Children and Families Bill

Baroness Brinton Excerpts

Wednesday 30th October 2013 Grand Committee

[The Earl of Listowel (CB)]

My Lords, the noble Lord’s amendments prompt me to ask a question. We know that care leavers have been increasingly going to university, although it seems to have stalled rather at the moment. The question is: of the care leavers going to university, what proportion have special educational needs? Are we doing as well with care leavers with special educational needs going to university as we are with the general body of care leavers going to university? Perhaps the Minister will write to me on that particular question.

[Baroness Brinton (LD)]

My Lords, I declare an interest as my sister is a BSL interpreter at a university in the UK and I worked in the higher education sector for 20 years. I will pick up on the last point of the noble Earl, Lord Listowel. Part of the problem in the HE sector is that there is not always consistency. “Care leaver” can be defined by an individual institution. There are usually generous grants, and they are usually on top of any SEN support, but the definition of care can be quite limited. Certainly it would not always cover guardianship or kinship carers, where children have come out of care. Those are some of the issues that remain.

The reason that I wanted to speak to these amendments is that I absolutely applaud the sentiment behind them. If we are truly to have an SEN offer that covers young people to the age of 25, it is ridiculous that an entire sector of education is not covered by it. My fear is that this amendment tries to tack universities on to a much more local offer, thereby causing problems. I will ask the Minister a couple of questions on this later.

The university provision can be very generous. However, as the noble Lord, Lord Lingfield, outlined, for some students, where there is perhaps the possibility to have diverse views, such as with dyspraxia, dyslexia or one of a number of other SENs, it can be very difficult to get past the first hurdle. I would welcome a transition arrangement, as we have for young people with learning disabilities and social care support moving from child support into adult services, for those with special educational needs entering universities. At the moment they stand completely separate, and frankly that is where the holes start to appear. If a child has a statement under the old system, or an EHC under the new system, they should have that information passed on automatically, along with the level of support that they have had in the past, providing the young person is happy for that to happen.

I notice that the Minister in the Commons said that he would provide further detail as to the proposed contents of the code of practice relating to the transition to university, and made a commitment to consult widely with practitioners in university in drafting the code. I think that that would be extremely helpful. I would also welcome further details from the Minister—perhaps in writing as it is not directly within her field—as to what action the Government will take to ensure disabled students have disability support in place as soon as possible in their course of study. In particular, there needs to be a commitment for the code of practice to recommend that local authorities support and encourage DSA applications as soon as possible the year before entry, and that such support in applying for the DSA is stipulated in the plans of young people intending to study at university. The problem is that that conflicts with the current timescale for young people to be encouraged to apply through student finance, which most people do not do until they are well into their final exams in the summer term before they plan to go up to university. That is too late for students with statements and support because there is not enough time for receiving universities to do the research necessary to provide the right support.

I have said before that I am concerned about local authorities having a duty to secure a place in higher education for students, as would be the implication of this group of amendments. I would encourage mechanisms, perhaps through an alternative amendment, to make sure that there is dialogue so that not just the statement is carried through. If the student has concerns, the local authority may know and understand the case better, and sometimes it is useful if the young person is not the only one arguing their case.

I have probably covered it all. I regret not being able to support these amendments but there may be scope for something that ensures that these young people studying in higher education, whether in college or at university, have as smooth a transition as possible and the continuing level of support without having to reargue the case from scratch.

[The Countess of Mar (CB)]

My Lords, about a fortnight ago I forwarded to the Minister an e-mail I had from a young man who is autistic, questioning the fact that this Bill prevents local authorities from funding university education for SEN young people. I asked the Minister for clarification. Would it be possible to get that today? Are local authorities still able to fund young people to go to university or has the Bill blocked that funding?

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I hope that noble Lords are encouraged by what I have had to say. I know, not least from personal experience of my dyslexic son, that higher education institutions can be outstanding in the way that they support students. I hope that my noble friend will be willing to withdraw his amendment.

[Baroness Brinton]

I was very pleased to hear the Minister’s response about the revised code of practice. I just wondered whether discussions had been taking place between the department and the LGA with Student Finance England, whose website is woefully inadequate on SEN; it is all about applying for finance. There is nothing on the front page that comes up and hits you. The problem is that students who have SEN statements do not know where to go to get into the system early.

[Baroness Northover]

My noble friend highlights a very important problem that we keep coming back to. It is one thing having arrangements in place; it is another thing making absolutely sure that those who need to benefit from them know about them. I shall carry that back and make sure that my noble friend’s recommendations, suggestions and points are fed in.

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[Baroness Brinton]

My Lords, I support the comments that have been made by previous speakers. I shall add a brief comment on Amendment 104. At the end of his speech, the noble Lord, Lord Low, helpfully said that we need robust, accessible and effective information in the offer. I would add “consistent and detailed”. If parents are comparing different authorities, as they may have the option to move, they must be able to see apples and apples rather than completely different things. Despite our need for individualism within local authorities, it would be very helpful if the offer were expressed in a fairly familiar and consistent way.

There also needs to be some detail in it. I shall come on to that in a later group that also looks at the publication of the offer. Without that detail, it can be very difficult for parents to understand what is on offer. I know a qualified teacher of the deaf who has just retired. When I first met her 15 years ago, she was based in one school with a number of children who were being integrated into the mainstream there. She spent the last five years before she retired in her car tearing around the county from appointment to appointment. As far as the local authority was concerned, deaf children were being taught sign language, but a 20-minute session every other day is not good enough for a child just starting sign language. Parents might think that they are going to get a level of offer that they are not going to get if the information in the offer is not explicit.

[Lord Touhig]

My Lords, I shall speak to Amendment 110, which is in my name. It ties in with other amendments tabled which seek to ensure that the local offer has both teeth and some meaning for parents looking for support. The amendment places a duty on the responsible agencies to deliver the services that they say will be in the local offer. The Government have already placed a duty on health bodies to deliver what they outline in EHC plans. However, a corresponding commitment in relation to the local offer remains sadly absent from the Bill. It is the local offer that most children with additional needs—and there are 1.4 million of them—will be relying upon.

In the other place, the Minister said that to have such a duty would limit the services which groups such as voluntary and community organisations were prepared to offer. He also said that the local offer already increased accountability by involving children and young people and their families more and allowing them to compare what is offered. I agree that listening to children and young people and their parents, and ensuring that they have adequate information, is the right approach but the omission from the Bill of a duty on responsible agencies to deliver services is simply not right in terms of accountability, or in ensuring that families will actually receive the services specified as being needed in the local offer. It is important that there is real accountability. The Bill is currently lacking in this area for the delivery of the local offer. If we do nothing about it, there is a serious danger that the local offer will serve as merely a statement of ambition rather than as something upon which parents and families can rely. Amendment 110 would put some meat on this bone.

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[Baroness Howe of Idlicote (CB)]

My Lords, we have heard a lot about the local offer and I suspect that we will hear a lot more. The local offer sets out in one place information about provisions that a local authority expects to be available for children and young people in their area with special educational needs, including those who do not have an education, health and care plan.

The two amendments that I have tabled are about ensuring that the local offer includes information about how schools and local authorities cater for disabled children in their area. This should include how schools and local authorities are satisfying their statutory obligations under the Equality Act 2010 to disabled pupils. That duty has already been mentioned by the noble Baroness, Lady Hughes, so she will understand how important it is to ensure that this duty is fully taken on and included in the Bill. If adopted, my amendments would ensure that duties owed to disabled pupils by the Equality Act were recognised and carried out by schools.

Amendment 106A proposes to insert at the end of line 6 on page 24,

“a summary of relevant information from the SEN information reports for schools in the local authority, as under section 65”.

This first amendment will ensure that the local offer includes the information required by Clause 65. Clause 65(3) is particularly relevant for disabled pupils, as it provides a requirement that the special educational needs information report, which has to be produced by all mainstream schools, includes information on,

“the arrangements for the admission of disabled persons as pupils”,

and,

“the steps taken to prevent disabled pupils from being treated less favourably than other pupils”.

“Mainstream schools” includes schools maintained by the local authority, academies and free schools. The report must also include the facilities provided to assist access to the school by disabled pupils and information about the accessibility plan that the school is required to publish.

The accessibility plan demonstrates how the school is increasing the access of disabled pupils to the school curriculum, improving the physical environment and improving information about the school for disabled pupils and their parents. The requirement to develop accessibility plans applies to all schools and Ofsted can look at the performance of these duties by schools.

Amendment 106B, the second of these amendments, proposes the insertion in Clause 30, at the end of line 36 on page 24, of the words,

“the strategy prepared by the local authority under paragraphs 1 and 2 of Schedule 10 to the Equality Act 2010 (accessibility strategy)”.

This amendment will ensure that the accessibility strategy prepared by the local authority will be included in the local offer. The accessibility strategy is a written document that specifies how maintained schools in the local authority area will increase disabled pupils’ access to the school curriculum, improve the physical environment for disabled pupils and improve information for them. Strategies must take into account the preferences expressed by pupils and their parents and should be reviewed regularly. Local authorities must have regard to the need to allocate adequate resources for the implementation of the strategy.

I very much hope that the Minister will understand and accept the importance of making clear to everyone just how vital the Equality Act is in ensuring that all the things that we want, and the Government want, are actually carried through. I hope that, under those circumstances, the Minister will feel able to accept these amendments, no doubt with a little refinement on their own part, and make them part of the Bill.

[Baroness Brinton]

My Lords, my noble friend Lady Sharp is not able to be in her place at the moment so, in her absence, I am speaking to the amendment in her name, Amendment 106. This is a probing amendment intended to obtain reassurances from Ministers that the entitlements of children and young people with SEN and their families will not be weakened by the passage of the Bill or by the revision of the statutory SEN code of practice.

The local offer, as currently described in Clause 30, imposes a significantly weaker and more narrowly defined duty on local authorities than the equivalent provision in the Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001, which remain in force. These regulations set out what information a local authority must provide, including, among other things, requirements to provide information about the action that the local authority is taking to promote high standards of education for children with SEN, and what action the local authority is taking to encourage schools in their area to share best practice in making provision for children with SEN. There must also be information about the general arrangements, including any plans, objectives and timescales for: monitoring the admission of children with SEN—whether or not they have a statement—to schools in their area; providing support to schools in the area with regard to making special educational provision for children with SEN; auditing, planning, monitoring and reviewing provision for children with SEN in their area; securing training, advice and support for staff working in their area with children with SEN; and securing training, advice and support for staff working in their area for children with SEN.

The information that I have just listed is important for parents, but it also incorporates a set of important principles in relation to education for pupils with SEN: the recognition that pupils with SEN need high standards of provision; that these standards should be regularly monitored and reviewed; that teachers need training, advice and support; and that schools should collaborate to share good practice.

Clause 30 merely provides that regulations may make provision about the information to be included in an authority’s local offer. It is important that the information listed in the 2001 regulations is collected and publicised by local authorities. The local offer should carry this forward into the new framework. It is not clear that this will be the case with the loose wording of the Bill. As far as I can see, there is nothing proposed in the code of conduct which would impose these duties on local authorities. Are the 2001 regulations going to be carried forward? What is the position? I would be grateful if the Minister could clarify the situation.

[Lord Addington]

I shall speak to my Amendment 108A. I should probably declare again the interests I have already mentioned. I declare another interest: I am a convert to the fact that assistive technology and computing generally can transform somebody’s life because I use assistive technology for everything I send out. Without voice operation, I cannot send an e-mail unless I take a week over it, and I cannot guarantee to send it properly. This is due to dyslexia. However, there are dozens of different types of assistive-technology solutions for dozens of different types of problems. You can now get a computer which bounces light off the user’s eyes to transfer the user around the screen. This was pure science fiction a few years ago. You have to run to keep up with the ideas and even the names of the technology at the moment.

The technology allows people to act independently. I could have stuck something at the end of another list about independence. I could have added a paragraph (d) to subsection (3) to provide that when you go into adult life you get a package to go with you. You probably already do. Access to work will give you some assistance, so there is a degree of consensus around this. Getting assistive technology early is very important because it allows people independence. I hope my noble friend will be able to give me some idea about how it is being taken on. What is being done to allow people to work like this? It is great to have somebody at your shoulder who assists you all the time. Unfortunately, you cannot take them home with you or guarantee that they will be with you when you are middle-aged, so learning to use other forms of assistance is vital. I hope that we will get a positive answer there.

The idea of the expression “assessment settings” is to find out how we will integrate the use of information technology into the examination system. The noble Lord, Lord Nash, has proved himself tough, durable but human by not being here. I have had some discussions with him on this subject. The Government seem interested in making sure that you can get into the examination system properly—I will return to this subject when we reach apprenticeships—but only if you make sure that the examination that is set online is compatible with the assistive technology that is used. If you get the wrong format, the two computing systems cannot talk to each other, so you cannot take the examination. In many parts of the examination system we go back to nurse—an amanuensis or extra time. It does not take a genius to figure out that those are two fairly blunt instruments. The first removes a great deal of responsibility from you, and the other is of limited utility. Extra time has attracted a great deal of attention because people say people are getting more of it. I have always wondered how much assistance extra time is if you do not know the answer. I suspect that 25% extra time to stare at a blank page does not help very much.

However, some idea of how that is progressing in the Government’s thinking would be extremely helpful at this time, as it all ties into the important standards of education—examinations. I look forward to what my noble friend will say about this and I hope that this is the start of a positive discourse on the subject.

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[Lord Ramsbotham]

My Lords, I take up the offer made by my noble friend Lord Low to say a little a bit about the quality assurance I have in mind. Noble Lords may remember two extremely good safeguarding reports produced by the joint inspectorates involved in education, health and the criminal justice system, one in 1999 and the other in 2003. Those came about in the balmy days before the then Chancellor of the Exchequer, Mr Gordon Brown, axed what had been the Social Services Inspectorate and became the Commission for Social Care Inspection. The role of social care responsibility for children was then taken on by Ofsted and that of adult social care by the Care Quality Commission, which was instigated by the reforms that had to follow the axing of the Social Services Inspectorate. I have always regretted strongly that although this House was able to preserve Her Majesty’s Inspectorate of Prisons we were unable to preserve the Social Services Inspectorate. Frankly, we have been reaping the wind ever since.

My feeling about what we are talking about here is that we need something akin to the inspections for the safeguarding of children carried out by the joint inspectorates. They were led by someone with overall responsibility but able to call on the quality assurance addition of the inspectors of particular elements of the system. In this case, we have healthcare and education but also other things including the local offer, how that is made and so on. That is why I laid this false trail, as it were, to the Children’s Commissioner. I suggest to the Minister that in thinking about the quality of what we are proposing—and what the Government are very definitely interested in introducing—the assurance on that is carried out by those best able to do it working together, rather than giving it to any one person, because there are so many aspects to it. Quality assurance is absolutely essential and must be objective and consistent in every part of the country where local offers are handled.

[Baroness Brinton]

My Lords, I shall speak to Amendment 113 in my name and to Amendment 114 in the name of the noble Lord, Lord Low. Amendment 113 is a probing amendment to seek clarity from the Government on whether they are willing to provide a national or common framework to support the development of local offers so that parents can easily identify how provision varies. Parents of children with sensory impairments support proposals to improve transparency. This amendment was suggested to some of us by the National Deaf Children’s Society, RNIB and Sense. Some parents have reported that under the current arrangements:

“We have fallen across possible choices and information quite often by chance”.

Another parent said:

“I got an information pack when my child was diagnosed, but half of it wasn’t relevant to deaf children and it didn’t include information on the local deaf school”.

The three charities I mentioned support the concept of the local offer, and it is very important to the 75% of deaf children and 57% of children with sight loss who do not have a statement of SEN. The draft code of practice and regulations set out what information is to be included as part of the local offer and are very detailed. However, they do not specify how information should be broken down, nor do they set out a template that local authorities should work to that would make that comparison easier. In the absence of a common format, I am not sure that I can believe that the local offer will genuinely improve transparency over what help is available to these children. The local offer will be helpful only if local authorities are required to publish information about support available for different types of SEN. The needs of children with SEN are very different; for example, sensory needs are very different from the needs of autistic children. If the Government are not minded to create a set template so that parents can easily compare provision between different areas, I hope they will discuss it with the Local Government Association so that it can create a common template, because it would ease local government’s passage into the new arrangements if there is one framework to follow.

Moving to Amendment 114, the overall accountability framework around the Bill looks somewhat weak. Noble Lords will have gathered that from my previous amendment. There seems to be very little to stop a local authority publishing a weak local offer that is poorly understood or inaccessible. Despite the Bill frequently referring to improving accountability, the available rights of recourse for parents are limited. It is good that parents have the right to leave comments on the local offer and that they will be published, but there is no obligation on the local authority to address any of the concerns raised. Parents have the right to seek a judicial review against the local authority for failing to meet the requirements set out in the Bill, but this is not an option that many parents will be able or willing to pursue.

As well as being limited, the framework relies almost entirely on parents to respond and take action. Many parents are busy being parents. As one parent told Sense at an event held to discuss the Bill:

“We’re forever chasing, and it’s a headache. I often don’t have enough time to be making phonecalls and people don’t always come back to you so you’re just chasing and forever trying to sort everything out. You’ve got to think all the time—which are the bits worth fighting about?”.

Many parents do not know what they do not know. They are not in a position to assess whether the quality of a teacher is as good as it should be, nor do they have the time to research whether provision in other areas is better.

The Government’s White Paper Open Public Services stresses the importance of ensuring the quality of provision in any move to create diversity of services and providers. It states that the Government,

“will ensure that providers of individual services who receive public money … are licensed or registered by the appropriate regulator”.

A significant amount of funding is spent on supporting children with high needs. More than £500 million has been allocated by the Department for Education for this year. Many are concerned that there is relatively weak oversight of how this funding is spent and of whether it leads to improved outcomes. As well as leading to doubts about whether SEN provision is effective, it also raises questions about value for money and scrutiny of expenditure. There needs to be a stronger external accountability around the local offer. As has been already outlined by the noble Lords, Lord Ramsbotham and Lord Low, this could be taken up by Ofsted or the Children’s Commissioner.

In another place, the Parliamentary Under-Secretary of State for Children and Families stated that he was exploring with Ofsted how concerns about SEN provision could be covered under Ofsted’s existing programme for inspecting local authority school improvement functions. This statement was made in the spring of this year and, unfortunately, no update has been provided since. I am sure that there needs to be further certainty on the local offer and accountability before the Bill progresses to Report.