Children and Families Bill

Baroness Howarth of Breckland Excerpts

Monday 28th October 2013 Grand Committee

[Lord Touhig (Lab)]

My Lords, I entirely endorse the arguments advanced by my noble friend Lady Jones of Whitchurch on Amendment 73. I spoke about this at Second Reading and argued then that the Bill must protect existing rights for parents and young people and not diminish them. I think we all agree on that. At present, parents rely on their right to appeal statements at a tribunal. However, if my understanding is correct, under the new system that the Bill will introduce, only provision which is deemed to be,

“wholly or mainly for the purposes of education”,

can be appealed in this way. This raises the threshold, as my noble friend Lady Jones said, and it restricts the ability of parents to uphold their rights and support the needs of their children. The removal of the three words “wholly or mainly” is, I think, absolutely necessary.

My noble friend referred to the letter that the Minister sent to all noble Lords following the Second Reading debate. She mentioned that he said that the Government would be looking at ways to address this matter. He also explained—and this gave me some hope—why Clause 21(5) was included in the Bill, but he added:

“As there is now a duty on health commissioning bodies to secure the health care provision in a Plan, this clause is no longer necessary to ensure that the child or young person receives the health care provision specified in the Plan.

However, retaining the clause does enable young people and parents to appeal to the tribunal in respect of health care provision where it is defined as special educational provision in accordance with the clause—as now”,

a point just made. We now need some clarity from the Government about precisely what they want to do about this part of the Bill.

[Baroness Howarth of Breckland (CB)]

My Lords, I declare an interest as the president of Livability, which is an organisation that cares for people with complex needs. I am very concerned about this issue because we have two colleges for young people aged 16-plus where their social and educational needs are met together. Sometimes it is quite difficult to differentiate between the two, as we found during Ofsted inspections. If young people have extremely serious difficulties that need perpetual health provision and you are trying to help those young people to learn skills—the sort of skills whereby they can sit and pick up a cup instead of screaming all day, which is how they are when they arrive—it can sometimes be difficult to differentiate between education, social care and health provision. I am simply asking that nothing in the Bill should make that even more difficult. Usually we have difficulty getting payment for the social element of these colleges, but recently we have found ourselves being given the social element without the educational element of the colleges. Some really difficult issues are emerging and I should like to stop them before they develop. I should be delighted if the noble Lord, Lord Nash, would one day visit Nash College.

[Lord Addington (LD)]

My Lords, can my noble friend give us some idea about how the Government will remove those things that are not for educational purposes in the case of a young person with complex needs or a problem that prevents them accessing the process of education? That seems to be what the noble Lord, Lord Ramsbotham, started with. Getting some clarification now about how that process will take place will be of help. If we have a system in place that gives some degree of confidence, I think that we can probably move on from this. If not, it will be a real problem.

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[Baroness Northover]

My Lords, this group of amendments relates to Clauses 25 and 26, which deal with promoting integration and joint commissioning. These provisions are at the centre of our reforms and I am grateful to noble Lords for their careful consideration of these issues. Children and young people with special educational needs need integrated services. Too often they have to tell their story over and again, and too often they or their parents struggle to navigate a system that makes no sense either to them or to the professionals who are supposed to be helping them. In this mini-debate we have had an echo of the discussions we had on both the Health Bill and the Care Bill, where noble Lords were very keen, as were the Government, to take forward better integration and working together across these areas. Noble Lords who have just come from the Care Bill will be extremely well aware of how the Government have sought to take this forward, addressing how people have so often fallen between the cracks. This, too, is part of the attempt to ensure that those with special educational needs are better supported and that the authorities responsible for them work more closely together.

These clauses seek to tackle those issues head on. The integration duty sits alongside duties for a local authority and its local partners to co-operate with each other. I remember extremely clearly, as other noble Lords no doubt will, how integration, as debated in the Health Bill, had to be part of the new arrangements for the health service. This echoes much of that. It links closely to the joint commissioning clause that provides the statutory framework to enable partners to work together effectively to deliver a better experience for the child or young person and their families, and support improved outcomes. Joint commissioning sets out the framework for key elements, such as the local offer, education, health and care plan assessments, and personal budgets. It seeks to improve both the working relationships between local authorities and health bodies, and the provision to children and young people with special educational needs. It requires the local authority and health bodies to establish clear procedures for making decisions and, in particular, to agree what support is needed locally and which agency will deliver it. Crucially, they must agree how they will resolve disputes between partners, as well as how they will deal collectively with complaints concerning education, health and care provision.

The new draft SEN code of practice’s chapter on joint commissioning has developed a great deal, and I hope it may help to reassure noble Lords to know that it puts great store on the importance of making decisions in joint commissioning arrangements—an issue to which the noble Lord, Lord Ramsbotham, has just referred. It specifies that the arrangements should be robust enough to ensure that all partners are clear about who is responsible for what, who the decision-makers are across education, health and care and how partners will hold each other to account where there is a dispute. It recognises the importance of getting elected members and chief executives across education, health and social care on board, and recommends that the arrangements for children and young people with SEN should be specifically accountable to councillors and senior commissioners. It recognises that local accountability can take the form of a programme board, acting as a bridge between the local authority’s education and social care leadership and health partners.

It also reflects that health bodies must work with the local authority in commissioning integrated, personalised services and designing the local offer, including ensuring that relevant contracts with providers reflect the needs of the local population. Local authorities, clinical commissioning groups and NHS England should develop effective ways of harnessing the views of their local communities so that commissioning decisions on services for those with SEN are shaped by people’s experiences and aspirations. The dovetailing of the SEN reform clauses with the NHS reforms is central. The NHS mandate requires clinical commissioning groups to consider the needs of children and young people with SEN and disabilities, so we see immediately the crossover. The Health and Social Care Act reforms require local authorities and clinical commissioning groups to participate in the health and well-being board and to produce a joint strategic needs assessment and a joint health and well-being strategy that sets out how local needs will be met. So the needs are to be identified, and plans have to be put in place as to how they are met.

The health and well-being board has a duty—and I well remember it—to encourage integrated working. For the purpose of advancing the health and well-being of the people in its area, it must encourage people who arrange for the provision of health or social care services in the area to work in an integrated manner. As I said, the Care Bill has been taking that further forward and making it a reality. I hope that that context helps when looking at how we are trying to tackle the needs of these particularly vulnerable children.

I heard what my noble friend Lady Sharp said about the probing nature of her amendment. As ever, she probes extremely effectively. She is seeking to explore how these new arrangements will work in practice, and obviously she is absolutely right to do that.

My noble friend wondered whether SENCOs would have too much on their plate. Since 2009, the Government have funded more than 10,000 new SENCOs to study for the National Award for SEN Coordination. We will support a further 800 places in 2013-14 and this will help them in their important role in linking with other agencies, such as health and social care. I hope that that helps to take this matter forward.

Many of the amendments in this group reflect an apparent desire to puts lots of detail in the Bill. This is an argument with which everyone here will be very familiar—whether it is necessary to specify certain things in the Bill in order to make sure that certain things happen. I am sure that we are all seeking to go in the same direction, which is to achieve what the Bill sets out to do. From noble Lords’ probing as to whether it is going to be delivered by the Bill as it is, I certainly sense that there is agreement on that.

However, noble Lords will also be familiar with the fact that if you specify in great detail in a Bill, you can inadvertently exclude things that you have not included. That is why there is always discussion about what happens in guidance and secondary legislation and so on, and that is why I am so pleased that we have the SEN guidance. It is comprehensive and, I hope, addresses a number of issues that noble Lords are concerned about. From that guidance, your Lordships can see how the Bill translates into what we intend in practice.

As noble Lords will appreciate, we feel that there is a danger that if too much is specified in the Bill, that will then hinder the kind of flexibility that may also be required at a local level. Noble Lords who heard the pathfinder organisations, which came to address us the other day, probably share my feeling that the often very imaginative and creative ways in which they were going about their work and the way they were working with other organisations in their local areas to address the needs of the children were very impressive. One would not wish to do anything that stifled that. One would wish to support them in taking that forward. The aims of what one is seeking to achieve and the details being spelt out in the guidance—

[Baroness Howarth of Breckland]

I have not spoken in this debate but I should like to ask the noble Baroness a question. The thing that concerns me greatly as a practitioner is the variableness of how co-operation takes place across the country. In some places, certainly where there are special projects such as pathfinders, it works well, but in my experience some authorities do not make timely decisions, which can mean that placements are not agreed, and again I refer to my experience in adult colleges for severely disabled young people. If a local authority cannot agree between its own social services provision and its education provision, how does it then hope to get co-ordination across the piece?

I probe only because of my anxiety that we get this right. I agree that it is not always good to have too much detail in a Bill, but how through the guidance will we ensure consistency across the country so that decisions are made appropriately and young people get properly placed, not left in back rooms in homes with distraught parents when a college place could make the difference?

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The impact evaluation report warns that actual costs may in fact be higher. That is already identified, given that pathfinders have been working with relatively small numbers of children to date. That leaves me very nervous that we are asking local authorities to deliver these reforms without adequate resources. I urge the Minister to respond positively to those concerns.

[Baroness Howarth of Breckland]

My Lords, I find the speeches of the noble Baroness, Lady Wilkins, a breath of fresh air. Often, sitting in these debates, I feel that I am in a time warp bubble where we have high hopes and expectations for the future. The word “hope” was used earlier by the noble Baroness, Lady Sharp, and I think I muttered to the noble Baroness, Lady Howe, “Is hope enough to achieve what we want?”. I ask the Minister to be realistic in her response. We are raising the expectations and hopes of hundreds of families. Day in and day out, I see families struggling to get services that they simply cannot access or which do not exist, and being persuaded to accept something else because what they feel they need is not available.

I welcome the Bill enormously. As I have said before, I think that at its heart is a real care for that group of families, but I am immensely concerned about what happens when it goes through. I speak also as a vice-president of the Local Government Association and work often with local authorities and their leaders. I know the struggle that they are having with government finances to make those services work. I ask the noble Baroness how we move towards achieving those services, and that level of services, while keeping a realistic picture, so that families do not expect more than they can hope for, but somehow ease the system so that, as the noble Lord, Lord Low, said, they are not engaged in a huge antagonistic battle day in and day out to move just a step forward. If only we could make some of it easier and clearer so that they knew what they could expect, that would be of huge benefit.

I am sorry if I sound slightly sour in saying all of that, but the noble Baroness, Lady Wilkins, presented us with the reality as it is, and as many of us see it on the ground, day by day. I think that I have said enough to make my point. I care about the families; I care that they do not have unrealistic hopes. I just want them to be able to get what is intended by the Bill.

[Baroness Howe of Idlicote]

My Lords, I am happy to support the amendment of my noble friend Lord Low to strengthen the accountability measures around the local offer. I hope that all the comments that have been made will strengthen the arm of the Government in making certain that they are delivered.

For far too many families the process of accessing support for their disabled child or child with special educational needs involves them navigating their way around a complex, inflexible system which is still steeped in bureaucracy. All too often parents feel that they have to be persistent and tireless if they are to get the services they need, with only articulate families or those who shout the loudest—in essence, probably, more middle-class families—being listened to. Therefore, accountability around the local offer for services, on which almost 1.4 million children will be reliant, must be as robust as possible so that families can ensure that the services they need are available in their local area.

This is something that the Education Select Committee emphasised in its pre-legislative scrutiny of the SEN reforms, stating:

“The importance of getting the Local Offer right cannot be overstated”,

and recommending that the Bill must contain improved accountability measures by which offers can be evaluated. The amendment of my noble friend Lord Low would create a situation where local authorities would have to work closely together with families, as well as with school governors, children’s centres and nurseries, with the common aim of making local support for disabled children and children with SEN the best that it can be.

In these difficult financial times, when every penny counts, ensuring that children with SEN are given timely and effective support in their local communities will certainly prevent families reaching crisis point, where they need more expensive support further down the line as a result. We should not underestimate the importance of this partnership working. Too often parents feel powerless and that their needs are not being listened to. As a consequence they are forced to fight for a statement of special educational needs or to go to a tribunal to get the right support for their child. This is, and remains an unacceptable situation. It wastes time, money, resources and can be emotionally draining for parents who already face immense challenges on a day-to-day basis. Indeed, I echo the chair of the Education Select Committee, the Member for Beverley and Holderness, who stated at the Report stage of the Bill in the other place that he hoped there would be fewer people having education, health and care plans than under statements,

“because local offers meet so many of the needs of parents and young people”.—[Official Report, Commons, 11/6/13; col. 205.]

The local offer has the potential to be truly transformative in improving the lives of families with disabled children, ensuring that services are designed by families for families. However, I am not confident that the current provisions in the Bill will guarantee this. I will listen with enthusiasm to any reassurance I can get. I further urge the Government to accept the amendment of my noble friend Lord Low, which would prioritise the needs of families and ultimately lead to better life outcomes for 1.4 million children.

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I am sure that I will not have totally reassured noble Lords. However, I hope that what I have said about what is in place here and the transparency and accountability that we have put on local authorities, and what I have said about funding, will help to reassure noble Lords, and that they will be content to withdraw, or not to move, their amendments.

[Baroness Howarth of Breckland]

May I just ask a question about the funding? Much as local authorities do not like ring-fencing, how will the Government ensure that that funding is properly directed to these services?

[Baroness Northover]

The issue of exactly how to make this as effective as possible is under discussion at the moment, and I am very happy to write to the noble Baroness to spell that out in more detail.