Children and Families Bill

Debate between Lord Touhig and Lord Nash

Wednesday 6th November 2013 Grand Committee

[Lord Touhig (Lab)]

My Lords, I will just add a few words. This multilayered system of appeal is absolutely insane and crying out to be altered. In Wales, we have a word, “dwp”, which means stupid or daft in the head. If a Nobel prize were awarded for daft bits of red tape, this would get it. Surely the Government must see the common sense and logic of reducing this down to one system of appeal and stopping all the battles that people who have children with special educational needs or disabilities, or children who are autistic, must have to appeal a decision that they think is not just, right or in the interests of their child.

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

My Lords, this group of amendments concerns appeals and mediation. I thank noble Lords for their contributions. I begin with Amendment 181, tabled by the noble Lord, Lord Storey, the noble Baroness, Lady Hughes, and the noble Lord, Lord Low.

As the noble Lord, Lord Storey, said, noble Lords will know that the Bill is designed to bring education, health and social care together, for the first time, in a joint enterprise to commission and make appropriate provision for children and young people with special educational needs. The child or young person and their family will be at the centre of the new arrangements and have an enhanced role in deciding what is in the EHC plan. That will improve the experience of children, their parents and young people, and the Bill will give them a more active role in agreeing the provision that should be made and ensuring that it is made. This is the joined-up system that the Green Paper talked about creating. We believe—and certainly hope—that this will make the system less adversarial and mean that fewer people will want to appeal to the tribunal.

This improvement in parents’ experience of the system is being borne out in the pathfinders. For example, in Hartlepool, the new process of assessment is wholly transparent, with children, parents and young people fully involved at all stages and able to contribute to the content of the EHC plan alongside professionals. It also includes a simplified complaints and comments procedure to help parents and young people seek redress across all areas of the process locally, if it should become necessary. That is just the sort of innovative local arrangement that we want to see, improving the relationships between parents, young people and local authorities, and facilitating local resolution of disputes. However, it would be silly to deny that, despite the improvements the Bill will bring, there will continue to be people who are unhappy about the provision set out in EHC plans. I quite understand that for those among that cohort who want to complain about two or more elements in the EHC plan, it would seem simpler to be able to appeal to one place, the tribunal, so having the tribunal as a single point of redress initially sounds attractive. However, there are reasons why I think this would be the wrong course to take.

It would not be right to expand the tribunal’s remit to cover all health and social care provision set out in EHC plans. We have already debated at some length, when dealing with earlier clauses, why it would not be right to create an individually owed duty for the social care provision in a plan. That could lead to the marginalisation of other children in need under Section 17 of the Children Act and harmfully affect local authorities’ ability to make the necessary social care provision across all children in their areas. Extending the tribunal’s remit so that it could deal with social care appeals could potentially mirror that unwanted consequence even if there was not an individually owed duty. As the noble Baroness, Lady Hughes, said, we have rehearsed these arguments and I do not wish to go over them again, but I am sure that we will return to this issue on Report and I am very happy to discuss it further with noble Lords in the mean time.

I say that it would “potentially” mirror that unwanted consequence because including appeals about social care in the tribunal’s remit as the Bill is currently drafted would change the nature of the decisions the tribunal could take. Whereas the tribunal would be able to tell local authorities what special educational provision must be set out in a plan, without an individually owed social care duty the tribunal would be able to take judicial review-type decisions only about social care provision. That is, the tribunal would have jurisdiction to review only the local authority’s decision, with powers to quash and remit it for further consideration—consideration which might result in the local authority making the same decision.

Your Lordships may well be saying to yourselves, “There’s an individually owed duty in health under this Bill, so at least you should extend the tribunal’s remit to cover health”. However, that individually owed duty in health is a duty to make the health provision set out in a plan following clinical judgments taken in the light of the wider duties of clinical commissioning groups and the NHS to secure services to meet all the reasonable health needs of all children. Widening the tribunal’s remit to cover health would undermine these commissioning arrangements. It would establish unequal treatment of children with serious health needs by giving a privileged position to those with SEN. It would be difficult to justify children with SEN and health difficulties having stronger rights of redress than, say, children with cancer, neurological conditions, long-term conditions such as epilepsy or diabetes and mental health conditions who do not have SEN. To avoid creating these inequalities between children and young people, it would be better if the existing and well established routes of complaint in health and social care were used rather than the tribunal.

In social care, Section 26 of the Children Act 1989 provides the framework for the complaints procedure for those under 18 which local authorities must establish. In health, the relevant legislation prescribes that a responsible body must acknowledge the complaint within three days and they must offer the complainant the opportunity to discuss the timing and procedure for resolving the complaint. Once that has been agreed, the complaint must be investigated and, “as soon as possible” after completing the investigation, a written report must be sent to the complainant explaining how the complaint has been considered, the conclusions of the report and any remedial action which has been taken or is proposed to be taken. This procedure could cover both what provision is set out in a plan and complaints about delivery of the plan. Of course, it is vital that the parents of children with EHC plans and young people with plans, particularly the smaller group who want to complain about more than one area of the plan, know how to do so. The Bill makes provision for parents and young people to be given information about the routes of complaint that are open to them. Clause 26, headed “Joint commissioning arrangements”, requires local authorities and clinical commissioning groups to work together to offer joined-up advice, information and responses to families and to establish a clear complaints procedure relating to education, health and care provision. The outcome of that work will be available through the local offer.

The new code of practice will require that impartial information, advice and support should be commissioned through joint arrangements and should be available through a single point of access with the capacity to handle initial phone, electronic or face-to-face inquiries. It will also encourage clinical commissioning groups to ensure that relevant information is available at this single point of access as well as to include information on their local health offer on their own website. A one-stop shop will be simpler and much more parent and young person-friendly than potentially having to go to more than one place for advice on a range of issues, including how to complain.

My noble friend Lord Storey made the point that the system may be confusing. I reassure him that we are looking carefully at the best ways of achieving a single point of access to address this, and I would be happy to discuss this further with noble Lords. We share noble Lords’ concern to ensure that parents can find their way to the right route of redress easily.

Amendment 182 was tabled by the noble Baronesses, Lady Hughes and Lady Jones. When this amendment was debated in another place, it was pointed out that some of the information requested by it is already published by the Ministry of Justice on its website, including the number of appeals registered against each local authority. We are happy to explore with the Ministry of Justice the idea of jointly publishing data on the SEND tribunal and, as part of this work, whether the information could be expanded.

However, some of the information that is being asked for by this amendment, such as the amount local authorities spend on defending each case, would just increase contention in the system rather than reduce it. Highlighting how much money was spent on legal representation could create real tension between parents and local authorities. We know, anecdotally, that each party often says that they engaged legal representation only because the other side did. If this amendment is designed to highlight poor practice by local authorities and to provide a basis for improving it, I believe the Bill already provides other avenues for doing so. Children, parents and young people will be able to highlight what they feel is inadequate provision through their role in the local offer. Local authorities will be jointly commissioning services with clinical commissioning groups to make sure that the right provision is available. The Bill is promoting better assessment arrangements, which, as I say, will mean that fewer parents and young people will want to appeal to the tribunal and the mediation will offer the chance to resolve differences before appeals are registered. In view of what I have said, I urge the noble Baronesses not to move the amendment.

Amendment 272, tabled by the noble Baronesses, Lady Hughes and Lady Jones, relates to a recommendation from the Delegated Powers and Regulatory Reform Committee. I reassure noble Lords who may be concerned that we have preserved the grounds for appeal and extended them to young people over compulsory school age. The appeal regulations set out clearly and in one place for the first time the mechanics for notices related to appeals, the powers the tribunal has when deciding appeals, time limits for compliance with tribunal decisions and what happens with unopposed appeals. We are currently consulting on these regulations and will take account of responses when we finalise them. They will be laid in the House for approval by negative procedure.

The Delegated Powers and Regulatory Reform Committee recommended that the tribunal’s powers when deciding appeals should be in the Bill rather than in secondary legislation and asked for an explanation of why this approach is being taken. Alternatively, it suggested that the regulations should be subject to the affirmative procedure, as Amendment 272 seeks. We have put the tribunal’s powers in regulations to make them simpler for the reader of this legislation. Instead of having the tribunal’s powers to determine appeals scattered over the legislation, as they are in the Education Act 1996, we want to bring them together in one place, along with the mechanics for how we expect an appeal to proceed. Given that this is what we are seeking to achieve by these regulations, I believe that the negative resolution procedure is proportionate.

Government Amendments 183 and 184, regarding mediation, are in this group. It is important that the whole of the mediation process set out in the Bill is seen by parents and young people to be independent of the local authorities. There are two stages to the mediation process. First, the parents or young people contact a mediation adviser to be given information about the mediation process. Currently, the Bill makes clear that the mediation adviser cannot be someone who is employed by a local authority. If the parent or young person decides to go to mediation, the local authority must arrange it within 30 days. Currently there is no parallel provision in the Bill to make clear that the person who conducts the mediation must also be independent of the local authority. These amendments make the necessary changes to the Bill to ensure that mediators will be independent.

I hope that my response on all the issues that noble Lords have raised reassures them and that they will feel able not to move their amendments.