Lords, I, too, added my name to this amendment. My noble friends Lord Rix and Lord Low have eloquently set out the logical intention behind the request to create a single point of appeal across education, health and care. If we are to create a truly joined-up system that really works for children, young people and their parents, this seems to be an absolute necessity. I speak as a parent who has worked hard to get the right support across all three systems and cultures for my son. The Government propose a single point of assessment, but the same old separate routes for redress and complaint, which will continue to bewilder and confront parents. We should aspire to more.

To focus on health needs for a moment, there are significant concerns among those in the sector that the health service is far from prepared to deal with appeals for the new plans when they are introduced from September this year. We should be mindful of the culture in which complaints and appeals happen in the NHS, and it is not quite clear where parents who are concerned about the health component of the plan would start. Ann Clwyd’s excellent recent report concluded that the NHS complaints system was confusing, lacked accountability and was subject to often long and frustrating delays. The system has been particularly unsatisfactory in the face of complaints from families of people with a learning disability.

Prior to a debate that I secured last year on the premature deaths of people with a learning disability, I met with a number of families who had lost loved ones to neglect and discrimination within the health service. Their experience of going through the NHS complaints process was that, in addition to being overbureaucratic and time-consuming, it was very defensive. They explained that it took years in many very serious cases to receive any sort of answer. A single appeal process for a single education, health and care plan might help us move closer to the joined-up system we are looking for, and ultimately help parents get what is needed for their sons and daughters.

[Lord Storey]

My Lords, I, too, moved an amendment in Committee on a single point of appeal. It beggars belief that you would have progressive legislation that creates for the first time a joined-up approach to education, health and social care but not a joined-up approach to an appeals mechanism. Everybody I have spoken to agrees with that.

Of course, the problem is the current systems that we have, so the notion is that we establish a Bill that creates single education, health and social care plans but then the appeals mechanism is threefold. We expect in this child and family-friendly approach for parents then to navigate their way through these different systems. Currently, the health appeals mechanism is not very transparent and on patient or family satisfaction ratings is very low indeed. Local authorities, as we know, vary.

What do we need to do? First, the code of conduct very much highlights the need for mediation—but it talks about mediation in terms only of education, not on the health and social care side. I hope the Minister might respond by telling us how we bring the mediation together for all three strands of the plan. In my view, mediation could considerably reduce the number of people wishing to appeal.

Then you come to the appeals mechanism itself. Whatever happens here today, I am utterly convinced that, in the years that follow, there will be one tribunal for these plans. The difficulty is the bureaucratic systems, as eloquently extolled by the noble Lord, Lord Low. Currently, the bureaucracy is not fit for purpose. My great fear is that we push the bureaucracies to agree one tribunal, they go kicking and screaming, and the whole thing does not work. We have to negotiate and make sure that everybody is on board to make this happen. Having talked to Ministers in health and education—though having been slightly disillusioned by officials—I am sure that we can achieve that eventually. We need to give my noble friend Lord Nash more time to continue those negotiations. Again, as has been said, I am sure that on the education side we all agree.