Children and Families Bill

Baroness Howe of Idlicote Excerpts

Wednesday 23rd October 2013 Grand Committee

My point is simple: whether you need injections for diabetes, tablets for cystic fibrosis or support with epilepsy, that should not be a barrier to full-time education. I have always thought that the Bill is progressive. I do not think that anybody would say, “Down with the Bill!”; I think that everyone feels that the Bill is a real way forward. What we are about is making it better. I was delighted to see the Minister’s amendment—I thank him for it—which means that, for the first time, there will be a duty of care, there will be statutory guidance and we will, I hope, circulate good practice. I spoke this week to Ofsted, which is keen to be involved to ensure that that good practice and statutory guidance are delivered. The real issue will be the quality and substance of the statutory guidance, but I hope that, once it has been issued, there will be no more letters from little girls saying that they have been barred from or delayed in starting school because of a simple condition that the school could deal with.

[Baroness Howe of Idlicote (CB)]

My Lords, I applaud what has just been said, as this pins down carefully and cleverly just what you are covered for or not covered for, about which there is clearly a good deal of confusion. I have a lot of sympathy with almost all the amendments in this considerable group. I will particularly address two and refer to more as we go along. I want to stress the role of the Equality and Human Rights Commission. I will bring forward a number of amendments about this, although a number of noble Lords have already used these arguments—and rightly so.

Amendment 144ZA is also about equality. It would require education, health and care plans to specify what disabilities a child has and what reasonable adjustments are needed for the school to make to enable the disabled pupil to participate fully in the education provided by the school and to take part in the other benefits, facilities and services that the school provides for pupils. In practice, many disabled pupils who also have an education, health and care plan will receive all the support that they need through the special educational needs framework and there will be nothing extra that the school has to do.

Although a child has an education, health and care plan, that does not mean that the school’s duty to make reasonable adjustments for them no longer applies. Hence, some disabled pupils with special needs will still need reasonable adjustments to be made for them in addition to any support they receive through the education, health and care plan. For example, an infant school disabled pupil with attention deficit hyperactivity disorder receives some individual teaching assistant support through the special educational needs framework. He is diagnosed with severe asthma and needs assistance with his nebuliser. Although this is not a special educational need, his asthma is likely to be a disability for the purpose of the Equality Act. A failure to provide a reasonable adjustment would place him at a substantial disadvantage. The school trains his teaching assistant and she provides him with the assistance that he needs. That would be a reasonable adjustment for a school to make.

Amendment 205A to Clause 65, headed “SEN information report”, is also put forward by the Dyslexia Association. The amendment proposes inserting the words,

“the reasonable adjustments that are in place for disabled persons, as required by section 20 of the Equality Act 2010”.

Clause 65 places a duty on governing bodies of maintained schools and proprietors of academies to prepare an information report on special educational needs and disability provision.

This report must include: arrangements for SEN needs and the admission of disabled pupils; the steps taken to prevent less favourable treatment of disabled pupils; the facilities provided to assist access to the school by disabled pupils; and the accessibility plan that schools must publish under the Equality Act 2010. Schedule 13 to the Equality Act 2010 specifies that a school’s duty to make reasonable adjustments is an anticipatory one owed to disabled pupils generally and therefore schools need to think in advance about what disabled pupils might require and what adjustments might need to be made for them. My amendment will require the information report to include an additional requirement on schools when compiling their special educational needs information report regarding information about the anticipatory reasonable adjustments that are in place for disabled persons generally.

Amendment 205B to Clause 67, headed “Code of practice”, states:

“Page 47, line 32, after “Part” insert “, and the duties imposed by section 20 of the Equality Act 2010 (duty to make adjustments for disabled persons)”.

This amendment ensures that the code of practice includes comprehensive details about the requirements placed on a school by the reasonable adjustments duty, as per the Equality Act. This duty applies to all disabled children regardless of whether they have an education, health and care plan, or whether they have been assessed for special educational needs. This is in line with the expressed intentions of Schools Minister Edward Timpson at the All-Party Parliamentary Disability Group in April this year, when he stated:

“One of the things I am keen to do through the Children and Families Bill, and particularly through the Code of Practice, which is a statutory document, so schools have to take regard to it, is to marry up that code with the Equality Act, so that schools, teachers in schools, are clear where they are responsible, and what the rights are of young people who are in their schools. So, we are looking at referring closely in the Code of Practice to the Equality Act and everything that pertains to it that should reflect on better provision of special educational needs and disability provision within schools and the guidance that the EHRC, Equality and Human Rights Commission, has produced, a very helpful guidance around reasonable adjustments duty”.

This amendment would lead to the inclusion of information as set out in the Equality and Human Rights Commission’s reasonable adjustments technical guidance, explaining the duties a school has towards a child who has a disability, whether or not they have a special education need. In particular, this would cover all reasonable adjustments needed to address any substantial disadvantage, and how the reasonable adjustment duty works in conjunction with requirements to provide SEN provision.

I recognise that the draft code of practice on SEN issued in the last few weeks includes a number of references to the Equality Act 2010 and the reasonable adjustment duty as it applies to schools. The Equality and Human Rights Commission has had a number of very productive discussions with officials in the Department for Education, where it is clearly recognised that the reasonable adjustments duty is a very important part of the considerations schools make when looking at the needs of disabled pupils and pupils with special educational needs. With this amendment, I am asking Parliament to consider formalising the current statutory definition of the code of practice such that it is stated in the Bill that it applies to both the SEN framework and the reasonable adjustment duty under the Equality Act 2010. Given that there is a recognition in relation to pupils with disabilities or SEN, it really would be helpful if the status of government guidance on reasonable adjustments is of equivalent status to that on SEN.

There are a number of other things I should like to say within this group of amendments. I would particularly like to mention Amendment 223 from Diabetes UK. The Health Conditions in Schools Alliance is made up of more than 30 organisations representing more than a million children. They support Amendments 220 and 223, which call for duties to be placed on schools to properly support children with health conditions. The Government have now tabled Amendment 241A, which places a duty on schools to support children with health conditions and to follow the statutory guidance. This amendment in the name of the noble Lord, Lord Nash, is, as has already been said, very welcome, but it is also clear from those who have looked at it that we will require further assurance from the Government that children and parents will not have to face the problems they currently do. It would be very helpful indeed if the Minister could give us that assurance, so there will be no doubt in the future.

At the moment, as noble Lords know, too many children with health conditions are not getting the support they need. Their health is put at risk and they can be excluded from lessons, from school trips and even from school entirely. It can mean that some parents have to go into school to provide care for their child at the expense of their own job. It can also mean that children with health conditions are simply not given the opportunity to reach their potential in school, which is a major disaster for them. If a child is not getting the support it needs, there is very little a parent can do. They can, of course, take legal action, but how many, frankly, are in a position to do that or could afford it, particularly with the conditions that now have to be fulfilled?

Although the Government are to be applauded for recognising and dealing with this problem, it requires a duty on schools. We know that some schools will not meet the needs of children with health conditions. What sanctions will schools face if they do not implement the duty and follow the new statutory guidance? If children do not get the support they need, what avenues will parents have to hold the school to account? We would welcome assurance from the Government that their statutory guidance will make clear what schools are required to do and how they should do it. Placing clear duties on schools so they have policies and plans in place to support children with health conditions will mean that school staff will know what is expected of them, which is crucial, and parents will know what schools should be doing. Most importantly, it will mean children with health conditions will get the support they need and get the most out of their education. I beg to move.

--- Later in debate ---

[Baroness Howarth of Breckland]

My Lords, I support the noble Baroness, Lady Hughes, and those who have spoken to these amendments about the inclusion of children. I simply hope that it is a mistake, a slip of the pen, and that “children and young people” was intended and can be put in. We now have a great deal of experience of engaging young people. Certainly, CAFCASS has done a huge amount of work in working with very young children and understanding their wishes and feelings. The Children’s Rights Director spent a long time talking to young people and young children about how decisions were made about them. It is amazing how very young children feel very deprived of having a part to play in their own lives when they have not been included.

A lot of research shows that not including children in decisions has harmful effects. We know from similar research into divorce that young children who are taken along and understand what is happening have less trauma later than those who suddenly find out that it is happening. There is similar research into the effect of understanding on children. I hope that this is a slip of the pen and that we will find that both are included.

[Baroness Howe of Idlicote]

I will not keep the Committee for long. As my name is attached to a number of amendments in this group, I want to emphasise what the noble Baroness, Lady Howarth, has said so ably. It is crucial that from the moment at which a child can speak, their views are sought. To an extent, that may depend on how much value can be given to what they say and on their age. Nevertheless, it is important to hear what they have to say. As you get older and have great-grandchildren as well as grandchildren, the more you are aware of exactly what you are learning from their experiences, which can change your views quite considerably. I very much support the noble Baroness, Lady Massey.

[Baroness Northover]

My Lords, I thank my noble friend Lord Storey for his welcome of Clause 19, which was echoed by other Members of the Committee in this mini-debate. We fully understand the intention behind the amendments—the desire to ensure that the views of the child and his or her parent or carer, or the young person, are fully taken into account; that they are informed and can participate in making decisions, with the information and support that they need to make those decisions; and that the child or young person is supported to achieve the best possible outcomes.

I assure noble Lords, particularly my noble friend, that Clause 19 enshrines the principle that children and young people should be involved in decisions about their lives. I hope it reassures him and other noble Lords that this applies throughout Part 3, including to the clauses on assessment and planning. This is reflected in the draft code of practice, which sets out in Chapter 7.3 that in determining whether an assessment is necessary, the views, wishes and feelings of the child should be taken into account.

I point my noble friend Lord Storey and the noble Baroness, Lady Massey, to Chapter 7.4 of the code of practice, where we are explicit in setting out that:

“Children, young people and their parents are key partners in the process, and their views on how, when and to what extent they would like to engage must be taken into account. They should feel confident that they will be listened to and their opinions will be valued”.

However, I hear what noble Lords have said and I heard what the noble Baroness, Lady Hughes, said, about any inconsistencies. I am sure that we can double-check to ensure that what was intended runs through both the Bill and the code of practice.

One would normally expect parents to make decisions on behalf of their children where those children are too young or otherwise unable to make decisions, but we would also expect parents to be discussing these issues with their children and explaining to them what was going on. As I have already said, we wish to engage children, as well as young persons, as fully as we can.

We think it is right that local authorities are formally required to consult the parents of children of compulsory school age while at the same time seeking the views of the child wherever possible. For young people over compulsory school age, the Bill is clear—I hope—that it is the young person to whom consultation and notification should be directed, rather than their parents. This is an important step forward to ensure that young people can take control of the support that they receive. Of course, we recognise that parents and other family members are also likely to continue to be involved in the care of young people with SEN.

I shall briefly address Amendment 121 in the name of the noble Baroness, Lady Hughes, which would place specific requirements on the format of the advice provided to parents and young people. We agree that materials should be in a range of accessible formats but we do not think putting this level of detail in the Bill is the best way to go about it. We take her point that local authorities should have the discretion to produce materials in any format that they deem necessary but our worry would be that if there were a list, as it were, local authorities might focus on that. We understand fully what she is aiming at but nevertheless do not feel that it is something to put in the Bill. We believe that the code of practice is the place where we should set out what is expected in terms of formats. I also assure the noble Baroness—this is built into her amendment, although she did not flag it up—that such information, advice and support must be provided free of charge.

I assure the noble Baroness, Lady Massey, who is a trustee of UNICEF, as was I, that we are interested in looking further at how children can be directly involved, hence we are piloting a right to appeal for children. The pilot will enable us to find out whether we can take further steps towards empowering children in future.