Children and Families Bill

Baroness Hughes of Stretford Excerpts

Tuesday 17th December 2013 Lords Chamber

[Baroness Deech (CB)]

My Lords, I will speak briefly in support of the noble and learned Baroness, Lady Butler-Sloss, who knows more about children’s law than practically anyone in this House. There is one real problem after divorce, which is that fathers, for whom the door is open, do not come and visit their children. We cannot do anything much about that. The clause may give such absent fathers the notion that they have rights but no responsibilities. If there is one thing that our family courts have got right in recent years, it is the welfare of the child. I very much hope that the House will listen to the wisdom of the noble and learned Baroness, Lady Butler-Sloss, and will let the courts get on with the good job that they have been doing without resorting to a rather artificial notion as set out in the clause as it stands.

[Baroness Hughes of Stretford (Lab)]

My Lords, I, too, support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, to which I have added my name. We had a very good debate in Committee on Clause 11 about the status of the presumption that is enshrined in that clause. Concerns about preserving the overriding status of the presumption of the best interests of the child in the Children Act have been largely assuaged.

By definition it is very difficult for both parents and children when a family breaks up, and as the noble Baroness, Lady Howarth, has underlined, things can get very heated and parents can get very focused on coming out of that conflict with what they regard as the best arrangements for them.

As I made clear in Committee, I start from the position of sharing the Government’s desire to enshrine in public policy the principle of joint parental involvement in a child’s life, including after separation. I argue that for most children, the paramount principle of the child’s welfare, as enshrined in the Children Act 1989, cannot be fully met unless both parents are fully involved in the child’s life and have a continuing relationship with the child. Perhaps slightly differently to the noble Baroness, Lady Deech, I think that there is an issue to be addressed here, particularly for fathers. I agree with the Government that the principle of parental involvement needs strengthening.

However, if we agree—as I think we all do—that the paramount consideration is the welfare of the child, and that this principle should not be jeopardised or diluted, then we must also ensure that the presumption in Clause 11 is not misinterpreted and applied in ways that can be detrimental to children. Specifically, Clause 11 must not send the signal that parental involvement, which regrettably the Government initially called “shared parental responsibility”, is taken to mean that the child is divided according to some a priori formula, whether that is 50-50 or something else. Clause 11 gives a right to the child to expect continued meaningful involvement by both parents after separation. It must not be interpreted as giving a right to both parents for equal—or near equal as possible—time with the child. I know that the Government’s Explanatory Notes make clear their intentions. But there are a number of reasons why the Minister must take seriously the possibility, indeed the likelihood, of such misinterpretation.

First, the experience in Australia is that 65% of fathers interpreted “shared parental responsibility” to mean equal time. Litigation between parents increased as a result, and they had to change the system. Secondly, as touched on by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth: the clause, unless it is qualified on the face of the Bill in the way that this amendment seeks, could inadvertently increase the risk of harm to children, because only 10% of separating couples resort to the courts to resolve their contact disputes, with the majority of parents reaching agreements privately. There is concern that if it is the expectation of those parents that the law now says that the child’s time has to be carved up, then some parents may seek to use the new changes as a bargaining tool and put pressure on the other parent into making contact arrangements which are not in the best interests of the child.

Again, evidence from Australia suggests that similar reforms resulted in an increased reluctance for mothers to disclose abuse, for example, with many feeling that if there is a legal presumption of shared contact, there was little point in disclosing problems in the family. Given that the vast majority of cases do not go to court, if as a result of Clause 11 there is a common perception that having the child’s time shared out will be the norm in future, then even in families where there is no abuse or there are not problems we may still see the unintended consequence of nomadic arrangements, with a child moving between homes in a way that we would all want to avoid for obvious reasons. This would not be in the interests of most children.

Finally, and very significantly, we have to respond strongly to those parts of the media, which have promoted the interpretation which we are discussing now, despite the best efforts of the Government. I do not believe that any amount of communication or clarification can shift this now. This is why Amendment 14 is so necessary—the Government’s intention and interpretation would be quite clearly on the face of the Bill, and enshrined not in guidance but in law.

Last night we received a policy statement from the Government about Clause 11 and Amendment 14. This makes clear the Government’s intention—it is not to promote a particular division of time, but they feel that the most effective way of dealing with this is through a wider communication strategy to explain to parents what the interpretation is. This is wholly inadequate, for the reason I have just expressed; this view is already well entrenched, partly because of the initial nomenclature of shared parental responsibility and partly because parts of the media have triumphantly proclaimed that this means an equal proportion of the child’s time is to be spent with father and mother. That view is now so well entrenched that I am very concerned about the impact on expectations and, therefore, on negotiations between parents, particularly those not going to court. The most emphatic and unambiguous way of disabusing people of that false impression is to put the amendment alongside Clause 11 into the Bill. The Government will then have something in law that they can go to town about in communications, explaining Amendment 14 if it became part of the Bill.

[Baroness Walmsley (LD)]

My Lords, I believe that there is only one a priori formula, as the noble Baroness puts it, that we should have in our mind today, and that is the UN Convention on the Rights of the Child, which gives children the right to be safe and protected and the right to a family life. We all agree that that right to a family life, where it is in the child’s best interests and safe to do so, should include an ongoing relationship with both parents. Unfortunately, in many cases the parents themselves feel that they cannot continue to do that within the same home, so they separate. I believe that it is the Government’s intention in this clause to give the child that right back and ensure that the child continues to have a relationship with both parents where it is safe to do so and in the child’s best interests.

Governments make their intentions clear in more than one way. The wording of legislation is one thing, but Pepper v Hart is another. I am hoping that, in his reply, my noble friend the Minister will make it very clear that what the media have been saying is not the Government’s intention. Indeed, my noble friend has made that very clear to probably all of us in this Chamber now in private meetings, but of course it has to go on the record for people to be able to rely on it, and I am very much hoping that he will be able to do that.

The noble Baroness, Lady Hughes, mentioned the media. I call on the media—indeed, I challenge them—to give just as much space and just as large headlines after today’s debate to the Government’s real intentions on what this legislation and any surrounding regulations really mean, rather than what they mistakenly thought that they meant, which caused an awful lot of concern and worry to families who can really do without that sort of worry when they are going through the stress of breaking up and wondering what they can do to cause the least possible damage to their children’s lives while they do so. I very much look forward to my noble friend’s reply.

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[Lord Elystan-Morgan]

I certainly had not intended to take part in this debate, which has been at a very exalted level. However, the speech from the noble and learned Lord, Lord Hope, reminded me of another point that has not been touched upon. If one reads the amendment as it is worded, one has the impression that the test should very probably be on the balance of probability. The noble and learned Lord, Lord Hope, referred to the judgment by Lord Nicholls in Re H 18 years ago. The judgment as I remember it, and correct me if I am wrong, was to this effect: normally the test will be on a balance of probability—less or more likely. However—I believe that these were his words—the more serious the accusation, the more cogent must be the evidence to establish that accusation. If I am right about that, and I believe that I am, it means that this amendment would undermine that principle in Re H completely.

[Baroness Hughes of Stretford]

My Lords, this has been a very long debate and I do not intend to extend it much longer, but I want to join the noble Baroness, Lady Howarth, as another non-lawyer in redressing the balance slightly. I have listened very carefully to all the excellent contributions. I say at the outset to the Minister that this situation presents a challenge to the Government and I hope that they will rise to it constructively; I am sure that he will try to do so.

We have heard from people across the House today, all of whom are very experienced in one way or another and absolutely committed to the welfare of children, yet this is a highly contested issue with at least three separate points of view being expressed during the course of today’s debate: those who think that there is an issue to be addressed and that the amendment from the noble and learned Lord, Lord Lloyd, attempts to address it; those who do not believe that there is an issue to be addressed; and those who believe that there may be an issue but this amendment is not the way to do it. I think there is an issue but, although we will wait to see how the noble and learned Lord sums up, I do not think it is one that the House could resolve by amendment to this Bill. However, I hope that the Minister, having heard the debate tonight, will be prepared to examine it further before Third Reading and come back with some proposal to try to reach a resolution.

It is clear from the debate that there has been a change in the way in which courts, rather than social workers, can apply the Children Act. That change was as a result of the intervention of the noble and learned Baroness, Lady Hale. In those situations where a child is living with someone who is a possible perpetrator of proven abuse to another child, whereas previously the court could have said, “That’s enough, that’s the threshold; we will now consider the welfare issues”, the noble and learned Baroness has said, “No, that is not enough”. Now the court cannot even consider the welfare issues to the child in the round. That is the crucial change.

I will not go through the arguments that have been put forward, but I shall just make one or two comments. The noble and learned Baroness, Lady Butler-Sloss, for whom I have the most enormous respect, said that there ought not to be the possibility of court intervention on the basis of suspicion. Normally that would be right, but the problem in this case is that it is not just suspicion; there is a proven fact of harm or death to a previous child by one or other, or more, of the parties. The difficulty is that we do not know which one.

The noble and learned Lord, Lord Walker, said that it is a terrible thing if a child is removed from its home on unfounded evidence. Yes, it is, but it is also a terrible thing if we learn only with hindsight that that child was actually living with someone who was the perpetrator and who was a danger to that child and injured or killed that child. Those are the very difficult judgments. I feel that, faced with that very difficult situation, I would be more comfortable—I am entirely with the noble and learned Lord, Lord Judge, on this—if a court were considering those issues rather than it having to say, “No, we can’t look at it, because we’re not allowed to any longer because the threshold can’t be met and that is the current ruling”. That is a great concern. As I say, I hope that the Minister will rise to the fact that we have a hotly contested issue on a very serious matter on which people whom we respect across the piece have come to different judgments. This needs to be resolved, and I hope that the Minister will set out a pathway by which that can be achieved.

[Lord McNally]

My Lords, I will certainly try to rise to the challenge. It would be a lot easier to rise to if the Titans who have clashed today had come to anything like a conclusive agreement about how it should be met. I have never been one to think that Parliament should never challenge the views of our courts, or vice versa. I have said before that I think a little friction between the two is sometimes quite useful. On the other hand, we have a separation of powers where we entrust our learned judges with making wise decisions.

I am therefore a little tremulous about suggesting that we accept an amendment that, if the noble and learned Lord, Lord Walker, is to be believed, and I am sure he is, flies in the face of six separate judgments by either the House of Lords in the old days or the Supreme Court. We have to think very hard before we pass an amendment that would challenge those judgments. If the case that has cast the matter into doubt was an artificial case aimed at clarifying the law—I have to say that the words you usually use are, “With the utmost respect”—it did not work.

I cannot make commitments to the noble Baroness, Lady Hughes, that we can solve this between now and Third Reading. Of course I shall take back the debate that we have had and the considerable arguments that have been made. It would be impertinent of me to try to encapsulate those; those who have been in the debate have heard cogent arguments on both sides.

All of us, whether we have had these responsibilities or are just ordinary citizens, know that when these things go wrong and a child is murdered, the media pack descends on, usually, a social worker and the consequences are extremely grave. On the other hand, as we also know, voices are raised saying that we are too casual in our willingness to take children into care. Accusations have been made at the other end of the corridor that local authorities can be cavalier. I fully take the point made by the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Hope, that if you are going to take a child from its family you must have proof as well as suspicion.

These are very weighty matters. I put it to—I was going to say “my noble friend” but he is more like the constant thorn in my side—the noble and learned Lord, Lord Lloyd, that today would not be the day to test the opinion of the House. If he were to do so, I would ask the House, in all sense of responsibility, to vote against him.

The Government believe that Section 31 is robust enough. The point was made that it is not a threshold for social workers to make child protection interventions. That has been made very clear. The rarity of the case was dismissed. The noble and learned Baroness, Lady Hale, rightly said that so artificial a case on such a single issue is the rarity. That is where some of the confusion has arisen.

We have had some very strong arguments. In the light of the very full debate held in Committee, we have discussed this further with the chief social worker, the Association of Directors of Children’s Services and the College of Social Work, and they have all confirmed that they do not support this amendment.

If the noble and learned Lord, Lord Lloyd, does not press the amendment, I do not want to inflict another debate like this on the House at Third Reading. I do not think it would do a service to the House or be the way to make a very important law. This will have to stand for a very long time. If there are initiatives or suggestions that can get some unanimity across the Chamber—and, perhaps even more helpfully, on the Cross Benches—there may still be some time for movement, but as it stands now, and in the light of the advice that the noble and learned Lord, Lord Walker, gave us in a considered and thoughtful speech that Section 31 has stood the test of time and has been examined six times during that period, it would be impetuous of this House to back the amendment moved by the noble and learned Lord, Lord Lloyd, this evening. If he wishes to press it, I will urge the House, with the proper sense of responsibility, to reject it.

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[Baroness Hughes of Stretford]

My Lords, I shall briefly, but strongly, support both amendments. On Amendment 34A, the noble Baroness, Lady Howe, has fully explained her concerns, which I share, about the possible consequences of allowing specialist SEN academies to admit children without an ECH plan. That seems to run counter to the principle of inclusion and it also seems dangerous to admit children without that comprehensive assessment of their specific needs. I hope that the Minister will respond positively to that point.

When the noble Lord, Lord Low, moved Amendment 16A in Committee, he rightly said that although the code of practice had improved guidance on inclusion, in the Bill as it stands, inclusion is not referred to anywhere. Given the commitment of the Government and of noble Lords across this House to increase access to mainstream schools and to act in accordance with the recommendations of the JCHR, it seems very odd that this overarching principle is not enshrined in the legislation.

The purpose of the amendment is to insert that general principle alongside other general principles that are included in the Bill. As the noble Baroness, Lady Warnock, has said, this is not about pushing inclusion above everything else; it is about parental choice. At the moment, because local authorities and schools have not moved far enough towards making mainstream schools accessible to disabled children, many children are denied that choice.

Clause 19 sets out other key principles to which local authorities must have regard in fulfilling their obligations under Part 3: the wishes and feelings of children and their parents; the importance of child and family participation in decisions; providing adequate information; and supporting the child’s development and educational progress. Those are all very important. But equally important, I would argue, is the principle that local authorities should seek to maximise the opportunities for inclusion.

As the noble Lord, Lord Low, told us, when the Minister was arguing against the amendment in Committee, he said that the Bill maintained the general principle of inclusion in a number of other provisions and went on to list some of them. He also said that schools and colleges had important duties under the Equality Act and he told us about other measures that the Government were adopting to help mainstream schools improve their ability to include disabled children more effectively. However, he did not tell us why the Government would not accept this amendment alongside the other general principles that appear on the face of the Bill. If the Minister is not minded to accept the amendment today, I hope that he will not rehearse that information as we have already heard it and it is on the record. What we really want to know is why he will not accept the general principle of inclusion sitting alongside the other principles in Clause 19. That would send a strong signal to all educational settings, and to local authorities, that they must up their game and move closer and faster to being able to offer places to disabled children. That would catalyse a very positive and marked shift. I hope that the Minister will accept the amendment today.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash)]

I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Warnock and Lady Wilkins, for tabling Amendment 16A, and the noble Baroness, Lady Howe, for tabling Amendment 34A. I had an extremely helpful meeting with the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, recently, and I am grateful to them for helping me to understand these issues. As noble Lords know, they are, of course, immensely knowledgeable on this matter. They have spoken eloquently about an issue that I know is important to many in this House—inclusive provision for children and young people who have SEN or are disabled. We have had an informed and passionate debate.

Amendment 16A picks up a recommendation from the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, a member of the committee, mentioned. The Joint Committee welcomed the Bill as containing,

“a number of provisions which … enhance the UK’s implementation of some of the relevant rights of children and young people”.

Those include the general principles in Clause 19; the extension of education, health and care plans to young people up to 25; the requirement for academies to be covered directly by the statutory framework for SEN; the duty to provide SEN information to children and young people; the measures to ease transition from children’s to adult services; the explicit reference to assist in preparation for independent living in a local offer; and the provision of direct rights of appeal for young people and the proposed piloting of children’s rights of appeal. However, the Joint Committee felt that including a principle on inclusive provision in Clause 19 would demonstrate the Government’s commitment, under the UN Convention on the Rights of Persons with Disabilities, to the progressive realisation of the right to inclusive education.

I make it clear at the outset that the Government are fulfilling their commitments under the UN convention. The Bill maintains the general principle of inclusion and does so through some of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need and holds a presumption for inclusion in relation to choice of schools and colleges through Clause 33. However, it also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges. That is entirely consistent with the reservation and interpretative declaration that the Government made to Article 24 of the UN convention recognising special schools as part of the general schools system.

Beyond the Bill, as we have discussed in previous debates, local authorities, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to increase access over time and to make reasonable adjustments to their policies and practices. Indeed, it was this Government, in 2012, who included schools in the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty under the Equality Act. I made a commitment in Grand Committee to look at the scope for improving the links to the Equality Act duties in the SEN code of practice and I am happy to reaffirm that commitment now.

We have previously discussed the inclusive schooling guidance. One of the striking findings in the responses to the Green Paper Support and Aspiration was that nearly half of those who responded to a question about the guidance did not know that it existed. That is why we put the key elements of it into the code of practice. I am happy to consider how the code of practice can be further improved in that regard. In view of all that, we do not believe that it is necessary to add to the principles in Clause 19 to fulfil our commitments under the UN convention. The principles in Clause 19 are designed to underpin the key features of the reforms, placing the views, wishes and feelings of children, young people and parents at the heart of the system and placing a focus on improving outcomes. They apply irrespective of where children and young people are educated.

We have heard in other debates about the important role that specialist provision plays in supporting disabled children and young people and those with SEN. The noble Lord, Lord Low, referred to the importance to parents of having that choice. Amendment 16A could run the risk of being perceived as a threat to specialist provision and as encouragement to local authorities not to place children and young people in specialist provision where that is appropriate for meeting their needs and where parents wish it, and could threaten the viability of high-quality provision for children and young people with SEN. I know that that is not in any way the purpose of the amendment, but it is an example of the kind of balance of arguments that we have to weigh.

The Government take very seriously their commitment to the convention. In addition to the provisions in the Bill and the government amendments on disabled children and young people that we will be debating later, we have taken a number of practical steps to build the capacity of mainstream schools and colleges to support children and young people who have SEN or are disabled. I spoke about these in Grand Committee. The noble Lord, Lord Low, referred to them as “soft measures”, but I would not describe them as such. They are certainly extensive. I will not go through them in detail, because I know that noble Lords have heard this before. However, we have invested considerable sums of money in training: there are over 10,000 new SEN co-ordinators, a number of schemes to develop the training of SEN, we have made grants to the Institute of Education, and we are involved in many other projects.

Chapter 6 of the draft SEN code of practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need additional support and provide that support as quickly as possible. We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and we recognise the key role played by the SEN co-ordinator in this and in other ways. In addition, as noble Lords know, the Bill now includes a new clause on supporting children with health conditions. Noble Lords will see that a number of government amendments have now been tabled to include disabled children and young people with SEN in the scope of a number of key provisions in the Bill. I will speak about those amendments shortly.

On Amendment 34A, tabled by the noble Baroness, Lady Howe, I understand her concerns and those of other noble Lords about the provisions in Clause 34(9), but I hope to reassure them. Clause 34(9) would enable a child or young person with special educational needs but without an EHC plan to be admitted to an individual special academy or special post-16 academy whose academy arrangements permit this. The admission of children or young people without EHC plans to special academies or special post-16 academies would be limited to those academies where the Secretary of State for Education had specifically agreed to permit that in the funding agreement in relation to specific types of children.

I reiterate what I said when we debated this issue in Committee. This is not a blanket policy and it is also definitely not part of any dark plan. On the contrary, the Government’s intention is to facilitate innovative new approaches and provision for the benefit of children and young people with SEN. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy and would consider its educational merits and viability. Indeed, we have approved 16 free special schools. All are able, as things stand, to apply to the Secretary of State to have the competence within their funding agreements to admit non-statemented pupils. That is the status quo. Only one has so applied. They were approved to admit, on a temporary basis only, children with autistic spectrum disorder or with specific communication and language difficulties, but as far as we know none has been so admitted.

Concerns have been expressed by the noble Lord, Lord Low, the noble Baroness, Lady Howe, and others that children and young people might be forced into special provision and parents coerced by local authorities into placing their children in special schools. We will ensure safeguards against that are in place. First, the relevant academy’s funding agreement must stipulate that the special academy or special post-16 academy could admit only children or young people without plans who had a particular type of SEN set out in the agreement. Changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority and by parents, and a lack of demand for statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the academy only if their parents or the young person had applied to go to it. Thirdly, the child or young person should have those particular needs and their admission should be supported by a relevant professional opinion, such as that of an educational psychologist. Of course, parents of young people will continue to have the right to ask for a statutory assessment of their child’s needs to be undertaken and a right of appeal to the tribunal if the local authority decides not to carry one out. The academy would also have to adopt fair practices for such admissions in line with the principles of the school admission code. We would take very seriously indeed any instances where these freedoms were being abused. Very significantly, the new secondary accountability, the best eight progress measures, will become the main measure by which we assess the performance of all maintained schools and academies. This new approach will strip away the previous perverse incentives and will hold schools to account for the progress made by all their pupils, not just blunt measures of absolute attainment at grade C. This will move schools that have focused too much on those pupils who can achieve a C grade to focus on the progress of all their pupils and should particularly benefit SEN pupils in those schools.

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Moved by

[Baroness Hughes of Stretford]

17: After Clause 19, insert the following new Clause—
“Children and young people with special educational needs
For the purposes of sections 22, 24, 25, 26, 27, 30, 32 and 62 of this Act, the term “children and young people with special educational needs” will be interpreted to include children and young people with a disability under the Equality Act 2010.”

[Baroness Hughes of Stretford]

My Lords, Amendment 17 would, for the purposes of Sections 22, 24, 25, 26, 27, 30, 32 and 62 of Part 3, include children with a disability under the Equality Act. It would interpret children and young people with SEN to include children and young people with a disability as well. The Government have tabled a number of amendments, I think, to achieve the same thing.

I will be very brief as this is not now contentious, given that the Government have moved on the issue, but my amendment would ensure that key clauses that relate to identifying children with needs, duties of the health authority, joint commissioning arrangements, the duty to keep provision under review, the local offer, advice and information for parents and so on would all now apply equally to disabled children without a special educational need under the terms of the Equality Act. This is important, not only in principle, but also in its practical effects, particularly for the local offer, which we will debate later on Report. The local offer is particularly important for children with a disability but without a special educational need because that is now to be the only way in which they can get services that they and their families need. It is very important for the local offer, particularly Clause 26 on the joint commissioning arrangements between health education and social care. When they are looking at what is needed in an area they will have to take into account the needs of all children with a disability, including those without a special educational need, which was not the case under the Bill as it was drafted.

I very much welcome the Government’s concession here, as far as it goes. The Minister knows that I would have preferred to have an amendment to apply the whole of Part 3 to children with a disability as well. That would have achieved a truly inclusive, integrated and comprehensive system for all disabled children, whatever their disability and whatever the extent of their need. Many feel that this was the promise of the Green Paper. However, we have come part way and that is to be welcomed.

Turning to the government amendments, I think that my Amendment 17 has the advantage of being completely comprehensible when you read it, but the 40-odd government amendments are not so easily understood. I understand that it has been done in this way to achieve a more comprehensive effect and I look forward to the Minister explaining that. I beg to move.

[Lord Nash]

My Lords, it may be helpful if I outline our government amendments in this group to enable noble Lords to have a debate if they wish to. In Grand Committee we had an extensive debate about the support for disabled children and young people and I know that this is an issue on which the noble Baroness, Lady Hughes, has reflected deeply, as have I since then. Many Peers expressed concern that disabled children and young people without SEN would miss out on the benefit of our reforms and, at the time of the debate, I introduced a government amendment to require schools to make arrangements for supporting children with medical needs. I also asked for help from noble Lords in understanding which groups of disabled children would not be supported by this Bill, the government amendment in respect of children with medical needs, the provisions of the Equality Act 2010 and Part 3 of the National Health Service Act 2006.

Following the debate, the Every Disabled Child Matters campaign sent some very helpful advice to the department in which it said:

“The Government rightly made the point in the debate yesterday that disabled children and young people are already protected by a range of other legislation, such as the Equality Act 2010, the NHS Act 2006 and the Children Act 1989.

We would like to stress that our concern is not about the rights of individual children and young people who may have a disability but no SEN. We completely accept that on an individual level they are protected under the Equality Act 2010 and other legislation. Our concern is about disabled children and young people as a group not being included in the joint commissioning arrangements, review functions, and local offer duty”.

It went on to suggest which clauses in the Bill might be amended to achieve this—Clauses 22, 24, 25, 26, 27, 30 and 32—and drafted a single amendment to deliver this. I am grateful to the noble Baronesses, Lady Hughes of Stretford and Lady Jones of Whitchurch, for their amendment, which is largely based on the Every Disabled Child Matters amendment.

We agree with Every Disabled Child Matters that the clauses identified should be amended. However, our view is that, by relating the provision for disabled children and the young people to special educational provision, a single amendment would not deliver the outcome that we all want, and that we need to amend each clause.

Clause 22 would be amended to require local authorities to exercise their functions with a view to identifying both the children and young people with SEN and disabled children and young people. Clause 24 would be extended to require health bodies to inform the child’s parents and their local authority where they are of the opinion that a child under compulsory school age has, or probably has, a disability. Clause 25 would now require local authorities to exercise their functions with a view to ensuring the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people, where they think that this would promote their well-being, including in relation to their participation in education, training and recreation. In Clause 26, the duties on local authorities and their partner commissioning bodies to make joint arrangements for the commissioning of education, health and care provision for children and young people with SEN would be amended to include disabled children and young people.

Clause 27, which currently requires local authorities to keep under review the special educational provision and social care provision for those with SEN, would be extended to cover provision for disabled children and young people. They will broaden it to cover all education and training provision, not just special educational provision, for children and young people who have SEN or are disabled.

The amendments also require local authorities to consult disabled children and young people and their parents when carrying out that duty. The provisions in the local offer would include disabled children and young people, both in relation to the information to be published and in developing and reviewing the local offer and publishing comments. In Clause 32, the requirement on local authorities to arrange for young people with SEN and parents of children with SEN to receive advice and information on SEN would be extended to include provision for disabled young people and the parents of disabled children to be provided with information about matters related to disability. I have also tabled an amendment, which we shall come to later, to extend the requirement to cover children themselves as well as their parents. Clause 73 would make it clear that the definition of disability applied to the provisions covered by these government amendments is that in the Equality Act 2010.

Noble Lords will also be aware from commitments that I made in Committee that we are looking at ways of strengthening links to the Equality Act duties, including those to make reasonable adjustments in the SEN code of practice. The amendments that I am speaking to today will sharpen the focus on the Equality Act duties considerably. Since the code of practice is statutory, the guidance that it provides cannot be ignored. I will respond to the debate in the normal way in due course but I hope that noble Lords are reassured by these amendments.

[Baroness Hughes of Stretford]

My Lords, I thank the Minister for his explanation and I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

--- Later in debate ---

[Baroness Sharp of Guildford (LD)]

My Lords, I have much sympathy with the amendment, particularly the point raised by the noble Baroness, Lady Howe, about those who do not have EHC plans. As she rightly said, we are talking about a large number of children—a much larger number of children than will have EHC plans—and it is important that there are facilities to meet their needs. The onus is now on schools to provide those facilities, but we know that traditionally, schools have relied considerably, first, on local authorities to help provide them and, secondly, on health authorities and, for that matter, social services to supplement them.

At the moment, there seems to be a void in the Bill on the question of how more specialist facilities are to be provided. The joint commissioning arrangements, as identified in the Bill, are fine, but at the moment they are targeted at those with EHC plans; there is no mention of those without them. I think that the idea is that what is available will be spelled out in the local offer—I look forward to what the Minister has to say when we discuss the local offer. At the moment, there are a lot of loose ends and, given the number of children and young people involved, I hope that the Minister will take the matter seriously.

[Baroness Hughes of Stretford]

My Lords, briefly, I support the amendments, especially Amendment 19. I do so because Clause 26, which deals with joint commissioning arrangements, is an extremely important part of Part 3 and the new apparatus that the Government are constructing. I support the amendments because they are aimed at strengthening the joint commissioning arrangements. They need strengthening because of the wording of the Bill. We discussed this in Committee. Clause 26 seems to provide that local authorities and health and education authorities must set up arrangements so that they can have a discussion about what needs to be provided in an area, but it does not say that they must secure the provision that they think is needed. That is an odd omission. Amendment 19, in particular, would create an obligation to secure the provision for children and young people who have not got the education, health and care plans agreed under Clause 26(3)(a). That is a very important amendment to make to the Bill.

As the clause stands, it says that the local authority and its partner bodies “must make arrangements”. The omission to do with “securing” is particularly important with regard to health. As we said in Committee, potentially they can use other legislation for absolving themselves from improving on the provision available, on the ground of cost. It would be very helpful if the Minister could put on record the Government’s intentions in Clause 26 in relation to securing the provision that is identified as being needed through the joint commissioning arrangements, particularly, but not exclusively, in relation to health.

Given that Amendment 19 seeks to strengthen Clause 26 in relation to that securing and, as the noble Baroness, Lady Sharp, has said, identifies the rather insecure position at the moment of children and young people without plans, I support it and hope that the Government are sympathetic.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Howe, for speaking on behalf of the noble Lord, Lord Ramsbotham, and arguing his case for him. He and I had very useful discussions before he had to leave and I know how reluctant he was to depart. Noble Lords are right: this is a very important issue. These amendments are designed to ensure that those without education, health and care plans can have their needs met and that the joint commissioning arrangements are transparent and effective. We understand the purpose behind that.

It is worth emphasising—and helps me in understanding the provisions here—that I have just come, as it were, from the Department of Health and worked on the health Bill. The NHS is, and continues to be, a universal service. It must respond to the reasonable health needs of the population it serves. That will be an absolute requirement, connected with the fundamental duties on commissioners to meet the health and care needs of children and young people, and supported by the requirements in the National Health Service Act 2006 on CCGs to engage with the public and with professionals and to promote integration of health and social care and health-related services. It is worth remembering, then, the strength of those provisions from the health side when looking at these arrangements.

Joint commissioning is the heart of the new arrangements for SEN. The statutory framework makes local authorities and CCGs working together fundamental to how we meet the needs of children with SEN and disabled children. Working together is not an option; it will be a “must do”, thanks to this Bill.

Our joint commissioning requirements are backed up by powerful statutory accountability. NHS England’s mandate—the “must dos” for the NHS—sets a clear objective that the NHS must ensure that children with special educational needs have access to the services identified in their agreed plan. NHS England will be held to account for delivery of that, and it in turn will hold CCGs to account.

There is also local accountability, as every CCG’s plans and performance are scrutinised by the local health and well-being board. That board has a specific role to improve the health and well-being of the local population and reduce health inequalities. It must include representatives from each local CCG, Healthwatch and the local authority directors for adult social services, children’s services and public health. Those are key people, accountable for local services. They will prepare the joint strategic needs analysis of the population, including this group, at high level.

I hope this helps to reassure noble Lords that the needs of children and young people with SEN and disabilities with and without plans will be met, and that on that basis Amendments 19 and 22 are unnecessary.

The joint commissioning arrangements require that partners across education, health and care work together to deliver integrated services for those with SEN and disabilities. In the draft SEN code of practice we are explicit that arrangements must be established that are clear and robust, including what happens in the event of a dispute between partners, and should be specifically accountable to councillors and senior commissioners locally.

Equally, subsection (4) makes it very clear that partners must be able to reach agreement on a course of action in every case. The wording in the joint commissioning clause reflects the fact that the parties are expected to follow the arrangements unless there is a good reason to depart from them.

On making the commissioning arrangements transparent, we say in the draft SEN code of practice that commissioners should engage partners, and particularly representative groups such as parent carer forums, as the first stage of their joint commissioning arrangements. We hear what noble Lords have said and conclude that we could be even clearer on that in the code. In the final version we will say more on the role of schools in the commissioning process.

[Baroness Hughes of Stretford]

That is very helpful. Could the Minister clarify subsection (4)? It says:

“Joint commissioning arrangements about securing education, health and care provision must … include arrangements for”,

securing EHC needs assessments. It talks about EHC assessments only and EHC plans only; it does not talk about securing services for children without plans.

[Baroness Northover]

The noble Baroness will note that I have talked about supporting children with and without plans. If she bears in mind the responsibilities within the NHS, the NHS mandate, the responsibilities of the CCGs, what the health and well-being boards are designed to do and the intention within the health service to reduce inequalities and ensure that nobody is left out, and looks at those matters in conjunction with that, I hope she will see that there are very strong provisions coming from the NHS side that help to address this. In a minute, I may give her some more comments from the education side, but I hope she will appreciate that joining up with the NHS is a very positive move forward.

Under this Bill, the local authority is also required to consult on the local offer and when it is keeping its education and social care provision under review. Equally, there are duties on CCGs to ensure they, too, consult with local partners and patient groups, including at the commissioning stage. CCGs are held to account by NHS England for delivering this statutory duty, and NHS England has issued statutory guidance for CCGs on engaging with patients.

The noble Baroness, Lady Howe, made the point that the noble Lord, Lord Ramsbotham, made to me about the role of Nick Hurd and the Cabinet Office taking responsibility for youth strategy—for example, youth clubs and national citizenship services. That is distinct from departmental responsibilities for education, health and social care, which, obviously, are about the best services for young people as well as children. Cross-government working, especially between the Department for Education and the Department of Health, is critical to the success of these reforms. The Cabinet Office has a role to play because of its strategic oversight of support for young people.

I reassure my noble friend Lady Sharp—and this also picks up the point made by the noble Baroness, Lady Hughes—that the provisions in Clause 26 for joint commissioning embrace children and young people without EHC plans, as well as those with such plans. I hope that the noble Baronesses will be reassured by that.

As the noble Lord, Lord Ramsbotham, and I discussed before his departure tonight, the Government are clear that further legislation is not the answer. The noble Lord has identified an important implementation challenge and the noble Baroness made reference to that challenge.

We must indeed ensure that local areas take full advantage of the opportunities offered by the NHS reforms which I have, I hope, spelt out and by the Bill to secure the best possible planning and commissioning of services to meet local needs. Children with SEN and disabilities, who particularly need their health services, schools and local authorities to be joined up, must benefit from this. That is why I propose that instead of pursuing this amendment a better proposition, which is what the noble Lord, Lord Ramsbotham, and I talked about, would be to arrange a meeting with those working on implementation at the Department for Education and the Department of Health. The noble Baroness referred to that meeting; it would also be with the interest groups that the noble Lord mentioned—the noble Baroness mentioned local authorities, which are obviously also relevant here— and would be about what we should be doing to get the implementation right. I was very glad that the noble Lord, Lord Ramsbotham, was enthusiastic about contributing to that. Of course, he has a lot of expertise in this area.

I hope very much that we will go down that route and that instead of pursuing this amendment, we will take forward these discussions about how this is best implemented, while taking on board the issues which noble Lords have flagged up. I hope that I have been able to reassure noble Lords that the joint commissioning arrangements clause offers a strong framework that works with the NHS and will drive forward the SEN reforms locally, for those with and without plans, and that the NHS mandate, with its specific emphasis on inclusivity, addressing inequalities and on children with special needs, helps to underpin this. On that basis I urge the noble Baroness, on behalf of the noble Lord, to withdraw the amendment.