Children and Families Bill

Baroness Jones of Whitchurch Excerpts

Wednesday 23rd October 2013 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have tabled Amendments 69, 70, 90 and 91, and we have added our names to Amendment 223 in this group. We have had a very long debate and I hope that I am not going to repeat too much of what colleagues have said. I start by echoing the points that the noble Lord, Lord Low, made in his contribution. The first batch of our amendments very much dwells on that issue. It is important and it picks up the point that the noble Baroness, Lady Sharp has just made: it goes to our concerns about the heart of Part 3 of the Bill. We believe that, despite the very good intentions in the Bill to be inclusive, it appears that it still intends to exclude those with a recognised disability or chronic illness from a whole swathe of its provisions, and we believe that that is essentially still divisive.

We also feel that it is important that this issue is addressed and resolved now, at the outset, because it is a flaw that runs through the heart of Part 3. It needs to be tackled at this stage, not least because when we talked to the clerks about future amendments, they identified another 40 areas where we would have to table amendments to achieve a similar effect if we are not able to resolve it at the outset in the original definitions. So it is important that we come to a proper understanding and agreement with the Minister at this point about what is intended.

Our amendments, in common with those of a number of noble Lords, have sought to tackle whether the definition of SEN includes disability by amending the definition. Our intention and the way we have gone about it—a number of noble Lords have attempted to do the same thing—is to extend the scope of the Bill to refer to the definitions in the Equality Act 2010, to which the noble Baroness, Lady Howe, and others have referred. Our aim is to provide an overriding, inclusive definition which will apply throughout Part 3. We think that this is important and we feel that the arguments are overwhelming and compelling on this count.

The noble Lord, Lord Low, referred to research that we already have from the universities of Bath and Bristol, which was commissioned by the department and estimated at that time that in the region of 25% of disabled children may not have special educational needs. Indeed, that evidence was quoted by the Minister, Edward Timpson, in the Commons, when he said that,

“it is estimated that 75% of disabled children will also have special educational needs and so will be covered by the reforms”.—[Official Report, Commons, Children and Families Bill Committee, 19/3/13; col. 356.]

By definition, then, 25% are not. He also made it clear that the definition of SEN in the Bill mirrors the current definition, which, as we know, excludes many children. Again, noble Lords have cited statistics in that respect. The Minister himself took a similar line in his letter after Second Reading, in which he said that 75% of disabled children would be classed as having special educational needs. We have heard some examples this afternoon of the problems that this causes.

The noble Baroness, Lady Grey-Thompson, made the point very eloquently and we have heard other examples of children with a physical disability who, because the school was completely accessible, were not categorised as having SEN, or a child with serious health conditions that do not impact on their learning also not being classified as having SEN. We really need to bottom out whether it is the Government’s intention that such children would continue to be excluded from the provision in the Bill. This matters enormously because the truth is that assessment of SEN is the gateway in the Bill to all the other support provisions. As it stands, the joint commissioning provision and the local offer would be available to those defined as having SEN but not to the 25% who are not defined in that way. It would exclude the non-SEN children from health and social care provision to which some of them may already be entitled—we might be going backwards. This cannot be right and it goes against the whole ethos of the Government’s original proposals.

We know from this debate and from the level of correspondence and meetings that we have had that this remains a key ask of the sector; its frustration with the current proposals in understandable and urgently in need of resolution. The principles of the Green Paper were to make a system that would be simpler for parents, children and young people. At that stage, it was understood that education, care and health plans and the local offer would bring together current entitlements for disabled children and young people, regardless of what combination of education, health and social provision they require. That seems to us to a good principle, but we seem to have moved a long way from that excellent aspiration in the Green Paper.

Despite attending various meetings and briefings with the Minister, as well as looking back over the Commons debate, I have yet to hear a coherent argument as to why the Government are now insisting on this narrow definition of SEN, which appears profoundly to limit access to services. More recently we have heard that they do not feel that there is enough evidence that some groups of young people would be excluded from that provision but their own research seems to disprove that. Again, today we have heard examples of people which help to prove the point being raised.

Another argument seems to be that the code of practice will address some of those issues. Having looked at the draft code, it does not seem to shed sufficient further light on those key concerns. Anyway, reference to the code of practice is not good enough. We want this Bill to bring together all the different types of support that children need, which was promised in the Green Paper. That is key to ensuring that the needs of those children and young people are taken into account in joint strategic planning and commissioning, and that their educational progress is tracked.

I hope that the Minister will recognise the strength of feeling on this issue and put the sector’s mind at rest by agreeing to take this issue away to find a more acceptable, fully inclusive definition of SEN. If the Government intend the Bill to cover all children with a recognised disability or chronic illness, will he agree to work with us on a wording that would definitely and genuinely achieve that?

I now turn to the amendments tabled by the Government which address children with longer-term medical conditions. Again, we have added our name to Amendment 223 which addresses this issue. Obviously, we very much welcome the progress that has been made. It seems that the amendment remains quite general in its current form. I know that several other noble Lords have already posed questions to the Minister but I should like to add some of my own. How will a medical condition be defined and who will be covered by it? What is meant by the requirement for schools to “make arrangements” for support? Is that the same as a duty to secure the support? Where is the role of health authorities in working with schools on this? Why are requirements to consult parents and to provide appropriate staff training not set out more clearly? Perhaps more fundamentally—again, this challenge has been raised today—when will the draft guidelines be available and will we see them before Report?

We have had a good debate today. I am sorry to have held up the debate further but there are important questions that need to be answered. I very much look forward to hearing the Minister’s response. I hope that on all these issues he will continue dialogue to find forms of wording that will provide the necessary assurance to the sector on these issues.

[Lord Nash (Con)]

My Lords, this is our first debate on Part 3, and it has been excellent and extensive. I should particularly like to thank the noble Baroness, Lady Howarth, for her opening remarks. I thank all noble Lords who have contributed and shared their great experience and expertise. I am also grateful to those who have taken time over the summer to help me, as the new boy, to understand the issues and the history in this area, particularly the noble Lords, Lord Low, Lord Rix and Lord Ramsbotham, the noble Baroness, Lady Warnock, and my noble friends Lady Cumberlege, Lady Eaton and Lord Storey.

Before moving my Amendments 241A and 274 and respond to specific points in the debate, I hope that the Committee will find it helpful if I set out the context of our reform programme. Part 3 will deliver the biggest change to the system since the reforms that flowed from the report of the noble Baroness, Lady Warnock, in 1978. Her work transformed the lives of many children and young people, allowing them to enjoy the benefits that a high quality education can bring. We have seen other changes in law and society that have shaped this country’s view of disabled children, including such important legislation as the Disability Discrimination Act 1995 and the Equality Act 2010 and, of course, the great success of the Paralympics last year.

The changes we have seen for this group of children in our lifetimes and the challenges ahead were brought home strongly to me when I visited Chailey Heritage School with my noble friend Lady Cumberlege at the start of the school year. There I saw an institution that was founded out of charity to provide training in crafts to children born “crippled”, as it was termed then in the East End of London. Now it offers outstanding education, care and support to children and young people with the most profound and complex needs who, with excellent teaching, care and the aid of modern technology, are being supported to learn and to fulfil their great potential. Disabled children and children with special educational needs must all be treated first as individuals. They all have different needs. It is the Government’s concern, as I know it is of everyone in this room, to ensure that our services are supporting each of them and their families in the best way they possibly can.

I pay tribute to the work and legacy of the noble Baroness, Lady Warnock, and to the tireless work of many of your Lordships in championing the rights of children with SEN and disabled children. I also know that I do not need to tell you that, despite all the successes of the past 30 years, the current system is not working as it should. Fundamentally, successful reform will be about a change of culture. As we all know, it is tempting to think that by legislating a word here and a new duty there we can solve complex issues. However, what matters is how professionals work with children and families. Many noble Lords here have direct experience of the struggles that families can face. All of us know people who have had to fight to get the support that their child needs, grappling a faceless and apparently endless bureaucracy in a system that seems set up not to help but to frustrate.

This reform aims to change that. Its simple but ambitious aim is to unite services around the needs of the family, putting children, young people and parents at its heart. Legislation cannot do that alone but the Bill sets the framework to support the right ways of working. The detail is in the code of practice, which I hope noble Lords have now had the opportunity to read. It has been informed by the experience of the pathfinders. They are showing how services can come together and how families can help share the available support. I hope that those noble Lords who were able to hear from some of the pathfinders last week found their experiences both helpful and encouraging. I was struck then, and on my visits to pathfinders in Greenwich and Hertfordshire, how they were working with families to develop support that meets their needs and the impact that that support and the new ways of working were having in a much more co-operative environment.

Turning to the definition of SEN, this group of amendments reflects concerns that some children and young people might miss out on the benefits of the new system. A great many noble Lords have spoken about this and I apologise if I do not mention them all by name. It is not the Government’s intention to prevent any group of disabled children from receiving the support they need. We must ensure that all children who need support to access education because of disability or a special educational need can do so. The definition of SEN is deliberately broad:

“A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her”.

The Bill defines a learning difficulty or disability as,

“a significantly greater difficulty in learning than the majority of others of the same age, or … a disability which prevents or hinders”—

a child or young person—

“from making use of facilities”.

--- Later in debate ---

[Lord Nash]

I thank the noble and learned Baroness for that intervention. Clearly, we all got that impression, but we would like help on precisely what category of children are not covered by the existing legislation. I will take away all the points made today and we will reflect further.

[Baroness Jones of Whitchurch]

Perhaps I may also push the Minister on a point of clarification? I have a quote from the Minister in the Commons, who said that the SEN provision was in line with the current SEN provision which, as we have heard, excludes a whole series of categories of children. Does the Minister endorse the view that the SEN definition has not substantially changed, and that whole swathes of children will fall outside that definition?

[Lord Nash]

The noble Baroness is right that the definition has not substantially changed. Our position is that most disabled children—75%, according to one study—have a special educational need, and the others are covered by other legislation, particularly after the amendment that we tabled today. I would be grateful for guidance on those categories of children that we may have missed and how we could help them further.