Children and Families Bill

Baroness Hughes of Stretford Excerpts

Tuesday 7th January 2014 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, I have a suggestion following what the noble Baroness has just said about implementation, but first I must say how pleased I am to see that my noble friend Lord Nash has listened tremendously well and gone away and done something about it. This has been a great example of the way this House works so well behind the scenes. I am very pleased that the blanket statement that all the good stuff in the Bill should not apply to children in custody has been got rid of and that my noble friend the Minister has grasped the opportunity that the Bill gives to put something better in place. Let us see whether we can get it as perfect as we would like to see it.

It occurs to me that it is a very good thing that the responsibility moves back to the home local authority. What we want to see when young people come out of custody and go back to their home local authority is continuity of provision. I know that the Local Government Association has welcomed this provision, but the people actually delivering the services while the young people are in custody are a company, an organisation that has been contracted to deliver that service from outside. They are not the prison authorities. These education services are provided by external organisations under contract. Why should those contracts not always have a proviso within them that says that there is somebody within the organisation with the responsibility of liaising with the home authority to ensure that the EHC plan is delivered, or the assessment is made, whichever is appropriate, and that the services are provided while the young person is in custody? That should be a condition of the contract for delivering education services within the prison. They should be obliged, under their contract, to provide what EHC plans say should be provided. I see no reason why that should not be a condition of winning a contract for providing services within a prison.

My final point is that I am particularly pleased about the duty that is being put on health commissioners to provide services within an EHC plan. I am aware, and the noble Lord, Lord Ramsbotham, has emphasised it on many occasions, that speech and language therapy is much needed by a high percentage of young people in custody. Let us hope that those services will be provided better in future under these new provisions.

[Baroness Hughes of Stretford (Lab)]

My Lords, my name is attached to Amendment 50 along with that of the noble Lord, Lord Ramsbotham. The amendment seeks to take Clause 70, which disapplies the provisions of Part 3 to detained young people, out of the Bill and I am pleased that the Government have accepted that. I also support Amendment 49, tabled by the noble Lord, Lord Ramsbotham.

I can be brief because most of the points have been made. I welcome the Government’s recognition that, as the noble Lord, Lord Storey, said, it was unbelievable that the provisions in Part 3 ought not to apply to detained young people and they have come some way, at least, to applying some of the provisions to young people in custody. However, I regret that, compared to the situation that will exist for young people in the community, the provisions in the government amendments are weak and that, as they stand, they will not give detained young people the same rights to and expectations of support as those in the community.

A number of points have been raised and I would like to summarise two significant holes in the proposals in the amendments as they hang together. First, where there is an EHC plan in existence before a young person goes into custody, the amendments will require the home local authority to maintain that plan and be ready to re-implement it on the release of that young person. That is good. However, as the noble Lords, Lord Ramsbotham, Lord Storey and others have said, the amendments will require the local authority and the healthcare authority to use only their “best endeavours”. That is very different from the duty on the local and healthcare authorities for young people in the community to secure the provision in the EHC plan. That is a big hole and I should be grateful if the Minister would address that issue and say why the Government have diluted the duty on local authorities in respect of detained young people.

The other big gap, which has been addressed in different ways by different contributors to the debate so far, relates to what happens to young people while they are in custody. Most of the amendments address the issue of what happens when the young person is released—they ought to be able to go back home and the home authority should carry on implementing the EHC plan that was in place—but there is nothing in the amendments about what happens in custody. There is a duty on YOIs and custodial institutions to co-operate with the local authority but there is no requirement on the institutions to, for example, identify if a young person has SEN if it has not been identified before they go into custody. This may well be the case because many of them have special educational needs. There is no responsibility on the custodial institution to request an EHC assessment. They can, but there is no requirement for them to do so. There is no responsibility laid on the custodial institutions to take over the responsibilities that would exist for a local authority if that young person was still in the community.

The noble Baroness, Lady Walmsley, referred to the contractors providing the education, but the responsibility ought to lie with the public sector organisation, or the quasi-public sector organisation in the case of a privatised institution, which is holding these young people. It ought to be its responsibility to address the special educational needs of those young people while they are in custody, working closely, of course, with the home local authority from which a young person has come and to which they will return.

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[Lord Nash]

My Lords, I am delighted that the noble Lord, Lord Ramsbotham, is satisfied that we are nearly there. However, as always, we do not quite seem to be there. The best endeavours clause that we are proposing for home local authorities would place incentives, we believe, in the right place—it is in the home local authority’s best interests to arrange quality provision, as it will remain accountable for the young person while they are detained and when they return from detention.

I remember many late nights in lawyers’ meetings when I have been strongly advised not to give a “best endeavours” undertaking, as it is a very strong under- taking, but to try to get away with a “reasonable endeavours” one. My legal training teaches me to believe that a best-endeavours undertaking is actually a very strong one.

The amendments specifically require the local authority to secure the special educational provision that is specified in the plan. If that is not possible, best endeavours would require home local authorities to do everything they could to arrange the special education provision specified in a young offender’s EHC plan while they are in custody—or provision that corresponds as closely as possible to it or to other appropriate provision. Some provision specified in EHC plans cannot be arranged by local authorities while a person is in custody: most notably and obviously, any requirement for a young person to attend a particular school or college, which of course they cannot attend while detained. It is for this reason that it is necessary to use the term “best endeavours”. It is a technical term that avoids placing a legal duty on local authorities which is impractical or impossible for them to deliver.

Amendment 47E does not, we believe, provide a get-out enabling home local authorities to have a free choice about which services they arrange for detained children and young people. They cannot simply decide, without robust justification, that some provision is no longer appropriate, just to avoid arranging it. Under the best endeavours duty, their starting point must be to arrange the provision specified in the EHC plan. They can arrange alternative or other appropriate provision only once they have done everything they can to arrange the provision specified in the plan.

Local authorities and the health services commissioner will be accountable to parents and young people in respect of this best endeavours duty. Parents and young people will be able to complain to their home local authority or to the health body—with ultimate recourse to judicial review. Our strengthened best endeavours duties will be accompanied by a robust code of practice.

The existing contracts for education services in public sector young offender institutions are due to end later this year. We will ensure that the arrangements made with the new education providers support local authorities as they seek to fulfil their best endeavours duty to ensure that provision in EHC plans continues to be delivered while a child or young person is in custody.

The current draft code of practice was of course written before we tabled these amendments. We will now rewrite the code to reflect them and the intent that I have today set out. I am very happy to discuss the wording of the code with the noble Lord, Lord Ramsbotham, outside the Chamber. The code is of course subject to affirmative procedure. I hope that the noble Lord will find that helpful. I look forward to those discussions with him so that it will not be necessary for us to come back to this at Third Reading.

[Baroness Hughes of Stretford]

I am not clear: could any requirements in relation to young offender or custodial institutions included in the code of practice actually be applied to those institutions? Could they come within the purview of the code of practice legally?

[Lord Nash]

I have no idea, but I hope that by the time I have finished dealing with the amendment of my noble friend Lord Addington, I might have an answer.

My noble friend Lord Addington tabled Amendment 48A to require the host local authority to make arrangements to ensure that the workforce has the skills and knowledge to identify special educational needs and put in place effective interventions. It is already a requirement of those we commission to deliver education in the youth secure estate to ensure that the needs of those young people with SEN are properly identified and addressed. Education providers in the youth secure estate are contractually required to have an appropriately trained and qualified workforce to conduct assessments. They will also have a SENCO who is responsible for managing the effective delivery of specialist SEN services.

Education providers are required to conduct an educational assessment of anyone entering custody unless this information is already known. That includes both assessments of levels of literacy, language and numeracy, and the screening of anyone who shows signs of a specific learning difficulty or special educational need. They also use a variety of tools for this purpose, including the hidden disabilities questionnaire developed by Dyslexia Action which screens for a range of hidden disabilities. Provision is subject to regular inspection by Ofsted, where appropriate working with HM Inspectorate of Prisons.

The current contract between the Education Funding Agency and education providers for young offender institutions requires all secure settings to have: procedures for ensuring that the identification and support of specific learning difficulties in young offenders is inspected, evaluated, monitored, reviewed and developed; and an appropriately trained workforce that will identify and support a young offender’s individual learning needs and deliver relevant and individually tailored programmes of learning support to those young offenders whose profiles provide evidence of specific learning difficulties. With the amendments I have proposed today, a young person identified as being at risk as a result of the screening process could be referred for a full EHC assessment. In view of this, and the existing requirements on providers and the amendments I have outlined, I hope that my noble friend will not press his amendment.

I am confident that the government amendments in this group will result in vastly improved provision for children and young people with SEN in custody, and that they address the views and concerns of noble Lords. We have made significant steps on this. As I said, I would be very happy to continue discussing this further—including, if I may, the point made by the noble Baroness, Lady Hughes.

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[Baroness Hughes of Stretford]

My Lords, I rise briefly to make two points. First, I welcome the amendments. The wording of the government amendments is very sensible and I am pleased that the Minister has listened. The critical moment was when the Government published their policy position on this issue when it was crystal clear to everyone that the position as outlined was not reflected by the words “having regard to age” in the Bill. That was a kind of “light bulb” moment, and I am pleased that they have recognised that. The wording in so far as it goes is fine, and I am very pleased to support it.

Secondly, I commend the points made by the noble Baroness, Lady Cumberlege, repeated by the noble Baronesses, Lady Sharp and Lady Howarth. It is important that the Government pay attention to the way in which the code of practice reflects this change and make sure that the wording in the code is expansive rather than restrictive on local authorities and other service providers, so that they can look in the round at these young people as they approach and go beyond 18, in terms of their various needs, and not limit it only to a formal definition of education and training. I look forward to the Minister’s remarks on that, but I very much welcome the changes.

[Lord Nash]

My Lords, I thank again my noble friends Lady Sharp and Lady Cumberlege, as well as the noble Baroness, Lady Howarth, for their insights during Grand Committee. I welcome the opportunity that the noble Lord, Lord Pearson, has given us to clarify how we have secured continuity of adult care for young people with EHC plans. I also thank the noble Baroness, Lady Jones, for her kind remarks.

On the point made by my noble friend Lady Cumberlege, yes, we are making it clear that the outcomes that we are looking for are wider. The outcomes specified in the plan do not have to be formal or accredited; we are happy to make sure that that is clear in the code. On a point made more generally by my noble friend Lady Sharp, the draft code predates the amendments, and we will make sure that the code fully reflects the amendments, including making it clear that outcomes rather than age must be considered.

In response to the important issues raised by the noble Lord, Lord Pearson, I am delighted to state categorically that no young person who turns 18 and is in receipt of children’s social care will face a gap in provision while consideration is made about their adult care. This applies if they move to a new local authority or if their EHC plan comes to an end at that point because they are leaving education. Clause 47 provides for regulations that ensure continuity of support and provision when a child or young person with an EHC plan moves to a different local authority. For those turning 18, Clause 50 enables local authorities to extend children’s services beyond the age of 18 for those with an EHC plan where that is the best option. Provisions in the Care Bill ensure that there is no gap in care services when a young person moves to a different area, turns 18 or their EHC plan comes to an end. Those 18 year-olds who have eligible needs for care and support will in future receive a statutory care and support plan. Both we and the Department of Health are clear that this will form the care part of their EHC plan when one is in place and would continue in its own right as a statutory plan once their EHC plan is no longer maintained.

Furthermore, Clauses 37 and 38 of the Care Bill ensure that support is continued when someone with a statutory care and support plan moves to a new local authority. When a young person turns 18, Clauses 59 to 67 of the Care Bill ensure that assessments for adult care are carried out in good time so that support can be put in place promptly. In particular, Clause 67 requires local authorities to continue to provide existing support under Section 17 of the Children Act 1989 or under the Chronically Sick and Disabled Persons Act 1970 until adult care begins, or a decision is made that an adult care and support plan is not required. Young people who have made a successful transition to adulthood and are now in employment, higher education or adult learning, will continue to receive support in those settings that will enable them to maintain and build on the outcomes achieved while in formal education. For example, Access to Work is available for those in employment.

As regards the point made by the noble Lord, Lord Pearson, about the reading of the words “for some other reason”, the Department of Health is clear that this phrase does not in any way change a local authority’s duty to meet an adult’s eligible needs for care and support under Clause 81 of the Care Bill. “Other reasons” could refer to, for example, a person changing their place of residence to a different local authority area before the assessment has been completed. It does not provide carte blanche for local authorities to refuse to provide services for spurious reasons. I hope that is helpful. I believe that the amendments I am moving today represent a genuinely positive change to the Bill, which, along with reforms in the Care Bill, further strengthen arrangements for young people making the transition to adulthood. I hope that noble Lords will support them.

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[Lord Storey]

My Lords, if you are going to agree an education, health and care plan, it is clearly important that all elements have to be provided. That is agreed. I understand that there are complex difficulties here. I have spoken to the Local Government Association, which recognises those difficulties. I know that the Minister himself is—perhaps “wrestling” is too strong a word—looking in detail at how we can get what we all want. I hope that your Lordships will be patient on the issue, because I am sure that with good will on all sides we will eventually get there.

[Baroness Hughes of Stretford]

My Lords, my name is also attached to the amendment and I respectfully suggest to your Lordships that this is one of two outstanding, key issues on which the effective implementation of the Government’s welcome approach to integration of education, health and social care depends.

Clause 42 states that where a local authority maintains an ECH plan it must secure the special educational provision. Where the plan specifies healthcare provision, the responsible commissioning body must provide the healthcare. The amendment would simply place a parallel duty on local authorities to provide the social care that is outlined in the plan. This is a key issue for parents as well as, obviously, for many noble Lords in this House. As the legislation is currently drafted, the ECH plans would offer no more legal entitlements to support from social care services than current statements do at the moment. Let us remember that social care provision can be detailed in those statements in a separate section from educational provision. However, the aim of these reforms and the Bill is to provide a simpler system for disabled children and young people, and those with special educational needs and their families, that integrates the different forms of provision into one piece of legislation. One assessment and one plan is what the Government are trying to achieve for those families. There is an opportunity in the Bill to bring everything together. One of the main aims of the Bill is to provide clarity, transparency and integration, as the noble Baroness, Lady Sharp, so eloquently identified.

In Committee and at the various meetings that we have had on this matter, while the Minister has been trying to listen, I do not think that so far the Government have provided any coherent reason for excluding the local authority from the duty to provide the social care specified in the plan. As the noble Lord, Lord Low, reminded us, the first argument put by the Government was that other legislation—the Chronically Sick and Disabled Persons Act together with the Children Act—already provide for that duty. A second argument deployed at later meetings was that placing such a duty in this Bill would give disabled children an unacceptable priority in law above other children in need.

The debate has been rather clouded by well meaning but exceedingly technical legal opinions on both sides. However, the clearest and most helpful opinion has come in the further opinion, dated 13 May 2013, from the lawyers commissioned by the sector. This asked the crucial question in relation to these different arguments as to whether placing local authorities under a duty to deliver the social care set out in the plans would represent a significant change to local authorities’ legal duties under that existing legislation. The crucial question is whether it would represent a significant change. The answer in the opinion is emphatically no. If noble Lords will bear with me, it is worth putting this opinion on the record.

The crucial question asked is whether placing local authorities under a duty to deliver the social care provision set out in the EHC plans would represent a significant change to local authorities’ legal duties in other legislation. Paragraph 13 of the opinion states:

“No. If there were to be a specific duty to provide the social care provision set out in an EHC Plan, this would simply mean that the Local Authority would be discharging its CSDPA 1970 duty (either wholly or in part) by providing the provision set out in the Plan. Indeed, for children who qualify for an EHC Plan the inclusion of social care provision within the Plan is a helpful way of determining that the Local Authority considers that this provision is necessary to meet their needs—in other words that the test for the 1970 Act duty to arise is met”.

The opinion goes on to say:

“This is very similar to the approach that the Government has adopted in relation to the duty to arrange health care provision … the Government accepts that in arranging the provision specified in the plan a CCG”—

a clinical commissioning group—

“will be discharging its existing duty pursuant to section 3 of the NHS Act 2006”.

This was a question that we asked in Committee: why the difference between social care and healthcare? Paragraph 14 states:

“Any concern that this would involve treating disabled children more favourably than other groups of children ‘in need’ is misplaced. Firstly, disabled children have already benefited”—

for more than 40 years—

“from the specific duty … in the CSDPA 1970 to provide them with support, a benefit which other children ‘in need’ do not enjoy … Secondly, it is a well established tenet of discrimination law that reasonable positive measures intended to correct significant disadvantage experienced by a particular group are unlikely to be discriminatory. Indeed Equality Act 2010 … provides that compliance with the public sector equality duty … ‘may involve treating some persons more favourably than others’”.

Therefore, in this view, the inclusion of social care under the duty to provide the services specified in an EHC plan would not make a significant difference to existing entitlements in social care and, indeed, is simply consistent with local authorities’ current duties.

However, there would be a number of significant advantages to putting this duty into this Bill as well. A main advantage is that it would clarify for parents the responsibilities of the three agencies together regarding what must provided—in other words, everything in the plan—and that would be a very big benefit for parents. Secondly, it would consolidate the integrated approach that runs right through this Bill until we get to social care. Thirdly, it would give children under 18 the same demonstrable, enforceable rights that adults already have under the Chronically Sick and Disabled Persons Act, and thus there would be a seamless and equal status for disabled children from birth to 25. Those are the simplest legal arguments in favour of the amendment.

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[Lord Storey]

My Lords, I, too, moved an amendment in Committee on a single point of appeal. It beggars belief that you would have progressive legislation that creates for the first time a joined-up approach to education, health and social care but not a joined-up approach to an appeals mechanism. Everybody I have spoken to agrees with that.

Of course, the problem is the current systems that we have, so the notion is that we establish a Bill that creates single education, health and social care plans but then the appeals mechanism is threefold. We expect in this child and family-friendly approach for parents then to navigate their way through these different systems. Currently, the health appeals mechanism is not very transparent and on patient or family satisfaction ratings is very low indeed. Local authorities, as we know, vary.

What do we need to do? First, the code of conduct very much highlights the need for mediation—but it talks about mediation in terms only of education, not on the health and social care side. I hope the Minister might respond by telling us how we bring the mediation together for all three strands of the plan. In my view, mediation could considerably reduce the number of people wishing to appeal.

Then you come to the appeals mechanism itself. Whatever happens here today, I am utterly convinced that, in the years that follow, there will be one tribunal for these plans. The difficulty is the bureaucratic systems, as eloquently extolled by the noble Lord, Lord Low. Currently, the bureaucracy is not fit for purpose. My great fear is that we push the bureaucracies to agree one tribunal, they go kicking and screaming, and the whole thing does not work. We have to negotiate and make sure that everybody is on board to make this happen. Having talked to Ministers in health and education—though having been slightly disillusioned by officials—I am sure that we can achieve that eventually. We need to give my noble friend Lord Nash more time to continue those negotiations. Again, as has been said, I am sure that on the education side we all agree.

[Baroness Hughes of Stretford]

My Lords, I support Amendment 40A moved by the noble Lord, Lord Rix, and colleagues. We supported him on this in Committee and it would still be our first preference as it would add health and social care provisions to the list of matters in respect of which children, young people and families could appeal to the First-tier Tribunal.

This was first moved in Committee by the noble Lord, Lord Storey, as he just reminded us. I recall that he subsequently said, as he has just done so, that he was unsure as to the feasibility of this approach in terms of the technicalities. For that reason, because we may not be able to evaluate those technicalities at this point, we have tabled Amendment 40B, which I will refer to in a moment. I do not know if the comments of the noble Lord, Lord Storey, mean that he would support that amendment but it has the intention of giving the Government time to resolve whatever the issues are.

As other noble Lords have said, the issue is simple: the Government want to establish an integrated system for meeting better the needs of disabled children and those with special educational needs. That integration would be at the point of assessment and planning education, health and social care. However, as the Bill stands, that integration is blown apart at the point of appeal. As we have heard, parents and young people would potentially have to go through three different routes of appeal simultaneously for the three different elements of their plan. Like the noble Lords, Lord Low and Lord Rix, I sense that behind this is the considerable resistance from the Department of Health and the Department for Communities and Local Government to any change.

Having previously been a Minister for some time, I feel quite strongly that agencies should bend for the benefit of families. Families should not be imposed with the burden of mobilising three bureaucratic systems that just happen to exist. It is the job of all of us, particularly the Government, to make those agencies bend, albeit by negotiation and discussion, to make the system work for the people that we are here for.

In a letter to noble Lords, the noble Lord, Lord Nash, said that the tribunal is only for special educational needs, and that, as we have heard:

“There are established routes of complaint about social care through the local authority complaints procedures”,

and, for health, to the health complaints procedure and the health ombudsman. That is not adequate, even if local authority and health appeals systems were simple—and they really are not, even for a Member of Parliament. I see the Minister for Children at the Bar and I am sure he will have tried to mobilise those complaints procedures on behalf of his constituents. It takes for ever, it is labyrinthine, it is completely not transparent and it is very bureaucratic. The idea of parents doing that on three fronts at once is simply unimaginable. There should be a single point of appeal and we support Amendment 40A.

However, should that not prevail tonight and the Government not accept it, we have tabled Amendment 40B which would require the Government actively to seek a way to secure a single point of appeal and to report back to Parliament within a year. That would keep the possibility alive. It would require the Government to do what they have not done and maybe have not had time to do so far: namely, to find a way to make this work for parents and families, to take on the resistance of those agencies and, if necessary, to change the law to establish a single point of appeal.

I am afraid that I do not share the optimism of the noble Lord, Lord Storey, that without anything done this evening there will at some point in future be a single point of appeal. I was constantly surprised and depressed by the inability sometimes to change some of our big public organisations. Without the drive and initiative from this and the other place, I do not think that will happen. I hope the Minister will take that on board.

[Baroness Howarth of Breckland]

My Lords, I support Amendment 40A but particularly Amendment 40B. I agree absolutely with the principle of Amendment 40A but believe that the complexities that need working through to get a single point of entry are so great that we need some sort of driving project.

However, I sincerely believe that we need that single point of entry. Everyone has said how difficult it is for families to negotiate the different kinds of tribunal. I remind noble Lords that these families are struggling with children with severe disabilities. One thing they do not have is time. If you have a disabled child, it takes three times as long, if not more, to do anything, so you are immediately short of time. These negotiations then cut into what time you have. You are also short on emotional energy. If you have been through any sort of tribunal—I have been through a few in my time in a number of different positions—you know the emotional energy that it takes. Disabled children drain emotional energy, much as you love them.

The other thing is that the information you need for the different points of entry is extremely complex. Many families are poor, have not had educational advantage and do not always have the help of someone to take them through the information to enable them to understand it. Were the Government to achieve one different kind of tribunal, perhaps an independent tribunal, it would be more efficient and more economic, because there would be fewer people involved and less time used up.

I have to say that no Government have achieved that yet. No Government have managed to bring health, social care and education systems together. It would be a real triumph were this Government able simply to take a project through to consider the issues and complexities involved and what would be possible to make life so much easier for families who are already struggling emotionally and with their time in trying to care lovingly for a disabled child.

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Tabled by

[Baroness Hughes of Stretford]

40B: After Clause 51, insert the following new Clause—
“Single point of appeal: review
(1) The Secretary of State will, within a year of this Act coming into force, carry out a review to assess the feasibility of enabling a child’s parent or a young person to appeal to the First-tier Tribunal in relation to the healthcare or social care provision specified in an EHC plan.
(2) In undertaking a review under subsection (1), the Secretary of State will pay particular regard to the need for an integrated appeals process.
(3) The Secretary of State will publish, and lay before both Houses of Parliament, a report setting out the conclusions of the review.”

[Baroness Hughes of Stretford]

On the basis of what the Minister has just said, I will not press this amendment. However, I say to him that whatever strengthening he may propose in terms of mediation, that is not the same as moving towards an integrated system of appeal. We will need to see some substantial progress towards that, or a route map for getting there along the lines of Amendment 40B, if we are not to rehearse this debate and put the amendment again at Third Reading. I hope that he does not mind my making that clear.

Amendment 40B not moved.