Children and Families Bill
Lord Touhig Excerpts(10 years, 6 months ago)
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Lord Touhig)
Lord Touhig (Lab)
My Lords, Amendment 137 is tabled in my name and those of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch, and the noble Lord, Lord Low of Dalston. I shall speak also to Amendments 145, 165, 173 and 175 in this group. Amendments 137, 145, 165 and 173 seek to amend various clauses, including Clause 36, “Assessment of education, health and care needs”; Clause 37, “Education, health and care plans”; Clause 44, “Reviews and Re-assessments”; and Clause 45, “Ceasing to maintain an EHC plan”. All these clauses refer to a local authority “having regard” to a young person’s age when making a determination. Examples include the review of a plan or the decision to cease to support a plan. Similar amendments to these were tabled in the other place seeking to replace the reference to age with a reference to having regard to “educational outcomes”, but these amendments go further and would simply remove the references to age altogether. This is something that I am sure colleagues in the Committee know that the sector is much exercised about. These amendments seek to ensure that children or young people with education, health and care plans are supported to achieve qualifications similar to other children and young people regardless of their age, so long as they are under 25.
The provisions as currently outlined are restrictive and there is a lot more that should be taken into account by local authorities when deciding whether a young person needs a plan or remains in need of one. Many young people have specific circumstances such as spending periods of time not in education or training, the reasons already discussed in relation to previous amendments, or they may lag behind because of their specific learning difficulties. It is therefore essential that decisions should be based primarily on educational outcomes rather than a young person’s age.
These are probing amendments, and removing the reference to age is not an argument for support to go on indefinitely. Indeed, I think that the age of 25 is a sensible and proper target, but it is also wrong that age should be the overriding factor that is considered by local authorities, as the clauses currently suggest. The Minister in the other place agreed that age should not be the only factor considered when determinations are made, but he did say that the Government,
“want the clause to prompt local authorities, once a young person is aged over 18 … to take a thorough look at whether outcomes have been achieved and the young person has made a successful transition to adulthood”,
and went on to say that:
“The relevant regulation in the draft plan assessment regulations sets out that, when undertaking reviews, local authorities must consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan”.—[Official Report, Commons, Children and Families Public Bill Committee, 16/4/13; col. 562.]
However, Clause 45(3) already requires a local authority,
“to have regard to whether the educational outcomes specified in the plan have been achieved”,
when it is considering whether to cease maintaining a plan. I therefore argue that the emphasis currently placed on age in the legislation is a complicating factor, causing entirely unnecessary ambiguity and potentially undermining the attainment of young people.
For 20 years I served as a councillor in a local authority and I know that colleagues on all sides of the Committee have also served at different times. I can tell the Minister that, from that experience and knowledge, the legislation as drafted will allow cash-strapped councils to drive a coach and horses through it—and they will certainly do so. It is a local council’s great escape and this will rival the film “The Great Escape” if we are not careful. Surely we do not want that to happen. I fear that the emphasis on age will work against what we are seeking to do in the Bill as a whole.
I turn to Amendment 175 tabled in the name of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch. Clause 46 states that:
“A local authority may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person attains the age of 25”.
As with previous clauses and amendments that we have already discussed, there is a concern that too much emphasis is again being placed on age as opposed to the educational outcomes of a young person. There is serious concern that such references to age could lead to local authorities cutting support part way through apprenticeships or other training courses. As I have stated previously, while support cannot continue indefinitely and 25 is a good cut-off point, we have to be careful about using age as a determining factor.
I welcome the fact that apprenticeships are now included in the Bill, and we are all grateful to the Government for listening to the representations made by noble Lords on all sides. However, age or the academic year should not be the only factor. The overwhelming factor should be the educational outcome for the young person. I am pleased that the Government, following an undertaking given by the Minister in the other place, have looked at this and have included the objectives of this amendment in the regulations. I thank the Government for listening because it leads to good and sensible dialogue and we then make better law than would otherwise be the case. In those circumstances, I beg to move.
Lord Touhig
My Lords, the Secretary of State, Mr Gove, said in a speech at what may have been his party conference:
“I’m really lucky to have as the Minister for Children and Families Edward Timpson. In the last year, Edward has transformed the education of children with special needs in order to ensure that all young children living with a disability at last have the support they need all the way up to the age of 25”.
I repeat: all the way up to the age of 25. In the debate in the other place the Minister said, as I said in my opening remarks, that age should not be the only factor considered when determinations are made. In response to this debate the Minister has said that our concerns on the age question are unfounded. If he can assuage our concerns and take out the reference to age altogether, we will all be happy bunnies. It is as simple as that.
The noble Baroness, Lady Sharp, said rightly that age was an artificial link. So far as my Amendments 137, 145, 165 and 173, as well as colleagues’ amendments are concerned, it is important to bear in mind that the Bill says that local authorities should “have regard to” a young person’s age when making a determination, for example, to review or cease a plan. I do not know how this is going to turn out, but we may well come back to it. Recently I spoke to someone I have known for years. He worked with me when I was a councillor and he was a local government official. We discussed this and he said, “Give me half an hour and I will give you three papers in which you as a councillor will be able to say, ‘We do not have to continue this support because of the age question’”. The noble Baroness, Lady Howarth of Breckland, made the important point that councils do not want to do anything bad or wrong in terms of this Bill or what they want for young children with disabilities or learning difficulties, but because of financial difficulties and other reasons they will look at the legislation to see if there is a way to avoid doing a particular thing.
I think we share an ambition to try to resolve this. The Minister cannot fail to have been impressed by the quality of the comments and the expertise of this Committee, and I am sure that every Member will happily volunteer to join his Bill team. We will find the time in our busy lives to help him redraft some of these amendments so that he will not have this problem. I do not think that it is going to go away. We will come back to it on Report. In the mean time, I beg to leave to withdraw the amendment.
Lord Touhig
“( ) any provision deemed necessary to be made available to the family of the child or young person which may assist in the promotion of the wellbeing of the child or young person concerned.”
Lord Touhig
My Lords, Amendments 144 and 146 are tabled in my name and that of my noble friends Lady Hughes and Lady Jones and Amendment 175A in my name only.
Clause 37 deals with EHC plans and subsection (2) specifies what should be in the plan. Amendment 144 states that the plan should specify any provision necessary to the family of the child or young person. As with a number of other amendments, it seeks to place the capabilities of the child or young person’s family at the heart of any assessment process, which is important in properly informing the provision that they may need to have specified in an EHC plan.
It is prudent that family life and home life are considered when the provision is made. Families are key to the well-being of children and young people with special educational needs and disabilities and to ensuring that they reach their full potential. They are a crucial resource in improving the outcomes of those children and young people and we should not overlook them. In the other place, the Minister said that EHC plans should describe the range of services that are needed to meet the needs of a child or young person and that the focus of plans must be the child or young person. He cited other things that would benefit parents and families, such as short breaks or the provision of transport. He said that the Government did not think it necessary to add anything specific to the legislation but would continue to develop the code of practice. I am not sure that he is right in that respect, but I am encouraged that the Minister said that he will look again and reflect on Amendment 131, tabled and spoken to by my noble friend Lady Jones. As that is very similar to Amendment 144, he might care to reflect on Amendment 144 at the same time and give us some good news afterwards.
Amendment 169 is tabled in response to the report of the Delegated Powers and Regulatory Reform Committee on this Bill. The Government have not tabled any amendments in response to the report, so I hope that the Minister will take this opportunity to explain how the powers will be used.
I turn to Amendment 175A. All too often, we hear of the adversarial struggle that parents face to obtain the right support for their children. If anybody has any doubt about that, I suggest a five-minute conversation with the noble Baroness, Lady Browning, who will enlighten them about the way parents often have to struggle on behalf of their children. The stated intention of the Bill is that it will make it easier for families to get the support they need. That is a noble intention.
However, an oversight in the Bill about what happens when a family moves is causing great uncertainty and anxiety to a great number of families and support organisations. We all know the terrible struggle that families with children and young people with special educational needs and disability too often have to go through to access vital services. Seven out of 10 parents of children with autism, for example, say that it has not been easy to get the educational support that their child needs.
Without Amendment 175A, such families will continue to have to struggle to access the services that they desperately require. The Bill currently perpetuates the status quo, whereby when families move from one local authority area to another, they do so without any clear idea as to what support their child might receive. They can also face the prospect of costly legal battles, with the appalling result that children and young people end up missing out on education while such battles are fought.
In many cases, parents feel trapped. A parent told the National Autistic Society—here I declare an interest as a vice-president of the National Autistic Society—that they feared moving because,
“we would have to start the assessment process from scratch, even though Mohammed has very complex needs. The stress of doing that all over again, along with the risk that we might lose his place at his current school is terrifying for us”.
It cannot be right that, should the family move, they might have to restart the assessment process, potentially disrupting the education and healthcare of children and young people.
The amendment is intended to echo existing clauses in the draft Care and Support Bill, which set out a local authority’s responsibility both when someone moves into the area and when someone moves out. It is impracticable to expect local authorities to replicate exactly the provision agreed by a different authority. However, it should be expected that provision is based on the previous assessment and agreed outcomes rather than starting from scratch. The positives of such streamlining are manifest: withdrawing the shadow of fear for families that they may have to undergo complex assessments for a second time; and ensuring crucial continuity of provision of services for children and young people.
Regulation 3, paragraph 15, entitled “Transfer of EHC plans”, sets out in detail what should happen when a child or young person with an EHC plan moves to another local authority area. Unfortunately, it makes no mention of continuity provision. I wonder whether the Minister will be prepared to review that. Alternatively, will he commit to, at a minimum, strengthening the regulations that will dictate the portability of education, health and care plans to ensure that there is clear guidance for local authorities and coherence between this Bill and the Care Bill?
As a brief aside, when I served as a Defence Minister, I constantly found that servicemen were reluctant to move, sometimes even when it involved a promotion, if they had children with special educational needs and their children were statemented, because they had to go through the whole process again. We were working on a plan for a statement passport. Unfortunately, I had a phone call from No. 10 and Mr Blair awarded me the DCM—don’t come Monday—so I was no longer a Minister and was unable to take that forward. However, there is merit in having such a passport. By ensuring that education, health and care plans are portable across local authorities, we will ensure continuity of service. I think that we all want that, and, therefore, I beg to move.
Baroness Howe of Idlicote
My Lords, I have tabled two amendments in this group. Before I speak to them, I want to say how impressed I was by what the noble Lord, Lord Touhig, had to say about his amendment, which I certainly fully support. It is important that movements by families of this kind should be facilitated and that they receive the same care as they would have, had they stayed where they were.
Amendment 147 would insert a new subsection after Clause 37(4) stating that:
“In making a decision for the purposes of this section in relation to a young person aged over 18, a local authority must seek psychological advice from an educational psychologist”.
I have tabled the amendment to explore two specific concerns about this clause. The first is about the support available to young people with special educational needs aged between 19 and 25. Although educational psychologists principally work with children and young people aged from nought to 19, the profession is increasingly supporting young people over the age of 19 in a number of settings, including the further education sector. Currently, educational psychologists across the country are playing an important role in supporting these young people. However, under the provisions of this clause, it is not clear what role educational psychologists will continue to play in post-19 settings, and how this will be promoted. The proposed age extension to 25 years has been welcomed for the assessment process, but that will need careful workforce development planning to ensure that young people aged 19 to 25 years are well supported by a sufficient number of educational psychologists in future.
It would certainly be helpful if the Minister, when he replies, could set out clearly how he envisages the new proposals helping educational psychologists to contribute to supporting young people. It would also be useful if he could explain the impact of the changes on future workforce development. The Government clearly need to ensure that enough educational psychologists are being trained to meet future demand. I would also like some clarification on the role of educational psychologists in the assessment of children and young people who come in from outside the system; that is, if they have moved to the UK from abroad. Under the current proposals, it is unclear how these children and young people will be supported. I hope that the Minister will be able to provide us with adequate reassurance on this important issue.
I turn now to my second amendment, Amendment 168, which would amend Clause 44, headed “Reviews and re-assessments” by inserting a new subsection:
“Following a review of re-assessment, a local authority has to seek psychological advice from an educational psychologist”.
One of the reasons that this whole area is coming to the forefront of our discussion is the increasing emphasis being placed on mental health problems. I hope that this issue is being taken more seriously than perhaps it was in the past.
I am encouraged that the Bill will retain the existing protections for parents, including an explicit right for them and for the school to request education, health and care plans. I know that during scrutiny of these clauses in the other place, the Minister for Children confirmed that under the proposals, there will be access for all children and families to specialist services such as educational psychology on an equitable basis. Currently, under statute, a reassessment of SEN follows essentially the same process as the initial assessment. If a child or young person’s needs change, a further assessment can be requested and, if carried out, the local authority must comply with all the statutory requirements, including meeting time limits and consulting with professionals as specified in the regulations; that is, educational professionals, educational psychologists, social services and health services.
However, under the Bill, a new concept of reassessment is now being introduced which allows a local authority to determine the format of the reassessment. Local authorities will no longer have the same duty to consult and obtain evidence from designated professionals and can choose to review only a specified aspect of the EHC plan. Although the code of practice states that reassessment must follow the same process as an initial assessment, I know that there are concerns that under the Bill, there is no guarantee that EPs will be consulted when a reassessment takes place. The fact that children and young people undergo a reassessment because there is a significant change in their needs makes it more important that educational psychologists are involved, to ensure that the child’s voice is considered. Educational psychologists will also work with parents and schools to ensure that the right support is found for the child.
Lord Touhig
My Lords, we have had quite a wide-ranging debate and the Minister has had to cover a huge number of issues in his response. I am sure that all noble Lords will want to read Hansard and reflect on his comments to decide whether there is any purpose in taking these matters further. As regards the amendments to which I directly spoke, the Minister’s answer on Amendment 144 was not quite what I had expected, but I will look carefully at what he said in Hansard. On Amendment 169, the Delegated Powers and Regulatory Reform Committee report on the Bill said:
“We invite the House to ask the Minister better to justify the scope of the powers conferred by clause 44(7)(b) which to us, in the absence of an explanation, appears to be inappropriately wide”.
Again, I am sure that I will not be alone in studying the Minister’s reply to see if he has satisfied any concerns. Amendment 175A seeks to ensure portability. I was encouraged because the Minister was nodding vigorously while I was speaking, so I had much hope that we would be going in the direction that I want. Again, I will look carefully at his remarks in Hansard to see whether there is any need to pursue this matter further on Report. I am grateful to all noble Lords who have taken part. We have had a very good debate and I beg leave to withdraw the amendment.
Lord Touhig
My Lords, I will speak to Amendment 158 in my name and in the names of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch, and to Amendment 161 in my name.
Clause 39 deals with requests for particular schools or institutions in EHC plans. As drafted, the clause sets out that if the school requested is unsuitable for the child, or incompatible with either the provision of efficient education for others or the efficient use of resources, the local authority will ensure that the plan names a school or specifies the type of institution which could be appropriate. This amendment would ensure that parents agreed with the school chosen by the local authority when their first choice did not work out, before the local authority is able to name the second choice school in the EHC plan. This issue has already been discussed in relation to a previous clause.
It is, shamefully, already the case that some schools unfairly reject children with special educational needs; the Bill would continue to allow them to do so. I have been taking part in the Lord Speaker’s outreach programme and not so long ago I visited a school. I looked through the school’s prospectus, which said, “We welcome children with disabilities and special educational needs”. The next sentence started, “However”. That is, I fear, too often the case. Concerns have already been expressed about this issue by other noble Lords—notably, at Second Reading, by the noble Baroness, Lady Grey-Thompson. This amendment would ensure that, where parents try to name a school and a local authority relies on an exception under subsection (4) in order to refuse to name that school and then puts forward another school, the second choice school can only be named on a plan if the young person or parents agree.
I turn to Amendment 161. Clause 41 enables the Secretary of State to approve certain institutions, such as independent schools, for the purpose of enabling the institution to be the subject of a request to be named in an EHC plan. Subsection (5) gives the Secretary of State power to make regulations about giving and withdrawing approvals. This amendment would require the regulations to also set out the rights of appeal, the timetable for that and what the relationship with the local offer will be in such circumstances.
A similar amendment was tabled by Robert Buckland MP in the House of Commons. Robert Buckland was my Conservative opponent when I was first elected to Parliament. He is now chairman of the All-Party Group on Autism and is a doughty champion of people with special educational needs. He has done a tremendous amount of work and many of his arguments are well worth listening to. When he argued this in the other place, the Minister said that:
“The indicative regulations set out the procedures and timetable for the Secretary of State to follow on approving institutions … Regulations 5 and 6 set out the procedures for the Secretary of State to follow in withdrawing approval.”
However:
“The regulations do not set out procedures on how to appeal or review the Secretary of State’s decision”.—[Official Report, Commons, Children and Families Bill Committee, 16/4/13; col. 508.]
The Government appear to believe that such regulations are unnecessary. Consequently, without this amendment, families and young people are left without a route of appeal in such circumstances. That is a serious omission from the legislation which serves to undermine the power of children, young people and their families to get the best for their youngsters’ needs. The Minister’s colleague did not see the merits of that argument when it was advanced by Robert Buckland in the other place: I hope he will be convinced by it in this place.
Baroness Perry of Southwark (Con)
My Lords, I very much support the amendment in the name of my noble friend Lord Lexden. I recently spent a day at Gretton School in Cambridge: an independent school entirely for children across the whole range of autism. Some of the most severely autistic young people are in classes of four and five. At the end of my visit, I took my hat off to the patience and skill of the school’s teachers. As I said, it is an independent school; it also offers boarding. It takes children from a wide range of local authorities from the eastern and East Anglia regions. Most of them come with statements from their local authorities and are supported by them, but many parents have to pay additional fees for boarding. Gretton School and others such as those my noble friend described have an important part to play in the range of offerings for disabled children. It is important that they are named in the Bill, as otherwise local authorities may simply assume that they cannot be included in EHC statements. I very much hope that the Minister will look sympathetically at these arguments.
Children and Families Bill
Lord Touhig Excerpts(10 years, 6 months ago)
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Lord Touhig (Lab)
My Lords, I shall speak to Amendment 77 in my name and that of my noble friend Lady Hughes of Stretford and to Amendments 82, 83, 84 and 85 in my name. Before doing so, I add my support to Amendment 70A in the name of the noble Lord, Lord Ramsbotham. For me, this amendment represents an important first step in reforming the exclusion policy in schools so far as people with special educational needs are concerned. Some 70% of children excluded from school in England are SEN. That is telling us something: it is a real challenge for us to tackle, and the noble Lord’s amendment at least goes some way to start looking at that. I know from family support workers in south Wales that in some of our cities they are concerned about what they call “soft exclusions”, whereby a child is told, “We don’t want to see you for the next 10 days”, or, “It’s half term next week; we don’t want to see you till we come back after half term”. There is no record kept. This is illegal but it happens, and I fear that young people with learning difficulties are much involved.
In evidence given to the All-Party Group on Autism’s commission on special educational needs, one mother said that she had not been called into school about the behaviour of her autistic son for some considerable time because his teacher was someone who had an autistic child herself and understood the problem. I fear that youngsters with special educational needs are, probably unintentionally, the victims of school exclusion policies, and that is not what we want. I hope that the Minister is minded to welcome this amendment.
I now turn to Amendment 77, which seeks to address the issue of early identification. I know that I am not alone in the Committee in believing that identifying and supporting children with special educational needs as early as possible is the most important factor in improving outcomes. Clause 22 requires local authorities to seek to identify children and young people in their areas who may have special educational needs. Amendment 77 would insert the words “as early as possible”, which most people would believe is common sense—after all, why would we not do that? Why would we not seek this information as early as possible?
The professionals who work with children have a crucial role to play: they are the first educators that the children come into contact with. A number of issues, such as speech and communication problems, developmental delays and behavioural and literacy issues can be better addressed by a good quality early years provider. This means that children start school in a much better position than they would otherwise, and fewer resources are required in later years.
There is evidence, though, to show that the early years workforce is typically the least qualified in the education sector. Reductions in local council budgets have meant that they have cut their training spend for early years staff by 40% in the past three years. This has resulted in many cutting back on early years area SENCOs that they have previously employed to provide advice and training in early years settings. However, the support that they provide is needed now more than ever. A recent Communications Trust project, Talk of the Town, evidenced that across a federation of schools, children and young people’s speech, language and communication needs were under-identified by an average of 40%. The Communications Trust said it,
“remains concerned over how the Bill will ensure that the mechanisms for identification will work in practice across all educational phases and also on local authorities’ ability to identify needs as early as possible, and to respond to these needs”.
The National Deaf Children’s Society, RNIB and Sense are also concerned that overall proposals do not place sufficient emphasis on the importance of early years support for children with sensory impairments and their families.
The Opposition tabled this amendment in the Commons and in response the Minister said:
“One of the things we will consider is whether, and if so how, some of the good practice on the area SENCO role can be reflected in the code of practice”.—[Official Report, Commons, Children and Families Bill, 19/3/13; col. 369.]
I have had a look at the redrafted code of practice, and I cannot see where this is taken forward. Perhaps the Minister, who has considered this in much more detail than I have, can update us on this issue.
I have added my name to Amendment 80, which was tabled by the noble Baronesses, Lady Brinton, Lady Walmsley and Lady Howarth of Breckland, but, in view of the time, I do not propose to speak to it.
Amendments 82, 83, 84 and 85 would ensure that Clause 24 placed a duty on health services to inform the relevant local authority if a child under compulsory school age may have SEN. These amendments would extend this duty to apply to all children or young people who may have special educational needs, regardless of age. It is important that children do not fall through the net and go unidentified early simply because they do not fall within the specific age group set out in the Bill. Having spent 20 years as a councillor, I remember taking up problems on behalf of constituents, often only to be told, “Sorry, councillor, he or she falls through the net”. Who created the net? We did. We, the legislators, the makers of the rules, want to make sure that in this case the net helps and protects people.
In the other place, the Minister referred to single integrated checks and sought to assure Members that the provisions in the Bill would support the identification of children’s SEN and make the these amendments unnecessary. If that remains the Government’s view, will the Minister rehearse for our benefit the argument that the four amendments are not needed and set out clearly where in the Bill the objectives that these amendments are seeking to realise are covered and catered for?
Lord Addington (LD)
My Lords, I support the amendments tabled by the noble Lord, Lord Ramsbotham. For anyone who knows anything about the system, even in passing, it is brilliantly obvious that we should have had something like Amendment 70A in the Bill. If a child has been excluded twice, it is statistically almost inevitable that there will be a problem, and he or she should be assessed so that the problem can be identified accurately.
We all carry a degree of history with us in this Room. Mine is of dyslexia. The standard way you identify dyslexia is by the difference between spoken and written language. If you cannot speak correctly, the chances of identifying that person as dyslexic go down. We know there is comorbidity. You have to get into the system and look in the round. It is very important.
I have interests to declare. I have used voice recognition technology for years. It requires a degree of use of language verbally to have a way of dealing with that problem. We should thank the noble Lord for bringing to our attention the fact that everything about communication levels starts to come together in the spoken word or the written word. The way these things hang together is always complicated and difficult. It gets more difficult to deal with them the later they are identified.
To say thank you to the Government, I think that Clause 22 is the most radical and brave thing I have seen in a Bill for a while—saying that we will go out and identify those with special educational needs. Most of the special educational needs lobby has been about saying to the educational establishment, “Oi! There’s a problem. Come over here and give us a hand”. I have lost track of the number of times I have had conversations with Members of both Houses of Parliament about dyslexic children and grandchildren: “How do you get the help?”, “Who do you go through?”, “What’s the matter?” and “Do we tell them they have a problem or not?”. Identification here is very important. Making that a stronger duty, despite the fact that it might be difficult, will make the rest of it easier. You cannot help someone if you do not know what the problem is. I very much support this amendment and the sentiment behind it.
Children and Families Bill
Lord Touhig Excerpts(10 years, 6 months ago)
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Lord Touhig (Lab)
My Lords, I support my noble friend Lady Massey’s Amendments 35 and 37. I will also speak to Amendment 36 in my name. Amendment 36 would grant control of the pupil premium to the virtual school head. It would ensure that virtual school heads are responsible for allocating the pupil premium to looked-after children.
Clause 9 is one of the few parts of the Bill that provides extra support for children in the care system. It amends Section 22 of the Children Act 1989 by introducing a duty upon every local authority to appoint an officer whose role will be to ensure the promotion of the educational achievement of looked-after children. The role is usually referred to as a “virtual school head teacher” or “virtual head”. The idea of the virtual head is not new. My noble friend Lady Massey referred to pilots; pilot schemes have been trialled in 11 local authority areas and have been shown to be extremely successful.
Why is this amendment necessary? Well, the most recent figures we have show that in 2011-12, just 14% of children looked after for at least one year achieved A* to C in GCSEs, including English and Maths. That compares with 58% of all children, so there is no doubt that children who have entered the care system, and who are likely to have experienced abuse or neglect before entry into care, need additional educational support. Once in care, the disruption that can be caused by a placement breakdown or move can also severely impact upon educational achievement.
As parents and grandparents, I am sure we all know that young people approaching their GCSEs have enough to contend with without needing to worry about whether they will be living in the same house when they take the exams. For many young people in care, this is a common reality. It is little wonder that their success rates in exams lag behind the norm. The original proposal to require local authorities to provide a virtual head was contained in the report of the All-Party Parliamentary Group for Looked after Children and Care Leavers, Education Matters in Care. At that time, the chairman of the all-party group was Edward Timpson MP, who is now the Children and Families Minister.
The all-party group went further. It also recommended that:
“Virtual School Heads should control the Pupil Premium”.
The pupil premium allows for a level of financial support for eligible children, which is currently about £600 per annum, to be used by their school. The all-party group report also noted that virtual heads have little control over how the pupil premium is spent and recommended that the system would be more effective if they were given control of this resource. As the present Children’s Minister recommended that these changes were necessary when he chaired the all-party group, I am sure that I am not alone in being a little disappointed that they are not included in the Bill.
The arguments in favour of their introduction remain and I hope that when we consider the Bill on Report, we will ensure that these provisions are properly made. The case for allowing the pupil premium to be controlled by the virtual school head seems to be supported by recent comments made by Ofsted’s chief inspector Sir Michael Wilshaw. He expressed concern that a significant minority of schools are struggling to show how their use of the premium is having any significant impact upon the attainment of those pupils it was intended to assist, so clearly there is an issue that Ofsted recognises. I hope that the Minister will see the wisdom of this amendment, and I look forward to his reply.
Baroness Morris of Yardley (Lab)
My Lords, I support the amendments in this group—in particular my noble friend Lord Touhig’s amendment—but I very much support the point made by my noble friend Lady Massey about the need to evaluate. That is a theme throughout the considerations of this Committee. It is not that nobody has thought of doing the right thing but that we have not been good enough in implementation and monitoring, and in amending what we do in the light of the evidence. That is why that amendment is important and is one that we should pursue.
My comments will be in particular about the pupil premium. It is a brilliant little idea. I admit that when I first looked at the Bill and when we were discussing it at Second Reading, I could not be against the notion of the virtual school head but it did not quite ring right with me. I was not against it but I was just not sure that it would have any impact. Perhaps those local authorities that have voluntarily carried it out and feel they own it will make a success of it. My worry was that once you made it statutory throughout the nation, it would become just a job to be done and a box to be ticked. It needed some sort of bite beneath it that would give it teeth and make sure that something happened. I did not raise this at Second Reading because I could not think of anything at the time, but I think that the pupil premium might be one of those things that means that schools and other places in the education system have to sit up and listen because there is a control of resource in someone else’s hands. That might just give the edge to this post, new as it is, as it starts its contribution to education.
There are perhaps one or two other reasons. My noble friend Lord Touhig was right to say that the evidence at the moment is that some schools are not spending the money to greatest effect. Many are, and there are now lots of things that will help them spend the pupil premium to great effect, such as the toolkit. A lot of good work is being done by Ofsted and a lot of people. My worry is that this could be one of the cases where the group of people on whom it is spent least effectively are those children who are looked after. They seem to miss out on every bit of the system. This gives us a chance to make sure that in this we actually give them a head start.
I envisage that those people who are virtual heads could build up a body of expertise and experience about how best to spend the pupil premium. In that way, they could be champions of spending quite a significant amount of money. I am sure that teachers throughout schools in all local authorities might then look to them for advice. I trust that they will do it carefully. I would sooner the amendment said “in partnership with schools” because I do not think it will work unless it is in partnership with schools. Perhaps after consideration here, if it were to be brought back on Report, my noble friend Lord Touhig and others might wish to reflect on that. However, it is a really good addition to what is basically a good idea—the virtual school head. Until this amendment, they ran the risk of not having any teeth to do their work.
Children and Families Bill
Lord Touhig Excerpts(10 years, 10 months ago)
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Lord Touhig
My Lords, with some improvements, which I am sure will be proposed in Committee in your Lordships’ House, the Bill has the potential to be a landmark piece of legislation. I begin by welcoming the Government’s stated intention of improving the special educational needs system for children, young people and parents. I declare my interest as a vice-president of the National Autistic Society. I know from its work that the current system is letting down too many children, with devastating results. Just one in four young people with autism accesses any form of education or training after school. Only 15% of adults with autism are in full-time employment, and 26% of graduates with autism are unemployed. That is the highest rate for any disability group.
Given these figures, it is no surprise that the Bill is eagerly anticipated. The sentiments in the 2011 Support and Aspiration Green Paper were encouraging. I pay tribute to the then Children’s Minister Sarah Teather, who promised that parents would no longer have to fight for the services their children need. Her successor Edward Timpson has said that the Government would,
“be maintaining and, in some cases, extending key protections and entitlements that matter to young people and their families”.
Therefore, expectations are very high indeed. Some progress has been made since the Bill was introduced.
I ask the Minister to confirm one of the commitments made in the other place. May we have a guarantee that independent special schools and specialist colleges can be named by parents on education, health and care plans? The indicative draft regulations are somewhat lacking in detail on this point. Perhaps the Minister could indicate when we will see the final draft of the regulations. I have seen for myself that independent schools, such as those run by the National Autistic Society and Ambitious about Autism, often cater for children with some of the most complex needs. They offer innovative new approaches to providing specialist support, while maintaining links with mainstream schools and helping children stay anchored to their local communities. That is very important.
The new system as set out in the Bill promises to be person-centred and to take a holistic, joined-up approach to children and young people by taking into account their education, health and care needs. This is an excellent aspiration, but can the noble Lord confirm that the Bill will make this a reality? I want briefly to raise some key areas of concern which I believe must be addressed if the Bill is to deliver on its promises.
First, the Bill must protect and enhance existing rights for parents and young people. Crucially, under the current system, parents rely on their right to appeal statements at tribunal. Under the new system, only provision that is deemed to be “wholly or mainly” for the purpose of education can be appealed in this way. This effectively represents raising the bar and could restrict the ability of parents to uphold their rights and support the needs of their children. I believe that the words “wholly or mainly” should be removed from Clause 21.
Secondly, I am sure that many in this House will agree that one of the most positive things in the Bill is that education, health and care plans can be maintained up to the age of 25, as opposed to the age of 19 in the current system. Transition, as we know, can be very challenging for disabled young people, and it is important that legislation should reflect the fact that young disabled people may benefit from longer periods in further education. However, like the noble Baroness, Lady Sharp of Guildford, I am concerned that reference is made in Clauses 36, 37, 44 and 45 to the fact that a local authority “must have regard” to a young person’s age. I fear that, in these difficult economic times, this will lead local councils to refuse education to young people over the age of 19. Here, I seek an assurance from the Minister that he will act to further refine these provisions to ensure that this is not the case.
I turn now to a related matter, that of the promise of a joined-up system. I would like some clarification as to why the Special Educational Needs and Disability Tribunal cannot provide a single point of appeal for any issues concerning education, health and care plans. When a child with autism is receiving services such as speech and language therapy to help with communication or cognitive behavioural treatment to help with anxiety, how do we define whether those are educational or health needs? It is extremely difficult. It may be essential for a child to attend a school, but doing so is also likely to improve the child’s general health and well-being. Similarly, social care support such as intensive help at home for those with very complex needs or short breaks for their families are much needed and help in all kinds of ways. Parents and children certainly spend too long waiting and battling the system before they get the help they need. The local ombudsman and the myriad complaints procedures in the health service do not deliver real redress, so extending the role of the tribunal to cover health and social care in education, health and care plans would simplify the system. It would deliver real accountability for parents and help make sure that children with special educational needs receive all the services they need to realise their potential and to thrive in later life. It would also help the Government to realise their ambition of a joined-up system.
Fourthly, we must make sure that the system works for all children and young people with special educational needs, not just those with education, health and care plans. For many children with autism, specialist support is provided within a mainstream setting and without any statutory rights. At a time of squeezed local council budgets, we must make sure that there is real accountability for families as well. Councils must be under an obligation to ensure that there is sufficient provision to meet the needs of all residents with special educational needs. The local offer must not simply be an information tool, it must have real teeth. Failure to do this will result in parents increasingly seeking education, health and care plans as the only means of enforcing their right to the support that their child needs.
Finally, the Care Bill, which is being considered in Committee, contains a number of helpful provisions around care plans and how they can be transported when a person moves into a new council area. I am pleased that the Government have recognised this and have tabled an amendment on portability in the other place. However, this amendment simply creates regulation-making powers. Can the Minister inform us of when we might see these regulations and reassure us as to whether, as is the case with the Care Bill, they will make explicit reference to the continuity of provision that children and young people can expect when they move?
I return to the point about delivering the Government’s promise. This new regime must make the system easier and more accessible for all families, not just those I would call the “sharp elbow brigade”, who are educated, articulate and have the means to work the system. If it is to be effective, we have to ensure that all disabled children and young people and those with special educational needs benefit from the Bill, not just some.
Education: Personal, Social and Health Education
Lord Touhig Excerpts(11 years ago)
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Lord Touhig
My Lords, I join colleagues in thanking my noble friend Lady Massey of Darwen for securing this debate, and it comes on the eve of the Children and Families Bill coming to this House. I would like to concentrate my remarks on PSHE and its impact on youngsters with special educational needs.
Last year, I sat on a commission set up by the All-Party Parliamentary Group on Autism. We looked at reform of the special educational needs system and we produced a report, The Right Start: Reforming the System for Children with Autism. In a survey which figured in our final report, we found that 84% of respondents said that teachers were not given enough training effectively to teach and support children with autism. Training for teachers is obviously an essential step in ensuring that all staff gain an understanding of the condition which they can then pass on to their students.
One in every 100 children in school is autistic, and most are in mainstream schools. For many of these children, school can be a difficult place. Their condition makes communicating with other students difficult, and many will experience sensory overload. The Children and Families Bill, which is currently in Committee in the other place, gives us an important opportunity to transform the special educational needs system so that more children with autism and SEN will have access to the special support that they need.
We must also think about children’s experience of school life more widely and how we can improve understanding of special educational needs pupils. That is why personal, social and health education lessons are an opportunity to improve, among other things, communication between all students, both those with special educational needs and their peers. Such lessons should help young people to develop a rounded and tolerant understanding of the community in which they live. This must include awareness and understanding of disability, including conditions like autism which can often be hidden. Children with autism, especially those with high-functioning autism or Asperger’s syndrome, can find that their disability and the challenges resulting from it are not obvious to their peers or teachers. Therefore, the classroom presents an important opportunity to help tackle this lack of awareness and misunderstanding. The National Autistic Society—I declare an interest as vice-president—recently conducted a survey which revealed that 22% of young people with autism said that they have no friends at all. A shocking 63% of young people with autism said that they had been bullied. What parent would not be greatly concerned if they found that their children left home for school and spent their school day isolated, alone and friendless? If children have special educational needs, they are singled out for abuse and intimidation by their fellow students simply because they are different—bullying and abuse caused by ignorance, intolerance and, sometimes, spite. We know that some schools have excellent strategies to tackle bullying and we need to encourage that good practice. However, it is important that teachers have a full understanding as well as training to cope.
Transforming opportunities starts at schools; it is about improving special educational needs and changing attitudes among teachers and students alike. Promoting personal, social and health skills in schools should be involved in that and should be about educating young people for the real world. It should be an enriching experience and one that should shape our youngsters for the future in which they will live.
Schools: Pupil Premium
Lord Touhig Excerpts(11 years, 6 months ago)
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Lord Hill of Oareford
My answer makes a similar point. It is important that we learn lessons from the ones that are spending it effectively. We will do that through the work of the Education Endowment Foundation, which was set up specifically to spread good practice and help other schools learn the most effective ways of tackling disadvantage. It is early days, but as more information is published, the fact that from this September schools are having to account for how they have spent their money and what they have spent it on, and demonstrate a linkage between that money and results, will help us achieve the goal of my noble friend Lord Storey.
Baroness Whitaker
My Lords, is the Minister aware that almost all Roma children, no matter how poor they are, do not qualify for the pupil premium because their parents may not have been here long enough. What can the Government do to remedy this manifest inequality?
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, noble Lords cannot speak at the same time. I think it is my noble friend’s turn.
Lord Hill of Oareford
My Lords, as I think I said to the noble Baroness, Lady Whitaker, the focus of the Ofsted inspection is particularly on children suffering from economic disadvantage—those on free school meals—and those are the criteria and judgments that Ofsted will be using.
Lord Touhig
My Lords, three tries for a Welshman. Many parents, including those with autistic children, are told that schools do not have funding to support their child’s special educational needs. I do not think they are helped by the fact that the Government have failed to publish guidance to schools on the use of the pupil premium. Can the noble Lord tell us whether the reforms of the SEN system will ensure that the pupil premium is now better used to help children with special needs?
Lord Hill of Oareford
My Lords, generally the reform to the special educational needs system through the Bill that the Government will be bringing forward next year will help tackle the needs of all children with special needs more effectively than the current system. Not all those children will be suffering from economic disadvantage, so, in addition, the pupil premium will, I hope, help to tackle that issue. I agree with the noble Lord, Lord Touhig, that we need to make sure that we spread good practice. The Government have a role through things like the Education Endowment Foundation, which is an independent organisation that can spread good practice. We certainly need to make sure that best practice on how money is spent on children with special educational needs is spread through the system.
Education and Training: People with Hidden Disabilities
Lord Touhig Excerpts(11 years, 10 months ago)
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Lord Touhig
My Lords, we are indeed indebted to the noble Lord, Lord Addington, for securing this debate and also for the very powerful advocacy that he displayed when he opened it this afternoon. Finding a job is difficult enough these days, especially if you are a young person. Consider how much harder it is if you are disabled. In particular, if you are a young person with learning and developmental disabilities, accessing the right support and opportunities to find a job is especially challenging. On top of this, you are part of a substantial cohort of young people with special educational needs and disabilities, all of whom are likely to be unemployed, too.
In 2009, the Department for Education showed that 30% of young people who had a statement of special educational needs when they were doing their GCSEs, and 22% of young people with a declared disability, were not in education, employment or training when they reached the age of 18. This compares with just 13% of their peers. The Department for Education’s National Pupil Database 2009-10 reveals that just 20% of children with special educational needs and statements achieved five A*-C grades—less than one-quarter of the rate for children without special educational needs.
One person in every 100 has autism. Consider the detrimental effect that this has on the employment prospects for adults with autism. Too many autistic children and their families are being let down by the special educational needs system and are struggling to access the support that they need. That is why I and a great many others welcome the Government’s decision to reform the system through the forthcoming children and families Bill.
The noble Baroness, Lady Browning, has been a great champion and we all admire the hard work she does on behalf of people with autism. She referred to the All-Party Group on Autism’s recent report, The Right Start: Reforming the System for Children with Autism, of which I have a copy. As a result of publishing the report, we will press the Government to ensure that the legislative opportunities down the tracks for change will benefit all children with special educational needs, especially and including those with autism.
Our report, which is based on a public survey and expert evidence from young people with autism, parents, teachers and professionals, leaves us believing that the Government’s forthcoming legislation is perhaps a once-in-a-generation opportunity to make some significant change and improvement. Briefly, I will draw the House’s attention to just five key points from the all-party group report. They cover training and best practice; specialist support at school; involvement of parents and young people; transition, or the extension of the SEN system up to 25; and accountability.
On training and best practice, 84% of respondents to our survey said that teachers were not given enough training to teach and support children with autism effectively, yet we know that training is essential to understanding this complex matter. It is therefore necessary that the Government continue to fund the development of successful training programmes. We also believe that where specialist knowledge exists it should be shared. Schools should be able to draw easily on the expertise of neighbouring schools.
As a subtext, and on a matter that I have referred to before in the House, over 70% of youngsters excluded from school in England have SEN. That statistic should alarm us all. The mother of an autistic child gave evidence to our All-Party Group and said,
“My son is very articulate and very bright, but he’s autistic. The headteacher just thought that he was a naughty boy, who needed some anger management, and he got excluded on a couple of occasions”.
In a major National Autistic Society survey, 17% of children with autism have been suspended from school at least once, and more than 4% have been excluded permanently from at least one school. More than that, 32% of parents surveyed were asked to collect their child at lunchtime or before the end of the school day for reasons other than that the child was ill, and some 19% of parents reported this happening on more than four occasions.
Unless this is officially recorded, these types of exclusions are illegal, and we need to get this message across. Experts who came to give evidence told us that almost every single case of exclusion from mainstream school could have been avoided had more staff been aware of the children’s needs, and had there been better planning at school level to support children with autism.
On specialist support at school, our report highlights the fact that children with autism can have a range of complex difficulties that often need specialist support—that is pretty obvious. Far too often, however, parents say that this expertise is simply not available. We certainly hope that the Government will ensure that all children with autism have access to the support that they need, including those without a statement, or an educational health and care plan. We certainly believe that every school should have a lead teacher for autism—a point made by the noble Baroness, Lady Browning.
Moving on to the matter of involvement of parents and young people, we discovered that less than half of parents of children with autism considered that they were truly involved in shaping the support that their children need and receive at school. Autism professionals we met agreed with this, and so did 30% of the teachers. Over 90% of parents said that they wanted to be more involved, and that they wanted schools and local authorities to work closely with them, sharing information and ensuring that a consistent approach is taken at home and at school.
The SEN system is to be extended to 25 year-olds, and they, too, must be involved in the decisions that affect their lives. As for transition, for too many families the struggle for services intensifies as young people reach adulthood, and as we were told in one evidence session, as statements of special educational need come to an end it often feels “like falling off a cliff”. The Government have decided, I believe rightly, to extend the SEN system to 25 year-olds, but they must ensure that many more young people with autism can access the support and opportunities they need to live independent adult lives, and that those who are able can enter apprenticeships and gain employment. Our inquiry was told by one parent:
“When my son leaves school he has no future. I suggested work experience placements for young people with autism. At the moment they have nothing”.
That is simply unacceptable.
In quoting the noble Lord, Lord Freud, again, I echo the words of the noble Baroness, Lady Browning, who has been a great supporter of and friend to those who work actively on behalf of people with autism. The noble Lord said that the Government want to increase the number of people with autism in work to 30%, doubling it from 15%. We all share that ambition and we back him to the hilt in that.
Finally I will touch on accountability. An important aspect of any reform must be greater accountability for parents. Too many parents who came to give evidence to us said that they had to fight constantly to gain access to the support that their children needed. That is why we need an effective complaints system encompassing all state-funded schools, and it must be a priority, in order to ensure that parents have confidence in that system. Like many others, I wait eagerly for the children and families Bill, hoping and praying that it will help to show us the way forward.
Education: Special Educational Needs
Lord Touhig Excerpts(11 years, 10 months ago)
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Lord Touhig
To ask Her Majesty’s Government what steps they will take to ensure that young people with special educational needs are appropriately supported to enter further education, higher education, training, apprenticeships and employment.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, Support and Aspiration: A New Approach to Special Educational Needs and Disability—Progress and Next Steps sets out our aspirations to help young people in England with special educational needs to make a successful transition to adulthood. The new education, health and care plans will require services to work together to agree a plan which reflects the young person’s needs and their future ambitions covering education, health, employment and independence. We have also developed supported internships as a way of providing meaningful work opportunities for young people, which we will be trialling from September.
Lord Touhig
I thank the Minister for that Answer. Is he aware that Work Choice, the scheme intended to help the disabled into employment, has had very little success in helping people with autism to find a job, while the Work Programme itself seems to find great difficulty in placing anyone with autism in employment at all? Given that the noble Lord, Lord Freud, has said that the Government will double the number of people with autism in employment from 15% to 30%, will the Minister tell the House when the Government will publish a programme to achieve that?
Lord Hill of Oareford
My Lords, first, I very much agree with the noble Lord, Lord Touhig, about the importance of doing everything that we can to address the problem of how we help young people with autism into work. The previous Labour Government published a strategy on that in 2009, which the current Government are working with and trying to build on. As the noble Lord says, my noble friend Lord Freud is working in this area. He recently set up an employer round table, where guidance was published for employers to help them with recruiting young people with autism. That is clearly work that we have to carry on. I do not have an immediate and easy answer because, as the noble Lord knows better than I do, this is a long-rooted and difficult problem. But I can say that the Government are committed to doing what we can to work with a range of organisations to address the problem.
Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012
Lord Touhig Excerpts(12 years, 3 months ago)
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Lord Low of Dalston
My Lords, I am extremely grateful to the Minister for writing to me personally to give me maximum notice of this debate, which has been brought on fairly quickly after the new year. I am not complaining about that. We asked the Minister to make debating the order a priority in the parliamentary timetable when the order-making power was inserted into the Bill on Report so that the proposals could be given the fullest opportunity to show their worth. It is therefore good that we have this early opportunity of scrutinising the order. Like the department, we want to get on with the pilots and evaluating them in order to understand how much substance, if any, there is in the concerns that have been expressed. It was nevertheless considerate of the Minister to give me maximum notice.
The Government have been very accommodating in the approach that they have adopted in the development of the order. In response to representations, they agreed that it should require the affirmative rather than the negative procedure. The sunset horizon has been reduced from five years to two years and the pilots will be undertaken only in pathfinder authorities or those that are piloting direct payments in health.
Some further safeguards asked for have also been introduced. In response to representations from the Special Educational Consortium, the order has been reworded with a view to ensuring that the receipt of a direct payment in no way threatens the statutory right of the child to receive the educational provisions set out in their statement and that the viability of specialist SEN services is not threatened by direct payments taking resources out of the system. Nevertheless, I confess to retaining a degree of scepticism about the Government's ability to ensure all of that and as to what will be the effect of direct payments in practice.
I hope that the Minister will not feel that, having been absent on the occasion when the order-making power was added to the Bill, I have turned up as a bit of a wet blanket as regards the general consensus established on a previous occasion and that he does not wish that I had stayed away again this time. I do not wish to be a wet blanket but just like the noble Lord, Lord Rix, I wish to draw attention to a number of concerns that need to be bottomed, which I believe the Minister is as keen to bottom as anybody.
Education is a universal service for all children. What will be the effect of resources being taken out of the system by way of direct payments? What will be the effect on other children with SEN who do not have direct payments? Will they see services reduced? What will be the effect on the ability of schools, colleges and local authorities whose responsibility it is to educate disabled children and children with SEN to plan for the coherent delivery of the relevant services?
I understand that all relevant statutory duties, such as the duty to provide or arrange special educational provision contained in Section 324 of the Education Act 1996, remain in place throughout the pilots. I also understand that the order includes a requirement in paragraphs 11(c) and 17(f)(i) that local authorities consider the potential adverse impact on other services that they provide or arrange for other children and young people in their areas and that they stop making direct payments if it becomes apparent that the payments are having such an impact. But direct payments take money out of the system. How can the Government be sure that this will not threaten the viability of specialist services? How can they be sure that giving responsibility to the parent instead of the local authority or school will not undermine the legal right of children to receive the provision that they are entitled to? The Government may say that they do not want these things to happen, but how can they ensure it?
There may be unintended consequences too. Some schools and local authorities may wash their hands of difficult children by encouraging parents to take a direct payment. Parents and young people may be encouraged to take a direct payment when assessments are unclear as to what they are entitled to, thus putting their ability to purchase the necessary support at risk. What if parents do not use the direct payment for the purpose for which it was intended? Parents do not always behave as responsibly as we would like. Of course, the local authority might be able to take them to court, but that is surely not where we want to end up.
The Special Educational Consortium is concerned that the Government have not fully considered the impact of resources for this universal service being taken away from schools and local authorities and being held by individuals. Careful thought will need to be given to the impact of parents or young people holding the budget. Direct payments held by parents and young people will inevitably interact with school and college finances and employment policies. This may have implications for the way schools and local authorities plan for the education of children with special educational needs. For example, if a parent employs a teaching assistant to work with their child in school, who will be responsible for managing that teaching assistant? Who ensures that the child’s teacher works collaboratively with the teaching assistant? Who is accountable for the education outcomes for the child, and ultimately how will schools’ ability to plan provision for all children with SEN be affected? Safeguards to ensure the sustainability of specialist support services, particularly for children not eligible for direct payments, need to be copper-bottomed.
There are other concerns, such as how the Government will ensure that the provisions set out in the statement are properly quantified and specified before a direct payment is made. I will not go on listing them in more tedious detail now. The department is aware of these concerns from the Special Educational Consortium. They clearly place a premium on the evaluation of the pilots for bottoming the extensive range of issues to which this order gives rise.
I was greatly encouraged by the way in which the Minister was seized of the importance of evaluation when the order-making power was inserted into the Bill on Report and, most important of all, that he clearly saw the importance of approaching the evaluation with an open mind and not with a preconceived idea about what should come out of the pilots. The fact that the department is also working so co-operatively with the Special Educational Consortium on the development of the order and, I hope, with the development of the pilots is very much to be welcomed and is very encouraging. Undertaken in that spirit, I greatly look forward to the results of the evaluation.
Lord Touhig
My Lords, I join other noble Lords in thanking the Minister for sharing with us the correspondence that his fellow Ministers have had with others because that was very helpful in updating us on progress. As a result of the Education Act 2011, the Secretary of State now has the power to create pilot schemes to test the use of direct payments for meeting special educational needs in education settings. During the passage of the Bill, the Government accepted that this important proposal should receive the appropriate level of parliamentary scrutiny and that it should be done by the affirmative resolution procedure. The Government introduced that at that stage. In his opening remarks today, the Minister very kindly gave me some credit for that idea, but it was not really due to me: it was a holy trinity as the noble Lords, Lord Low and Lord Rix, had the same idea. Unfortunately, they could not be present on Report, so I actually spoke the words and got the credit that the Minister has given me. A holy trinity and not one part of the deity alone was responsible for this proposal, and I am delighted that the Government welcomed it.
On Report, I and others welcomed the greater personalisation of education provision for children and young people with special educational needs because it is right. However, there are some particular risks in the use of direct payments in education, particularly in schools. This is a major change in the way that education is delivered, and it is right that it is being carefully considered. I know the Special Educational Consortium has been working closely with the Minister’s officials. I am very grateful for and appreciative of the hard work that his officials have put in and the understanding that they have had in trying to mitigate some of the worries that the Special Educational Consortium and others have had about aspects of the Bill.
Education Bill
Lord Touhig Excerpts(12 years, 6 months ago)
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Lord Avebury
No one is suggesting that there should be any restriction on the right of parents to choose whatever school they think is best for their children. The noble Lord’s remarks are based on a total misunderstanding of the amendment and what the noble Baroness, Lady Turner, said. But perhaps I may move on to the remarks of the right reverend Prelate the Bishop of Oxford, who I thought said that these amendments were fine but unnecessary. I am hoping that he is in support of the amendments proposed by the noble Baroness, Lady Turner, because surely there may be teachers who are not entirely opposed to the faith basis of a school who belong to other religions or none but have a particular aptitude for mathematics, say, or geography, and are therefore suitable for those subjects in the school, although it has a religious ethos. He said, rightly, that the schools would want to choose persons who were best capable of teaching the non-religious subjects and that they would not wish to discriminate in making choices when appointing those persons.
I am afraid that we have made no more progress on the issues covered by the noble Baroness on religious discrimination than we did on collective worship since Committee, although, with the noble Baroness, I was grateful to the Minister for writing to us and entering into a detailed discussion with us in the interval between Committee and Report. The Minister will remember that he was handed a dossier of legal opinions, which the noble Baroness, Lady Turner, mentioned, including one commissioned by the Equality and Human Rights Commission that challenged the compatibility of the Schools Standards and Framework Act 1998 with the European Union employment directive. The focus of these opinions was Section 60(5). Looking back at the passage of this subsection through this House in 1998, I see that the original wording of the equivalent part of the Bill, then Clause 58(4), was entirely benign and unobjectionable. It provided that in a voluntary aided school of a religious character, no teacher of subjects other than religion would receive any less remuneration or be deprived of, or disqualified for, any promotion or other advantage by reason of his religious opinions or of his attending religious worship.
The amendments to that clause, to which we are now objecting, turned the original words on their head by saying that preference may be given, in connection with the appointment, remuneration or promotion of teachers at a voluntary aided school which has a religious character, to persons whose religious opinions are in accordance with the tenets of the religion or religious denomination of the school. Those amendments were drafted following a delegation to the Home Secretary led by the then right reverend Prelate the Bishop of Ripon and Leeds, who acknowledged in the House that the amendments had been,
“prepared in consultation with the Churches”.—[Official Report, 4/6/98; col. 576.]
He understandably expressed his delight that the churches were “completely satisfied” with the amendments then inserted. No other amendments were made by any other noble Lord.
Those proposals were made by the Church of England and accepted by the Government at the same time as the employment directive was being drafted in Europe to combat precisely that sort of unfair discrimination. They are the basis of the formal complaint lodged by the National Secular Society earlier this year to the European Commission, which I understand is still under consideration. If Section 60(5) is left alone, they may yet be the subject of litigation by teachers who consider that they have been treated less favourably than others in terms of their appointment, remuneration or promotion to posts involving the teaching of history, English or mathematics, for example, because they do not subscribe to the particular religion or denomination which gives the school its religious character. I suppose that the same would apply not only to Christian but also to Muslim schools, where a teacher might be discriminated against in the same way because he belongs to the wrong brand of Islam.
The then Government compounded the offence of undermining the directive by insisting, at the 11th hour, as a condition of their acceptance of the directive, that previous legislation, including in particular the School Standards and Framework Act, should be regarded as being in effect exempt from the new directive. The Government were so desperate for unanimous agreement, as was required, that they were able to force the Council of Ministers to accept their demands.
The noble Baroness, Lady Turner, has, on the grounds of pragmatism, gone only a modest way today to reverse these discriminatory 1998 amendments. I therefore appeal to the Government to recognise that these privileges granted to religious bodies create, as do all privileges, victims—those who would otherwise not have been disadvantaged. The innocent and undeserving victims of Section 60(5), which the noble Baroness seeks to replace in her Amendment 86, are teachers—there may be thousands of them—who are not of the faith of the publicly funded school or academy where they teach or apply to teach subjects other than religious education.
Lord Touhig
My Lords, I have some concerns about these amendments, in particular Amendment 86 in the name of my noble friend Lady Turner of Camden and Amendment 88 in the name of my noble friend Lady Massey of Darwen. Amendment 86 would dilute the existing legislative protection which allows Catholic schools to give priority to Catholics when recruiting to any post, without the need to provide justification for doing so. That has been a long established practice and it is essential that such preference is given to ensure that the Catholic ethos, which is the whole basis of having a Catholic school, is allowed to continue and to be maintained and developed. I suggest to my noble friend that the proposed subsection (5A) in her Amendment 86 is unnecessary since schools with a religious character are already obliged to comply with the Equality Act 2010, which includes appropriate exemptions for such schools.
Amendment 88 in the name of my noble friend Lady Massey of Darwen relates to voluntary controlled schools only. There are no voluntary controlled schools in the Catholic sector but this amendment would affect Church of England voluntary controlled schools which convert to academy status. These schools, which currently admit only a certain proportion of children of faith, would be prevented from increasing that quota except in specific circumstances. My fear is that if my noble friend's amendment was incorporated into the Bill it would pave the way for imposing quotas on all schools of a religious character. I do not think that is reasonable, right or just. From the point of view of the Catholic sector, this would certainly limit the ability of Catholic parents to send their children to Catholic schools. For that reason, I could not support my noble friend’s amendment.
Baroness Garden of Frognal
My Lords, this debate allows us to return to the topic of faith schooling. As we have made clear in previous debates, the Government believe strongly in the role of faith schools in this country. As we have heard from my noble friend Lord Deben, faith schools existed before there was a state education system and have contributed a great deal to its development. As the right reverend Prelate the Bishop of Oxford set out, it is vital to faith schools that they are able to maintain their particular religious ethos and their ability to deliver the form of education which they have historically provided, and which parents want. We think the long-standing arrangements that provide for this are working well. The Government are therefore seeking to ensure that faith schools which seek academy status continue to have the freedoms they have previously enjoyed, subject to the same protections.
Turning first to the issue of faith staffing, I am aware that the noble Baroness, Lady Turner of Camden, and indeed my noble friend Lord Avebury continue to have concerns with aspects of Clause 60, which seeks to replicate the staffing regime in voluntary controlled schools on their conversion to academy status. We are grateful for the discussions which the noble Baroness had with my noble friend the Minister on these issues and hope that the detailed letter sent to her and to my noble friend Lord Avebury on 5 October provided some reassurance on this matter. My noble friend referred to that letter in the course of his comments. We agree with many of the sentiments expressed by noble Lords today. The issues are really therefore more technical ones, about how these sentiments can best be given effect in law.
“(3A) A statutory instrument which contains (alone or with other provision) an order under section 532B(1) (direct payments: pilot schemes)”
Lord Touhig
My Lords, by introducing these new clauses into the Bill the Government will allow local councils to test the use of direct payments for meeting special educational needs. I certainly welcome and support the greater personalisation of educational provision for young people as does the noble Lord, Lord Low, and the noble Lord, Lord Rix, who I know had some very fruitful and useful meetings with the Minister and his officials. Both noble Lords wished to be here this evening, but are unavoidably unable to be with us; they have asked me to mention to the Minister how much they appreciate the courtesy and the assistance he and his officials have given.
Direct payments have played an important role in allowing disabled people to have choice and control over the services they receive. Nevertheless, there are some significant risks in the use of direct payments in education, particularly in schools. The Department for Education has been working closely with the Special Education Consortium to mitigate these risks, and I know that the Special Education Consortium has certainly welcomed that collaboration and consideration. The matters they are still concerned about include ensuring that the pilot schemes must be set up by an order by the Secretary of State. Establishing the details of the pilot scheme within the legislative framework is a necessary safeguard if these significant changes to the way education is delivered are to be properly scrutinised by Parliament.
The order which establishes the pilots was originally to be the subject of a negative resolution. The noble Lord, Lord Low, and I tabled amendments to ensure these important changes were properly debated through an affirmative resolution procedure. We have withdrawn these amendments because the government amendment means the pilot schemes will be subject to the affirmative resolution procedure as the Minister told us this evening. This is very welcome, and we are grateful to the Government, particularly as the initial amendment on direct payments in education was tabled at such a late stage, as the noble Lord has explained.
The noble Lord, Lord Low, and I also tabled further amendments concerning the details of the scheme. However, as the order will now be subject to the affirmative resolution procedure, we believe these concerns might be more usefully spelt out and discussed in detail during that debate. These too have been withdrawn. Nevertheless, we would still like to put on record some of the issues we hope will be addressed by the order.
We need to know how to measure the reaction of education providers to individuals holding direct payments for special educational provision. This may interact with school and college finances and employment policies, and will affect the ability of schools to plan for all children with special educational needs. Perhaps the Minister will say what steps will be taken to ensure that the viability of specialist SEN services is not threatened where direct payments are taking money out of the system. We also need to know how decisions about the amount of direct payments will be made, particularly if statements are poorly written—there are examples of that as I am sure we all know—and how parents can appeal those poorly written statements. Finally, we need to know whether there will be a thorough evaluation of direct payments in education in particular before Parliament is asked to renew the order in two years’ time.
The noble Lords, Lord Low and Lord Rix, and I welcome the Government’s new position, but we urge the Minister to make debating this order a priority in the parliamentary timetable so that these proposals, which are rightly being tested, can be given the fullest opportunity to show their worth. Great progress has been made, and I have been asked by my colleagues—who are not able to be with us this evening—to say to the Minister in particular how much they and I and especially the Special Education Consortium have appreciated the fact that he has genuinely worked with us to try to resolve our concerns. This seems to be a better way to make law.
Lord Lingfield
My Lords, I particularly welcome this new clause because one of the most important items in it allows a continuation of funding post-16 and 18 to the age of 25. Many parents are dismayed that their “special education offspring”—as one put it to me—fall off the end of a funding cliff when they reach early adulthood, and this pilot will help us see much more accurately how this can be done. I hope, however, with the noble Lord, Lord Touhig, that the Government will set out very clearly how these experiments are to be monitored, so that best practice may be observed and reported. It is also important for the Government to make clear to parents what they should do if they want to challenge the amount of payments, and contend that the health or social service elements are too little. My view is that the clauses are necessarily restrictive, in that as I understand it parents frequently agree part-funding with local authorities, but are not to be allowed to supplement the amount of the direct payment to purchase the provision set out in a beneficiary statement. Perhaps the Minister would look at this again. However, I welcome this step in the right direction—albeit it is a small, pilot step—to alleviate the great problems that there are in the special needs sector. I look forward eventually to seeing the careful evaluation when it is published.