Children and Families Bill

Baroness Hughes of Stretford Excerpts

Wednesday 6th November 2013 Grand Committee

[Lord Storey (LD)]

I will be quite brief; I do not have all my papers together. I feel that all of us in this Room realise the importance of this piece of legislation. We are looking to support the work that has been going on. The needs of children with special educational needs are not purely educational, or purely to do with health or social care; a combination of provision might be needed. For the first time, as it says on the label, parents will be supported by this legislation and will not have to go through a great difficult bureaucratic system. Their children will have a plan that will clearly spell out their needs. I say again how much I appreciate the revised code of practice, which is excellent and shows clearly the steps that need to be taken.

If a parent wants to appeal against the fact that they have not succeeded in gaining a plan, or if there are aspects of the plan that they are not happy about, we should make it as easy as possible. As it says, this legislation concerns children and families; it is family-friendly and children-friendly. The notion that parents and the child or young person then have to go through a labyrinthine method to resolve issues seems to go against the grain of what we are trying to achieve. As the document says, we are supporting parents all the way through. When there is an appeal, the code of conduct rightly refers to arbitration and how it can be resolved. However, if you then have to take your “complaint” somewhere, you do not want to have to go to three different bodies. You want to be able to take it to one person or one body who can sort it out for you one way or another. That seems to be in the whole spirit of this legislation.

Without pre-empting what the Minister will say, I guess that he will point out that we are talking about very different animals here. Health people are very different from education people and local authorities. I understand that, and that it might cause problems in trying to have that single point of appeal. My preference is to have a single point of appeal so that parents know where they are going and for it to be included in the code of conduct. If that is not possible, is there any way for parents to be supported and guided through the difficult processes? We are all interested in the well-being of the parent and the child or young person. I beg to move.

[Baroness Hughes of Stretford (Lab)]

My Lords, I support Amendment 181, moved by the noble Lord, Lord Storey, to which I have added my name. I shall also speak to Amendments 182 and 272. To some extent, we are rehearsing today, in these amendments, some of the arguments that we had earlier this week about social care. They concern the fundamental question of how serious the Government are about instigating a new system that is integrated right through from the point of early identification, assessment, provision and appeal.

As the Bill stands, we have integrated assessment, at least in the EHC plans, but we do not have equal accountability in terms of integration of provision because of the social care situation. Here we do not have integration from the very important perspective of parents’ and children’s experience in relation to appeals. Therefore, I strongly support Amendment 181, which would add social care and healthcare provision specified in EHC plans to the First-tier Tribunal as a mechanism of appeal. I would be grateful if, in his reply, the Minister would go beyond what he has already said to us, which is that there are established routes of complaint about social care through local authority complaints procedures and the Local Government Ombudsman, and clear and specific routes of redress within the NHS, its complaints processes and the health ombudsman.

Anybody who has tried to help a family to negotiate those two avenues of appeal will know how complicated they are. In addition, it is very important that, in relation to the substance of the complaint—as opposed to maladministration—they do not end up with an independent adjudication between the views of the complainant and the views of the service provider. The parents in this case would have to, for example, fully exhaust the local authority’s own complaints procedures as a first step; that could take many months. Of course, that adjudication is not independent; it is the local authority adjudicating on the complaint. They can then go to the Local Government Ombudsman, but that person will adjudicate only on the principle of maladministration—that is, on whether the authority has not followed the proper procedure. He will obviously not adjudicate on the substance of the complaint. It is a similar situation in relation to health.

Therefore, if the parent has to negotiate those two systems, it can take a very long time. Many noble Lords will have had a number of pieces of correspondence from Jane Raca, who is a lawyer and author and has a 13 year-old, very disabled son. She outlines the detail of the Local Government Ombudsman procedure and shows that it takes months and sometimes years. I know from my previous constituency experience that that is the case and, furthermore, it does not actually judge independently on the substance of the complaint.

The other important point is the one made by the noble Lord, Lord Storey, that—by their nature, and this is very welcome—EHC plans are meant to integrate an assessment around social care, health and special educational needs. A severely disabled child is likely to have needs in all three categories, so a parent might have concerns or complaints about all three categories of need. Under the current arrangements, as the noble Lord, Lord Storey, said very clearly, they would be faced with the almost impossible task of appealing through three different systems at once, at the same time as coping with a very disabled child and probably other children in the family. That is just not reasonable. If we came at this through the vision of the parent contemplating that system, it would look impossible. It would defeat many of us, let alone parents coping with very disabled children. Therefore, I really hope that the Minister will take this on board and see this very important and welcome principle of integration right the way through from assessment to appeal.

Our Amendment 182 would oblige the Secretary of State to publish information about special educational needs cases going to the tribunal. We feel it is important to bring much needed transparency into the system and put an end to practices by some, though not all, local authorities, such as systematically taking cases to court, keeping the cost down in the knowledge that many families will not challenge a decision or spend any money on legal fees, in order to avoid having to pay for the provision in the first place—taking the step early of going to appeal, rather than trying to get a local resolution. Whatever the Government decide, it is important that we regularly review which kind of cases are going to the tribunal and their outcomes, and that we have this information published regularly.

Amendment 272 simply ensures that the detail of, and any change to, the provisions in Clause 51(4)—that is, the regulations laid to provide for appeals to the First-tier Tribunal—will be subject to an affirmative resolution procedure through statutory instrument. It is right that Parliament should be able to comment on the proposals for appeals that the Government put forward.

[Lord Low of Dalston (CB)]

My Lords, I support the amendment of the noble Lord, Lord Storey, to which the noble Baroness, Lady Hughes, has also just spoken. The general point must be right: there has to be a unified route of appeal. There is no way that parents can be expected to endure the hassle and aggravation of pursuing three separate appeals or complaints if they are not satisfied with the provision that they are receiving.

This would simply be to answer the bureaucratic hassle identified in the Green Paper and the Lamb inquiry as driving parents to distraction by adding yet more layers of bureaucracy. I assume that the Government have just been defeated by their own bureaucracy in delivering a unified route of appeal; maybe this will give them some insight into how parents feel. To that, I simply say that they need to go away and try a bit harder.

I mainly want to pursue a more detailed point. It is clear that the parent can appeal to the Special Educational Needs and Disability Tribunal, or SENDIST, about the educational provision. As for health, the local authority must include in the EHC plan, health provision reasonably required by the learning difficulty or disability that causes the special educational needs, and health commissioners must secure that provision. However, it appears that the health commissioner has a veto. The draft regulations say that the health commissioner must agree the health provision. This raises the question: what recourse has the parent if the local authority does not include the health provision in the plan or the health commissioner does not agree it?

If the health provision is directly related to and supports the educational provision—for example, speech and language therapy delivered at school—the parent can appeal to SENDIST. However, if it is purely health provision—for example, if it is delivered at home—what opportunity does a parent have? I ask the Minister: what opportunities do parents have to challenge its non-provision or non-inclusion in the plan? The Government may answer by referring to the NHS complaints procedure but, quite apart from the point that this involves the parent pursuing a second and separate challenge, I am not sure that a complaints procedure is really the most effective way of enforcing the provision of something to which they feel they are entitled.

Similar arguments might presumably be made in relation to social care provision, except that in that case the complaint would be a separate one against the local authority. I would be most grateful if the Minister could respond to these points when he comes to reply.

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[Lord Low of Dalston]

My Lords, I rise to move Amendment 206 and shall speak also to Amendments 207 to 209. I will do these two things separately as Amendment 206 deals with one issue and Amendments 207 to 209 deal together with a somewhat separate but interrelated set of issues. I hope that I will be able to do both fairly briefly.

Turning first to Amendment 206, it would require that a plain English version of the code of practice should be made available. Much of the detail of the reforms contained in this Bill will be enshrined in the code of practice. Indeed, the code of practice will be the Bible, both for providers and users of the system. I recall an experience I had when I was one of the founder members of the Special Educational Needs Tribunal back in 1994. We attended a training session and somebody came along to brief us on the old code of practice. She said, “Well, I expect that you would like me to tell you what are the most important parts of this code of practice that you need to be most familiar with. What I am here to tell you is that you need to be fully familiar with it all”, so it is obviously a crucial document. The new code of practice will be the same as the old one in that respect. It was—and the new one will be—a crucial document, and I am sure that we are all most grateful to the Government for making the latest draft available in time for the Committee. That shows just what a crucial document it is.

It is also a very lengthy document—more than 170 pages—and although it will no doubt be subject to change over time, it will remain quite a complex document, so it is incumbent on us to ensure that the document is made as accessible as possible to young people and their families. A version of the code that provided clarity about a person’s rights and choices, made readily accessible in plain English, would be extremely valuable. As the Plain English Campaign has stated:

“The law is the most important example of how words affect people’s lives. If we cannot understand our rights, we have no rights”.

There are precedents for the use of plain English versions, for example, in relation to the Localism Act, so I hope that the Minister will agree to this amendment to ensure that families do not have to grapple with an impenetrable document and get the information that they need made easily accessible to them

Turning to Amendments 206 to 209, at first sight, the Government, with their Amendments 210 and 211, have gone a long way to meeting what these amendments were asking for. Indeed, I readily acknowledge that the Government’s amendments are very helpful, but they do not take us all the way. In two respects they do not take us all the way. Amendment 207 specifies a 90-day consultation period, which I think is perhaps more in accord with usual practice. The Government’s Amendments 210 and 211 seem, at first sight, to concede all that the amendments are asking for in terms of the code needing to be approved by the affirmative procedure in both Houses of Parliament. The wording of these amendments is a bit opaque but, when you unravel it, it becomes clear that the affirmative procedure is being conceded in relation to the first iteration of the new code, but not in relation to subsequent iterations which are simply subject to the negative procedure. The Delegated Powers and Regulatory Reform Committee pointed this out in its report last week, I think, and said that if the Government are conceding the affirmative procedure in relation to the first iteration of the code of practice, they are effectively conceding that any subsequent iteration of the code needs the affirmative procedure.

I therefore think we will want to continue to push Amendments 207 to 209. While expressing gratitude to the Government for the distance that they have moved with their Amendments 210 and 211, I express a little disappointment that they have not moved all the way and, indeed, made the further concession that the Delegated Powers and Regulatory Reform Committee has suggested is essentially implied by their concession of the affirmative procedure for the first iteration of the code of practice. I beg to move.

[Baroness Hughes of Stretford]

My Lords, I support Amendments 207, 208 and 209, to which I have added my name. I think we are all very clear that the code of practice is a very important document, as the noble Lord, Lord Low, has just said. It will determine the detail of implementation of the Government’s legislation in a very marked respect. Therefore, the mechanism by which the code is approved, and then subsequently revised, is also very important.

We have been round the houses somewhat with the mechanism of approval. There was a great deal of pressure from the Delegated Powers and Regulatory Reform Committee in response to the Government’s initial proposals that the code of practice, even in its first iteration, should be subject to the negative resolution procedure. As the noble Lord, Lord Low, has just said, the Government have conceded that the first iteration should be subject to the affirmative procedure. That is very welcome. However, as he also said, the most recent report from the DPRR Committee said that although that is welcome,

“there is nothing in the Government’s response to suggest that revisions to the code will necessarily be of any less significance or importance so as to warrant a lower level of scrutiny. Accordingly, we remain of the view that the case has not been made for applying the draft negative procedure, and for this reason we consider the draft affirmative procedure should also apply where the code is being revised”.

That is what Amendment 209 would achieve.

I will just briefly mention Amendments 207 and 208, because they also deal with some aspects of the Bill that are not being redrafted by government Amendments 210 and 211. Clause 68(2), in particular, says that, in putting forward the code or any revisions:

“The Secretary of State must consult such persons as the Secretary of State thinks fit”.

We think that it should not be the decision of the Secretary of State as to who he or she consults about the code but that there should be a public consultation lasting 90 days, which is what Amendment 207 in particular would also achieve.

[Baroness Sharp of Guildford]

My Lords, my name is attached to Amendments 206, 207 and 208 and I will just say a few words about both sets of amendments. In relation to Amendment 206, the current draft code of practice is actually written in fairly good, plain English, as far as I am concerned, and is relatively understandable. I commend those who put it together because it is a very good document and meets many of the comments that I know were made at an earlier stage. It is still subject to consultation and obviously there is still room for improvement.

In relation to Amendments 207 and 208, I will just endorse the words of the noble Baroness, Lady Hughes. Rather than there just being consultation with those whom the Secretary of State thinks appropriate, the code should be publicly available for consultation. That is something on which we would all put a lot of emphasis.

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[The Countess of Mar]

My Lords, I will just follow up on the comments from the noble Baroness, Lady Walmsley. This is when online and blended education can come in very useful, because it is not expensive, compared with person-to-person education. I hope the Minister will consider it.

[Baroness Hughes of Stretford]

My Lords, I will briefly add to the comments in support of Amendments 213 and 214 and speak to my and my noble friend Lady Jones’s intention to oppose Clause 70 standing part.

Young people who have previously had a statement are very overrepresented in the youth justice system, making up about 18% of young offenders. About 80% of those in young offender institutions have literacy problems or dyslexia to some degree. According to the Communication Trust, around 60% have communication needs. There is a very high level of need concentrated in this population of young people. We would all agree that those are shocking statistics and that clearly, in one way or another, many of these young people have been failed up to the point in their lives when they end up in the youth justice system.

I have some sympathy with the prison system, because it has, as I say, a very high concentration of need. However, in my experience, it also the case that despite some very dedicated individuals—and there are some in the prison system—the system as a whole has never done enough to address the special needs of young people in custody. Under the system that we have at the moment, the local authorities in general—we have heard that many young people in custody have also been through the care system—and the services available in the home communities from which these young people have come, and to which most of them inevitably will return, are also let off the hook while those young people are in custody.

Successive Governments have tried to get this right, and have made some progress, but nowhere near enough. It seems that the Government are now proposing significant changes, which many of us have welcomed, in the Bill in respect of special educational need provision in the community. Surely, therefore, this is an opportunity to grasp the nettle and make that change for young people currently in custody, so that we have some real consistency across the piece for young people with special needs.

Finally, the Minister said in the annexe to his letter to noble Lords that applying these provisions to young people in custody would cause SEN legislation to come,

“into conflict with existing, comprehensive statutory provisions governing how education and support for children and young people is delivered in custody”.

In slight contradiction to that first point, he added that, in any case, the Ministry of Justice and the Department for Education are now working closely together for changes in the system to improve the provision in respect of special educational needs. Why have a different set of changes? Would these changes not make more sense? That is not least because, as I say, they would tie in the local authorities and the schools from which young people are coming, and to which they are returning, and not simply leave this as a Prison Service issue.

[Baroness Howe of Idlicote]

My Lords, I very much support all that has been said on this amendment about detained children. I believe that the Government have a number of plans that will be quite valuable as the forward march to a much better system for young people is in progress. Above all, if you just have one single test the moment that a young person comes into custody, to find out whether that child had any problems, and started from that point, you would not waste the time that has been wasted for so many years. I very much support this amendment.