Children and Families Bill

Baroness Howe of Idlicote Excerpts

Wednesday 29th January 2014 Lords Chamber

[Lord Storey (LD)]

My Lords, never again will a pupil with medical conditions be excluded from full or part-time education, school trips, physical education and extra-curricular activities because of their medical condition. I applaud the Government for the stance they have taken in this area, as do the voluntary and charitable sectors. This is light years from where we were before. This document, which is still for consultation—that will be an opportunity to feed in many of the issues—is one of the best things I have seen. It deals in detail with a whole host of issues. A few things are missing from that document, and I look forward to feeding them in during the consultation period.

The important thing for me, which is in the document, is that governing bodies will have the responsibility to ensure that the procedures are followed and that when a school is first notified that a pupil has a medical condition, action will follow. Governing bodies will also ensure that the policies cover the role of individual healthcare plans. I agree with the noble Lord, Lord Kennedy, on this—and I will be interested in the Minister’s reply—as I cannot envisage a situation where a child or young person who has a medical condition would not have a healthcare plan. I cannot get my head around that, as it seems obvious. This is not bureaucratic or about more clerical work, but just plain common sense. I hope that the Minister will respond to that point.

I like the point made in this document that supporting a child is not just the responsibility of the school but a partnership between professionals and the parents themselves. I also like that GPs will have responsibility for notifying schools when a child has a medical condition. That is important, and it has often not happened in the past. I will end by thanking the Minister for taking this important issue forward, and I look forward to his response on the issue of healthcare plans.

[Baroness Howe of Idlicote (CB)]

My Lords, I also put my name to this amendment, and I very much support everything that has been said so far on these issues. I congratulate the Government, and the noble Lord, Lord Nash, in particular, on having listened to what Peers and charities in the Health Conditions in Schools Alliance have said. They have done a great deal to work out a way forward. Again, I will not repeat the many things that have already been mentioned, which are now on the table to be worked out in detail, but the area that perhaps interests me more than any other is the role of governing bodies in ensuring that teachers in schools have the training and expertise that their staff require to cope with situations.

We all know that there is a shortage of qualified school nurses; we hope to hear from the Government how their number might be increased. It is not only that; an area that worries me concerns those with special needs that also involve mental health problems. Those students may well need guidance from an increased number of educational psychologists, among others.

We all want to hear from the Minister what plans the Government have to ensure that this partnership between so many organisations will be delivered to the benefit of children and families generally, so that they will feel—as they have not felt in the past—that they are being supported in the situations that they have to cope with and have always tried their best to cope with. However, they have felt very much that they did not get the help they deserved. I thank the Minister for what he has done so far and hope that he will be able to reassure us still further on some of the areas about which we have concern.

[Baroness Brinton (LD)]

My Lords, I, too, offer my thanks and congratulations to the Minister and the Government for the considerable progress made since Committee and for the frankly stunning indicative guidance. It is not yet out for consultation, but it is extremely helpful. Of course, the problem with providing your Lordships’ House with such prospective guidance is that we all have things that we think could better it. I will not repeat the points that noble Lords have already made, but will add briefly the two or three that I am concerned about.

I reiterate that the guidance must make it explicit that children with diagnosed health conditions are given an individual healthcare plan, even if there are no obvious actions, not least because medical and health conditions change and for a child at school suddenly to have to go through that process, when it was known about at the start, seems rather foolish. It will speed up the planning process and the school’s ability to monitor the child’s health if they are already on the radar of the school.

I particularly like the section in paragraph 39 on unacceptable practice. This is extremely helpful, but there is one glaring omission. Nowhere does it say that schools must take account of a doctor’s diagnosis rather than make their own. In Committee I mentioned a young man who was struggling with severe ME and chronic fatigue syndrome; but because the head did not believe that ME existed, he was given no rest times and was actually excluded because he was unable to take part in sport, which was deemed to be bad behaviour. Despite the fact that his hospital consultant had given the school formal advice, the head chose to ignore it. That is unacceptable bad practice and, in my view, it needs to be included.

That relates also to the ambiguity in the guidance about whether pupils with medical conditions should have individual healthcare plans. We must not have a get-out clause for schools. I hope that the Minister will be able to give reassurance on that point and others that my colleagues have made.

Finally, I give my particular thanks to the Minister and his team for meeting me to discuss my idea about access for teachers with frequently asked questions on a range of health conditions. This is now progressing: discussions are about to start with officials in the Department of Health. I know that the Health Conditions in Schools Alliance already has a date to discuss that and other things with the department in the very near future. When a school nurse is not around, this tool for teachers is going to be absolutely vital. It is not going to be technical and complex but will help to alleviate the fears that a teacher will have if a child suddenly moves into their class with a condition of which they have no experience at all, and if they want to understand both the learning and social implications of such a condition.

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[Baroness Walmsley (LD)]

My Lords, I support my noble friend Lady Brinton on this amendment and congratulate her on her determination and persistence in the interests of these severely bullied children. She has over the years managed to convince successive Education Ministers in your Lordships’ House that there is a need for something to be done for these children. So far, not an awful lot has been done, until very recently. What we need—and what we have, fortunately—is the expertise and skills of my noble friend the Minister. I am convinced that he is going to knock heads together and that something will happen.

Because of the late hour I will make just three brief points. Although all eight subsections of my noble friend’s proposed new clause are important, I think that three of them are particularly important. I draw noble Lords’ attention to the words at the end of the first subsection, which is about the Secretary of State,

“ensuring effective recovery programmes to counter the consequences of severe bullying”.

There are organisations that know how to do it—and these children should not and must not be lost children. They can be recovered, they are being recovered, by some wonderful organisations, but these organisations find it very difficult to get the money, as my noble friend has pointed out. Their expertise must be expanded on and cloned across the country to deal with these 16,000 children. I learnt just recently that, sadly, three of their centres have had to close because of lack of funding. That is a tragedy because of the good work that they can and should be doing.

In proposed new subsection (7) my noble friend says that she wants the school to have,

“a duty to find alternative provision that is suitable for the pupil or student and their needs”.

That does not mean a PRU. Very often that is where the bullies are, so that is certainly not suitable for these children’s needs.

Finally, I should like to echo my noble friend’s comments about Ofsted. We all know how very influential it is when Ofsted makes a point of inspecting something or asking about something. Unfortunately, what often happens is that when a child is on the school roll but does not attend, pressure is put on the parents to take them and give them home education even though the parent may not really be capable of doing it and would have to give up their job, which the family economy could not bear. We must try to stop that practice happening. If Ofsted is putting schools on the spot and saying, “This pupil has not been attending—what have you done about it? Where are they going? How are you making sure that the money follows them into appropriate provision”, then something will happen.

[Baroness Howe of Idlicote]

I support the amendment of the noble Baroness, Lady Brinton. She is a real expert in this area and it was important that she put this amendment down. I would like to stress one particular point—the role of the school in all of this. At one stage I came across a group of schools that had a very effective policy of dealing with this situation. Their method was to have a mentor for each pupil who entered the school, and the child who was mentoring got merit points for successfully introducing and making life smooth for the new student. I very much hope that we can do a little more to find out what group of schools that was—I regret to say that I have lost my details on it. It seems a very good example of best practice to sell right across the stage of all schools. As we know, it is not just a question of bullying in schools—there is bullying in all forms of life, including employment when you grow up as well.

I hope that the Minister will take all this very seriously. The role of school governors is important, and I should perhaps have mentioned earlier that I am president of the NGA. I think we have a meeting with school governors and the Minister shortly, and this is one of the items that it will be important to put on the agenda.

[Lord Storey]

I support my noble friend Lady Brinton on this excellent probing amendment, and will briefly take the opportunity to say that often the bully needs support as well. I have seen many occasions where that support has been given to the bully. Sometimes the bully, with the support of the parents, is referred and the problems are sorted. I say this with great caution but often, quite rightly, we put all our emphasis on the poor child or young person who is being bullied and we forget about the bully. Often with the bully, it is a cry or plea for help. As well as doing all the excellent things that my noble friend Lady Brinton is saying we should, we have to find and understand that need.

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[Baroness Lister of Burtersett]

My Lords, I rise partly to support my noble friend and the noble Lord, Lord Ramsbotham, but primarily to use the opportunity to thank the Minister for listening to what was said in Grand Committee and by the Joint Committee on Human Rights—up to a point. With regard to Amendment 59C, I fear that we are still talking past each other. The Joint Committee on Human Rights amendment, which I moved in Grand Committee, was not intended to provide an exhaustive definition of children’s rights, as the noble Lord suggested in his letter to my noble friends Lady Hughes and Lady Jones on 22 January. The purpose was to include the UNCRC rights explicitly in the statutory definition of children’s rights for the purposes of defining the Children’s Commissioner’s primary functions. But I do not wish to be churlish, and therefore I welcome this unexpected concession.

I also strongly welcome the publication before Report of the updated framework agreement between the Office of the Children’s Commissioner and the department, and even more because it incorporates the changes recommended by the JCHR and includes a clear statement of the commissioner’s independence. I welcome, too, the amendments designed to strengthen children’s participation.

I hope that the Minister will be able to go one step further, as asked for by my noble friend and the noble Lord, and strengthen the powers and independence of the Office of the Children’s Commissioner just that little bit more.

[Baroness Howe of Idlicote]

My Lords, I support Amendment 59A and I also strongly support Amendments 59B and 59F. I address this from the viewpoint of the children themselves. Children and young people care about the independence of the Children’s Commissioner and support the proposal to prevent any interference by government as set out in Amendment 59A.

In a briefing put together by young people in partnership with Save the Children, they say quite rightly that the commissioner is for them and that it is important that the Government listen to their views on the issue of independence. The young people understand the importance of the commissioner being free to do his job properly. In particular, they are worried about future Governments interfering in the commissioner’s work. Mohamed, aged 16, said:

“If the Commissioner’s full independence is not clearly set in stone then a new Government would be able to change its mind … If it’s not [written down in law] it could change in a few years-time. Even if the Children’s Commissioner has the freedom now to do what they think is right, there’s no guarantee it wouldn’t change”.

So young people are concerned that without this amendment, children may think that the commissioner is not a proper champion of their views and rights, and they may not put their trust in the commissioner.

Young people say that without a fully independent champion, children could grow up to feel disengaged from their community and local and national politics. Najib, aged 12, said:

“If the children’s commissioner isn’t completely independent then young people will feel like they don’t have a voice. When they grow up they may not have the confidence to speak out and join in as they’ve felt that no one has listened to them when they were growing up”.

I hope very much that the Minister will consider young people’s views on this issue and I very much support the proposal brought forward on this by the noble Baroness, Lady Massey.

[Lord Nash]

I thank the noble Baronesses, Lady Massey, Lady Lister and Lady Howe, and the noble Lord, Lord Ramsbotham, for their contributions. I will speak to the government amendments in more detail shortly, but I would first like to respond to Amendment 59A tabled by the noble Baroness, Lady Massey, and Amendments 59B and 59F tabled by the noble Lord, Lord Ramsbotham.

I am grateful to the noble Baroness for focusing our attention on the key issue of the independence of the Children’s Commissioner. As I stressed during the debate in Committee, in order for the Children’s Commissioner to have credibility with children and children’s organisations, and to meet international standards, we fully recognise that the commissioner needs to be—and be seen to be—acting independently from government. That is why we are removing a number of provisions in the existing legislation that call into question the commissioner’s independence, as recommended by John Dunford following his review. As a result, there is nothing in the legislation that allows the Government to determine what the commissioner’s priorities are, what activities he or she will undertake, or what timescales he or she will work to—these are all matters for the commissioner.

During the debates in Committee, both here and in the other place, the Minister for Children and Families and I provided reassurances on the process for appointing the commissioner, and on providing the commissioner with a sufficient budget. I am happy to repeat them again today. The Government fully recognise the need for the commissioner to be free from any political interference in carrying out his or her functions, and the arrangements in place to appoint the commissioner and provide him or her with a sufficient budget will ensure that this is the case.

I would like to reassure noble Lords that the commissioner’s appointment will be governed by the code of practice published by the Office of the Commissioner for Public Appointments, which ensures that such appointments are made on the basis of merit, following a fair and open recruitment process. This ensures that only those candidates judged by the OCPA recruitment panel to be “appointable” can be put forward for Ministers’ consideration. Further, we have given commitments that Parliament will be provided with an opportunity to comment on the job description and person specification before the post is advertised, and an opportunity to hold a pre-appointment hearing before the appointment is confirmed.

On the framework agreement, as requested by noble Lords in Committee, I have made available a draft of the revised framework agreement that sets out the relationship between the commissioner and the Department for Education. As noble Lords will note, the revised framework agreement includes clear statements about the commissioner’s independence from government.

Noble Lords will also note that, as requested by the Joint Committee on Human Rights, the draft framework agreement includes changes that mirror those made to the framework agreement between the Equality and Human Rights Commission and its sponsor department—changes that seek to ensure that the impact of public sector efficiency controls do not unreasonably constrain the commissioner’s independence.

I now turn to Amendment 59B, tabled by the noble Lord, Lord Ramsbotham, which seeks to add, “initiating and intervening in legal proceedings”, to the non-exhaustive list of activities that the commissioner may undertake in the exercise of his or her primary function, as set out in proposed new Section 2(3) of the Children Act 2004, inserted by Clause 86. During the debates in Committee, I said that initiating or intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function. The commissioner has intervened in legal proceedings on a number of occasions under the current legislation, and there is nothing in this Bill that changes that position.

As now, if the Office of the Children’s Commissioner wanted to bring legal proceedings, it would fall to the judge in the individual case to determine whether the commissioner had “sufficient interest” in the matter. However, the fact that the Children’s Commissioner will have a statutory role to promote and protect children’s rights, suggests that the commissioner would have a sufficient interest in any matter before the courts where children’s rights were involved. The question is not, therefore, whether it is possible for the commissioner to initiate or intervene in legal proceedings, but whether it is desirable to emphasise this aspect of the commissioner’s remit explicitly on the face of the Bill.

There are a number of reasons why I do not wish to do that. First, we have avoided adding to the list, in proposed new Section 2(3), of activities that are already implicit within the commissioner’s primary function. Secondly, while I agree that the commissioner should, in certain circumstances, be able to bring matters before the courts, I share John Dunford’s view that a decision by the Children’s Commissioner to initiate legal proceedings should not be taken lightly. We would expect any commissioner to use this power sparingly, given the range of functions and issues in which the commissioner is likely to take an interest, and in the light of his or her responsibility to make effective use of public funding.