Children and Families Bill

Baroness Howe of Idlicote Excerpts

Tuesday 7th January 2014 Lords Chamber

Moved by

[Baroness Howe of Idlicote]

25E: Clause 27, page 23, line 3, at end insert—
“(2A) If the educational and social care provision referred to in subsection (1)(a) and (b) is deemed insufficient to meet the needs of children and young people under subsection (2), a local authority must—
(a) publish these findings; (b) involve those consulted under subsection (3) in producing an action plan to revise the educational and social care provision referred to in subsection (1)(a) and (b);(c) review and report on progress against the action plan; and(d) revise the local offer accordingly.(2B) Regulations shall make provision about—
(a) criteria to be used by local authorities in assessing whether the educational and social care provision referred to in subsection (1)(a) and (b) is sufficient under subsection (2);(b) the information to be included in an authority’s action plan;(c) how an authority is to involve children, young people and families in the production of, and assessment of progress against, its action plan;(d) imposing time limits on implementing the revision of the educational and social care provision referred to in subsection (1)(a) and (b) that has been deemed insufficient under subsection (2A).”

[Baroness Howe of Idlicote (CB)]

My Lords, I start by re-emphasising a point that I made in Committee: that accountability is the most important aspect of the local offer, an offer that will be relied on by 1.5 million children with special educational needs. Without strong accountability mechanisms, families will have no way of ensuring that the services they need are available and it is likely that parents will continue to need to push for a statement or an EHC plan to get the support that they and their child need.

Clause 30 states that a local authority must publish comments from children with SEN and their parents about its local offer, as well as the authority’s response to those comments. I am pleased that the Government have strengthened this further with Amendment 33C, requiring local authorities to publish what action they intend to take in response to comments from parents about the local offer. However, I and, indeed, the Special Educational Consortium, which is backing this amendment, have serious concerns that the Government’s Amendment 33C has been placed in the wrong clause and will therefore fail to have its desired effect. Clause 30 refers to the local offer only as a source of information and advice and not to the provision contained in the offer, and therefore the impact of the Government’s very welcome amendment will be felt only in terms of the quality of information and advice. It is Clause 27, relating to reviewing education and care provision, that must be amended. Will the Government therefore commit to moving Amendment 33C to Clause 27 to ensure that improvements to local services are made? If they commit to doing so, this will make a huge difference and go a long way to reducing the battles that parents face. However, I fear that it will still not go far enough in ensuring that local authorities are held to account and that essential improvements to local services are made.

Amendment 25E to Clause 27 would require a local authority, after publishing comments on the local offer, to involve parents and young people in producing an action plan to revise the education and care provision outlined in the local offer, review and report on progress against its action plan and then revise the local offer accordingly, ensuring that local support was sufficient to meet local needs. This would ensure that local authorities and parents, along with other parties including school governors and children’s centres, worked together at the earliest possible stage to ensure that local provision was the best it could be, bringing about exactly the cultural change that the Government want to see. This is a vital addition to the Bill.

My key question to the Government is: exactly who will check that local authorities do what they promise to do when publishing their response and the actions they intend to take following parents’ comments about the local offer? My amendment would ensure that local authorities not only work with parents and other interested parties to develop an action plan to improve service provision in the local offer but review and report on progress against their action plans. This is exactly the robust accountability measure that will ensure that local support is responsive to local needs—something that the Government have said time and again they wish to see. At the very least, can the Government confirm that the code of practice will include further information relating to the action that local authorities will take in response to parents’ comments about the local offer so that parents and other interested parties, listed in Clause 27(3), will be involved in drawing up an action plan to improve the local offer along with the necessary mechanisms for reviewing and reporting on progress against such an action plan? I beg to move.

--- Later in debate ---

I hope that I have been able to reassure noble Lords that appropriate measures to improve transparency and accountability for the local offer will be established by the provisions in Clause 30, the common framework created by the regulations and the guidance in the code of practice. Just as amendments made earlier on Report have improved the Bill, government Amendment 33C will help to reinforce accountability and encourage provision that responds to local needs by ensuring that local authorities make it clear what action they intend to take in response to comments from children, young people and parents. In view of what I have said today I urge noble Lords not to press their amendments.

[Baroness Howe of Idlicote]

My Lords, first, I thank everyone who took part in this extremely interesting debate. It was at least as interesting as the debate on these subjects in Committee. I should have said at an earlier stage that I had a lot of sympathy with the other amendments in this group, and still do. On my own amendment, I have to admit that I am rather sorry that the Minister does not think that agreeing my amendment to Clause 27 would be a good thing, not least because that would give a lot of authority to the accountability of parents, who could see that what had been agreed between them and their local authority in the discussions they had had would be provided to a high standard. My own amendment was rather more probing, even at this stage, so I shall not take it further. However, if other Members who have spoken to their amendments in this group wish to press them to a Division, I would have considerable sympathy with what would be proposed. I beg leave to withdraw my amendment.

Amendment 25E withdrawn.

--- Later in debate ---

[Baroness Northover (LD)]

My Lords, the Bill already provides for local authorities to be responsible for ensuring that parents of children with special educational needs, and young people with special educational needs, are provided with advice and information. It also already requires local authorities to take appropriate steps for ensuring that parents of children with special educational needs, and young people with special educational needs, know about the advice and information available to them. These government amendments extend that local authority responsibility to children with special educational needs.

In Grand Committee, I said that we were sympathetic to the views of a number of noble Lords about the need for consistent references throughout the Bill and the code to the inclusion and participation of children, where that is appropriate. Where there is a specific decision-making responsibility in relation to children, as distinct from young people, it is, of course, right that we vest that in parents. However, as Clause 32 relates to the provision of information and advice, it is appropriate to make a specific reference to children in it. These amendments do that. Indeed, they have the same effect as Amendments 119, 120 and 122 tabled in Grand Committee by the noble Baronesses, Lady Hughes and Lady Jones. I thank them for highlighting this issue. I hope that noble Lords will agree that these amendments are necessary and I urge noble Lords to support them. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I very much welcome the Government’s amendments in relation to the provision of information to children with special educational needs. Children must be able to take part in decision-making which affects them, according to the UN convention. They will be able to do so only if they are fully informed. This is also important so that under-16s are prepared for the time when they have primary responsibility for decision-making at the age of 16.

The Committee on the Rights of the Child has stated that children have a right to information, which is a prerequisite to their involvement in decision-making:

“Children need access to information in formats appropriate to their age and capacities on all issues of concern to them. This applies to information, for example, relating to their rights, any proceedings affecting them, national legislation, regulations and policies, local services, and appeals and complaints procedures”.

It has even specifically called on Governments to amend legislation to ensure that children are provided with information so that they can be effectively involved in decision-making:

“The child’s right to be heard imposes the obligation on States parties to review or amend their legislation in order to introduce mechanisms providing children with access to appropriate information”.

These statements underpin the Government’s amendment to Clause 32, which I warmly welcome. The amendment to Clause 32 will ensure that under-16s are provided with advice and information concerning special educational needs and disabilities as well as relevant services.

While welcoming these amendments, I urge the Government to ensure that they are paying the utmost attention to the detail of the code of practice and associated regulations with regard to children’s involvement in decision-making. The code of practice and regulations will shape what people on the ground do and how they involve children and young people in decision-making in practice, so it is critical that these documents spell out clearly, consistently and in detail, the responsibilities of local authorities to involve children and young people of all ages in decision-making. I therefore support the Government’s amendment to Clause 32 and welcome the intention to ensure that children, in addition to young people, are provided with advice and information. I also call on the Government to set out clearly in the code of practice and regulations the rights of children and young people to be involved in decision-making.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak, but I have been listening to this argument with considerable interest from the outside. The present system of appeals, and the other ways in which social care and health are dealt with, does not seem sensible and something ought to be done about it. I have to say that my heart goes with Amendment 40A and my head with Amendment 40B. I can see from what has already been said that there are some formidable obstacles to achieving the desirable end—but it is a desirable end, and it really is time, in an admirable Bill such as this, to tackle some of the more difficult themes.

I see that the noble Lord, Lord Storey, may be too optimistic, and that it would be sensible to have some spur to encourage the Government to get somewhere rather than going away and saying, “Yes, in principle we think that this is a good idea but it is extremely difficult. We have problems with the Department of Health and social services and we are not sure, with everything else that we have to do, that we can achieve it”. The advantage of Amendment 40B is that it would be a spur to getting something done. I put in a plea: the present system is not sensible and something ought to be done, and put not into the long grass but into the short grass.

[Baroness Howe of Idlicote (CB)]

My Lords, rather like my noble friend who has just spoken, from listening to the arguments, I feel it is clear that something pretty sharp has to happen. I am assuming that one can have both the amendments. If we can, I am in favour of both of them.

[Lord Nash]

My Lords, I thank the noble Lords, Lord Rix and Lord Low, and the noble Baronesses, Lady Hughes, Lady Hollins and Lady Jones, for tabling the amendments, for their contributions and for bringing their experience to this debate.

Several noble Lords have been kind enough to discuss with me their questions and concerns about the complaints process for children and young people with SEN, including the noble Lords, Lord Rix and Lord Low, and my noble friend Lord Storey. I have been listening carefully to these points and have discussed them at length with my honourable friend the Minister for Children and Families.

Noble Lords have been right to press the Government hard to deliver an integrated complaints procedure to respond to the needs of a more integrated system. First, I reassure noble Lords that work is already in hand to improve the situation. The new code of practice will require that impartial information, advice and support is commissioned through joint arrangements and 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 including information on their local health offer on their website. A one-stop shop will be simpler and much more parent and young person-friendly than having to go to more than one place for advice on a range of issues, including how to complain.

Today, my honourable friend the Minister for Children and Families, who has vast direct personal experience in this area, announced a £30 million package to provide children and young people with SEN and disabilities and their parents with independent support to help them through the new SEN assessment and education, health and care planning process. This funding will be available between April 2014 and March 2016. The aim is to have around 1,800 trained independent supporters from the private, voluntary and community sectors in place by autumn 2014. That equates to about 12 individuals, on average, in each local authority area in England.

This will ensure that many families have access to informed advice and support at a time when the system is changing and new processes are bedding in. These independent supporters will be independent of the local authority, but they will need to work with local authorities and other statutory agencies to help families get the support they need. Where there is disagreement, independent supporters will make sure councils understand what families want, and help families to challenge decision-making. This will mean that children and young people with SEN get the help they really need across education, health and care. This is a major step forward.

On the health side, noble Lords will also be glad to hear that work is under way on how NHS complaints are handled, in the light of the Francis report and the review undertaken by the right honourable Ann Clwyd MP and Professor Tricia Hart into the NHS hospitals complaints system. The Government want to ensure that when things go wrong, the complaints system is clear, fair and open, and that at every level, the NHS scrutinises and learns from mistakes to improve care for patients.

The Parliamentary and Health Service Ombudsman, Healthwatch England and the Department of Health will work with the Patients Association, patients, regulators, commissioners and providers to develop universal expectations for the handling of complaints. These will be used across the NHS to drive improvements in patient satisfaction with complaint-handling. This will benefit children and young people with SEN, so we should be wary of establishing a new set of arrangements for this one group without allowing the wider suite of reforms on NHS complaints to establish itself.

Turning to why extending the remit of the tribunal is difficult, the issues here are extremely complicated. It is tempting to extend the tribunal’s remit across health and social care, but there are legitimate reasons why we cannot do so at this point. Local authorities’ duty to arrange provision that will meet the special educational needs of a child currently with a statement, or, in future, a child or young person with a plan, is absolute. The local authority has to arrange that provision no matter what the cost. This means that when the tribunal makes a decision that will increase the special educational provision for one child, that will have no effect on other children with statements because the local authority has the same absolute duty to arrange provision that meets their needs as well.

The position is different with health and social care. The authority is making decisions having regard to the health and social care needs of the whole population. We have already discussed the issues around social care in some detail. This means that, if the tribunal were to be given powers to make decisions in those areas, any decision the tribunal made to increase provision for one child or young person could mean that other children or young people with similar or even greater health or social care needs could be deprived of provision they require. It would therefore be wrong to give the tribunal the powers implied by the amendment.

The issues are significant. None the less, we should consider what more we should do now better to integrate complaints across services. This is a matter of concern to Ministers in both the Department of Health and the Department for Education. Building on our commitment to funding for key workers to help parents who need to navigate the system, we agree that there is more to be done to ensure that redress works well and feels joined up, where it needs to, and that we will need to keep that under review as the reforms are implemented.

We would therefore be grateful for the opportunity to discuss these issues further with noble Lords before Third Reading to ensure that we can confirm a strong package by that point. The things that we particularly would like to look at include: the role of mediation, including the scope to extend the arrangements in the Bill to cover health and social care as well as special education; notwithstanding the concerns I have set out, whether there could be a role for the tribunal in joining up redress across education, health and care; and what arrangements we should put in place to review how redress works once the new system is bedded in and in the light of wider reforms to complaints in the health service.

I assure noble Lords that that is something that we are taking seriously and about which we are in active discussions, which will continue, with the Department of Health. In view of what I have said, I urge noble Lords not to press their amendments.

--- Later in debate ---

[Lord Storey]

I pay tribute to my noble friend Lord Addington. I used the expression “a dog with a bone” in Committee. He has stuck with this issue and made real progress on it. I also congratulate the Government, because we have now seen real movement: there have to be properly qualified special educational needs co-ordinators in schools. That is real progress, and the Government are to be congratulated on taking that important step.

My noble friend rightly points out two areas. One is the need to ensure that all teachers, particularly those in primary education, have training—perhaps a unit of training—in special educational needs. Every report has shown that the two crucial elements are early identification of a problem and providing the resources to deal with it. I hope that we might see movement on that. Maybe we can move towards a road map for how we ensure that all teachers going into our schools have an understanding of—maybe a qualification in—of special educational needs. I have forgotten the second issue, so I will sit down.

[Baroness Howe of Idlicote]

My Lords, I very much support the noble Lord, Lord Addington, in his pursuance of the subject. He obviously is an expert and is quite right to pursue the area, one of growing need—and not just need, but growing complexity as we begin to understand the various subsections of need that there are in SEN.

SEN co-ordinators are a good new grouping, but there is an important role for school governors. I would like to see a member of the governing body take on a genuine responsibility in the area. That would be a practical way to deal with it, not least when we have a range of education provision with rather different requirements.

I hope that we will see rather more happening in the area, but we should not forget the importance of ensuring the early intervention that has already been mentioned, and on which there was an interesting question today during Questions. It indicated that the earlier you can get to grips with this, the better. There must also be areas of retraining for teachers—not just initial training, because it will take a long time for that to infiltrate right across the spectrum. With retraining, teachers can be made much more up to date in the current needs of this vital area.

--- Later in debate ---

The failure to inspect specialist support services for children with SEN sends a signal that their education matters less. That is not acceptable. A failure to act also leaves us stuck with a weak accountability framework that does little to address the poorer outcomes achieved by children with SEN, something that will cost us greatly in future years. The proposal that Ofsted simply studies this issue and reports back next spring is too weak and vague. Moreover, based on what the department has told Members in the other place, it will not deliver what my amendment would: much stronger accountability and scrutiny of local authority SEN support that is vital to children with SEN and their families. I hope that the Minister will reconsider and accept the amendment. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I am pleased to support the amendment of the noble Baroness, Lady Wilkins. The Bill is in my view somewhat weak in terms of accountability. This is surprising, given how much emphasis the Government put on strengthening accountability in other areas. Very recently, for example, in their response to the consultation on secondary school accountability, the Department for Education noted approvingly that:

“OECD evidence shows that a robust accountability framework is essential to improving pupils’ achievement”.

In the Government’s White Paper Open Public Services, it was stated that increased choice must be accompanied by a framework that ensures,

“providers meet basic quality requirements enforced by … inspectors”.

The White Paper went on to say that the Government would,

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

I am also rather concerned that local education authority SEN services are subject to so little scrutiny given the amount of government expenditure in this area. I understand that over £5,000 million is allocated to funding for children with high needs. Surely, there must be greater scrutiny of whether funding for local authority SEN provision is delivering value for money.

Separately, it can be argued that there is a particular case for inspections of services for children with low-incidence needs, such as sensory impairments. Local authorities and mainstream schools and teachers are far less likely to be familiar with the specific needs of children with sensory impairments. This lack of familiarity and expertise makes the role of local authority SEN provision much more important. The quality of this support is crucial, but apparently no one is checking the quality of this support. This is not really acceptable.

We should note, too, that this proposal has the support of professional bodies, including the National Sensory Impairment Partnership. Heads of services for children with sensory impairment have indicated that they would welcome greater scrutiny, because it allows them to demonstrate and emphasise the importance of their role.

I share the concerns raised by the noble Baroness, Lady Wilkins, that the commitment made in Committee that Ofsted be asked to carry out a review is insufficient, particularly if Ministers have already, apparently, ruled out inspection of local authority SEN provision. We have already had a one-off thematic review of support for deaf children, with the findings published in the Ofsted report, Communication is the Key. It looked at provision in three local authorities; it did not tell us much about the other 149 local authorities and, even in those three local authorities identified as having best practice, weaknesses were identified in their quality assurance and self-evaluation. For that reason, there is clearly real concern about what value or impact another broad, one-off thematic review will add. Instead, surely what is needed is the introduction of a robust inspection framework for all local authority SEN services.

I hope that the Minister, having listened to all this, has been persuaded by strong arguments in favour of the proposal.

[Lord Low of Dalston]

My Lords, I, too, give my full support to the amendment moved by the noble Baroness, Lady Wilkins. I shall make three points in support. The amendment is inspired by Sense, the RNIB and the National Deaf Children’s Society. As vice-president of the RNIB, I declare my interest in that connection.

Nowadays, the majority of school-age children with sensory impairments attend mainstream provision and often rely on support from specialist visiting teachers and services. Whether the support comes from outside or inside the school, the development of mainstream provision for children with sensory impairment is of sufficiently recent origin for it to be the case that many schools in which children with sensory disabilities and impairments are being educated are still unfamiliar with the methods of educating children who are blind, deaf, or deafblind, and with the special skills that they need, the communication methods that they use, and how to inculcate those skills. It is vitally important that there should be a system of inspection to assure us that services are of an adequate quality. At an early stage of this transition to mainstream, services are not yet of the quality that we want to see; it is in the nature of the case that you do not always get services of the quality that you want just at the beginning of a new development. But I want to argue that the existence of a system of inspection and accountability is absolutely vital to raising standards and avoiding bad practice just by default. The lack of scrutiny afforded to these services places these children at risk of poor provision, particularly as mainstream teachers and schools are still unlikely to be familiar with the specific needs of children with sensory impairments.

The second point that I would like to make is that, in other areas, the department has already recognised the importance of strengthened accountability. In its response to the responses received to the consultation on secondary school accountability, the department stated:

“The most effective education systems around the world are those that have high levels of autonomy along with clear and robust accountability”.

That is the kind of point that we were trying to make in relation to the local offer in the first debate this afternoon. We want there to be local autonomy, but we want also to be satisfied that that is not developing as a postcode lottery and that too many services are not falling below the mark. We need a system of clear and robust accountability alongside the notion of local autonomy.