Children and Families Bill

Baroness Jones of Whitchurch Excerpts

Monday 28th October 2013 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I shall speak to Amendment 72, the wording of which, as the Committee will note, is similar to that used by my noble friend Lady Greengross in her Amendment 71. I apologise to the Committee if it, quite rightly, thinks that I am being a bit military in my approach to Part 3 of the Bill. I am doing so because, in my experience, things work much better if they are corralled into an overall strategy.

As I mentioned earlier in our proceedings, the Bill is, or ought to be, all about child development, the heart of that being Clause 19(d), which refers to, “the need to support” every child or young person,

“and his or her parent … in order to facilitate the development … and to help him or her achieve the best possible educational and other outcomes”.

The key word in this is “development”. The current absence of a Minister for child development was the reason for my earlier question to the Minister about who was responsible, and therefore accountable, for overseeing the development of every child in the country. This concern arises from my view that the only raw material that every nation has in common is its people, so woe betide it if it does not do everything that it can to identify, nurture and develop the talents of all its people. If it does not, it has only itself to blame if it fails.

The absence of any apparent child development strategy is doubly disappointing. A number of recent initiatives seemed to suggest that the development of every child was becoming the Government’s default aim. For example, the introduction of an early years foundation stage in every child’s life, concluding with an assessment, appears to be a sensible way to enable entry to a 0 to 25 pathway. During our work on the link between social disadvantage and speech, language and communication needs, the All-Party Group on Speech and Language Difficulties, which I chair, was shown four other sub-pathways that were being worked on by the Department for Education, the Department of Health and others. One covered pre-birth and the first few months of life, the second up to and including primary school, the third roughly secondary school and transition into adulthood, and the fourth was for those at risk of becoming involved with the criminal justice system. Those seemed entirely sensible and appropriate because they pulled in all the players in those processes. I should therefore be very grateful if the Minister would let me know what the current status of these four pathways is and their relationship to the 0 to 25 pathway proposed for those with special educational needs.

Logic suggests that the early years foundation stage assessments should be turned into individual health, education and care plans and 0 to 25 pathways for everyone. Default education, health and care plans for the 81.2% of children who do not need help along the way, unlike the 2.8% on statements and the 16% on school action or school action plus plans, could merely be progression through the educational system, but it would be a plan. However, the Bill as presented, instead of seizing a priceless opportunity to bring order and logic into a system that requires the co-operation and joint working of so many different ministries and agencies, by laying down a default position and then highlighting how individual necessary alternatives are to be identified and delivered, does not contain the necessary strategy and leaves a number of key requirements unresolved. These include further assessments at various stages along a pathway to identify changes of need and oversight of the whole process.

Amendment 72, about which I am extremely grateful for the detailed legal advice of David Wolfe QC, focuses on one important part of special educational provision, as well as trying to seal a potential crack in the presumed strategy. The importance of speech and language therapy was highlighted for me when, as Chief Inspector of Prisons, I was wondering what could be done with and for the more than 60% of young offenders who were found to have speech, language and communication needs. If only those needs had been identified and challenged earlier in their lives, they might never have truanted or been evicted from school, or ended up in young offender institutions. Luckily, Lady Helen Hamlyn funded a two-year trial of putting a speech and language therapist into each of two young offender institutions. The two governors of these institutions were saying, within a week of the therapists’ arrival, that they did not how they had managed before they came along.

To cut a long story short, everyone agreed how invaluable their contribution was, because at last all young offenders could communicate with education, healthcare and disciplinary staffs, which enabled individual plans to be made. Despite this, I could not persuade either the Home Secretary or the Secretary of State for Education to pay for them, because speech and language therapists belonged to the Department of Health, whose Secretary of State in turn refused to pay, on the grounds that all such funding was delegated to what were then called primary care trusts. The development of thousands of children has gone by default, and the same could happen to millions more if speech and language therapy is not enshrined in government child development plans.

Therefore, I welcome the Government’s apparent intention to maintain the existing position, confirmed in both case law and the current Special Educational Needs Code of Practice from 2001, which, in Chapter 8.49, says that,

“since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision, unless there are exceptional reasons for not doing so”.

The new, separate definition of healthcare provision in the Bill creates a risk that speech and language therapists, because they are provided by the NHS to address this impairment, could be reclassified as healthcare provision, rather than, as currently, educational provision.

This raises two problems. First, parents could lose their right of appeal to the Special Educational Needs and Disability Tribunal. Secondly, healthcare provision does not have to be included in an educational health and care plan unless it is, to quote the Bill, “reasonably” required, which implies that it could be left out on cost grounds. Although Clause 21(5) mitigates the risk of reclassification, it does not remove it, and the rewording that I am proposing in Amendment 72 is designed to ensure unambiguously that the existing classification of speech and language therapy as educational provision is maintained. I beg to move.

[Baroness Jones of Whitchurch (Lab)]

My Lords, our Amendment 73 is in this group, and it has the same intent as that of the noble Lord, Lord Ramsbotham, and the amendment from the noble Baroness, Lady Greengross. We have just gone about it in a slightly different way. The issue is one of what should be classified as special educational provision. As the noble Lord, Lord Ramsbotham, quite rightly pointed out, this is important because, by its nature, this determines what issues parents can take to appeal, and we should make that classification as broad as we possibly can.

We have debated before in Grand Committee how broad a definition we are going to apply to special educational needs, and that we believe that a whole tranche of disabled children are not classified and included in that. This issue touches on that somewhat as well. As we said at the time, it is important to get a standard classification of special educational needs and disability included throughout the Bill. We have not tabled amendments to this clause to take that on board; however, earlier clauses ought to clarify it more clearly.

Clause 21(5) sets out that healthcare provision and social care provision can be classified as special educational needs if they are,

“made wholly or mainly for the purposes of … education or training”.

However, according to many in the sector, backed up by the legal advice that we have received, there is a concern that the new definition of the phrase “wholly or mainly” sets a higher threshold than that which exists. We have heard from, among others, David Wolfe QC, the adviser mentioned by the noble Lord, Lord Ramsbotham. That is why our amendment would remove “wholly or mainly” from the clause.

The initial draft of the Bill did not include a requirement for educational provision to be wholly or mainly for educational purposes. It stated that anything provided by the health authority was health provision and that anything provided by social care was, similarly, social care provision and therefore not enforceable or appealable to the tribunal. The new wording was introduced as a result of opposition to the initial draft but we still do not feel that it deals with this problem. I think the Minister will be aware that there is considerable concern about this issue, particularly around therapies such as those for speech and language, which may be classed simply as health service provision under this clause and therefore, apart from anything else, not appealable.

In addition, we have also received the following legal advice:

“Following case law dating back to 1989 the general position has been that any provision which is directly related to an educational need can be classified as educational or medical and it is for the tribunal to decide. Guidance has been given that speech and language therapy will normally be considered educational because of its importance in communication, whereas other therapies such as occupational therapy vary according to the type of difficulty the child has and how far the therapy relates to an educational objective. Tribunals have consistently held that where a provision has a beneficial educational aspect, and is directly related to the child’s educational needs, it can be described as educational provision and specified in the statement. This aspect needs to be set out in the current bill if parents’ rights are not to be eroded. The current wording set a higher bar and reduces the rights of the child and parent”.

This issue was raised briefly in the Commons by the Conservative MP Robert Buckland. At the time, the Minister there replied that,

“the clause maintains the existing right of appeal to the tribunal for special educational provision so that parents will not lose their current protections”.—[Official Report, Commons, Children and Families Bill Committee, 19/3/13; col. 372.]

However, this is not what the experts are telling us, so it would be extremely helpful if the Minister could clarify this and work with us to find alternative wording which would ensure that we are not raising the bar and eroding parents’ rights. In his letter to us following Second Reading the noble Lord, Lord Nash, wrote that,

“the Government recognises the concerns and is looking for ways to address them”.

I would be really grateful if he could tell us how far he has got in looking at ways to address these concerns, and whether he would now be prepared to find an alternative form of wording to address this issue.

[Baroness Whitaker (Lab)]

My Lords, I support my noble friend’s amendment very warmly. I think that the wording of the Bill must be changed because, although I understand that the Government consider that they can rely on case law to establish the primacy of the education purpose, their own draft SEN code suggests that more firmness is needed. I quote:

“Health or social care provision made wholly or mainly for the purposes of education or training must be treated as special education provision”.

Noble Lords might say that that is all we are asking, but the fact that they have to put “must” in the code suggests to me that there is an element of doubt. I suggest that certainty is what is required in the law, and the code simply amplifies the law.

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[Baroness Jones of Whitchurch]

My Lords, before I speak to Amendment 127, I should say that I support the amendments tabled by the noble Baroness, Lady Brinton. I pay tribute to the considerable amount of work that she has done in campaigning on the needs of severely bullied children.

As the noble Baroness said, this is a growing and worrying issue. This is backed up by a recent DfE report which identified that 47% of children reported being bullied at age 14, 41% at 15 and 29% at 16. This is a significant proportion of young people. Many report that the bullying is ongoing and for some of them it is an everyday event. There is also growing evidence that this problem particularly affects children with disabilities and special educational needs, who are, apparently, three times as likely to be bullied, with verbal, emotional and physical bullying prevalent. Again this is relevant to the debates that we have had in Committee. As the noble Baroness said, many of these children do not come to the attention of the authorities but some are so traumatised that their behaviour, school attendance and mental health begin to be affected. Figures have been cited of more than 16,000 young people at any one time refusing to attend school.

We support Amendments 74 and 217, which address these issues in a structured and helpful way. They would ensure that the Secretary of State produced a strategy and statutory guidance to prevent bullying, and provide effective recovery programmes for those affected and a temporary SEN statement to access help and support. These amendments, combined with ours, would go a considerable way towards addressing the poor educational provision and lack of consistency in meeting the needs of children temporarily unable or unwilling to attend school.

Our amendment seeks to introduce a new clause to widen out the concerns to cover children who, because they are bullied, suffer from a mental health problem or a medical condition and are unable to attend mainstream school for a period of time. We are attempting to address these widespread concerns. These issues were flagged by our colleagues in the Commons and were mentioned by a number of noble Lords at Second Reading.

In addition to the incidence of bullying, the Teenage Cancer Trust and CLIC Sargent have highlighted the fact that there are 3,600 new cancer diagnoses in children and young people every year, which can also have a significant effect on a child or young person’s education. There are other reasons why children and young people may be absent from school for a long period, including trauma, the loss of a family member or being the victim of violence or abuse at home. These children and young people should not have to suffer because of their experiences. We should do everything we can to ensure that they are able to achieve their full potential. This includes putting in place support systems and ensuring that alternative temporary education provision is as good as it would have been in mainstream education.

In his letter to Peers after Second Reading, the Minister argued that temporary access to SEN status was not the right way forward. He said:

“The definition of Special Educational Needs is deliberately broad, and it must allow local professionals the freedom to make judgements on who it applies to … However, for children who require statements of SEN it rightly takes time to make the appropriate assessments and establish the right provision. We hope and intend that the consequence of bullying can be resolved quickly … As with statements, education, health and care plans are intended for longer-term, more complicated needs, rather than for providing rapid support”.

While we understand that assessments and EHC plans take time, it is important that we also have mechanisms for addressing the needs of those children who have more immediate needs and fewer long-term needs, to make sure they do not fall through the gaps. I was interested that the noble Baroness, Lady Brinton, said this afternoon that temporary statements are indeed available, because that certainly had not been drawn to my attention. Having that spelled out in more detail goes some way towards addressing this issue.

We believe that the amendments spoken to this afternoon provide a suitable package of support for severely bullied children and others temporarily unable to attend school. We hope the Minister will agree to reconsider the Government’s position, and to come up with a scheme that is as good as those amendments put before him today.

[Baroness Walmsley (LD)]

My Lords, I strongly support the amendments of my noble friend Lady Brinton, and would have added my name if I could have been sure of being here today to speak to them. However, here I am, very strongly supporting them.

Many thousands of children fall into the category of “severely bullied” but are invisible, for two reasons. One is that often the bullying takes place outside school, on the internet. The school does not see it happening. Unless school staff look carefully at the attendance record, or the parent is sufficiently distraught to bring it to the school’s attention, the school may not notice what is going on. The other unfortunate aspect is that often these children are quite shy; they take themselves off, rather than put up with it. They become visible to the rest of us only when they attempt suicide, or actually succeed. Then they land on the front page of the local or national newspaper. That is a tragedy.

When the school becomes aware of this problem, it often suggests to the parent that they educate the child at home. This is not the answer. Many parents are not capable, either professionally or economically, and cannot take the time off work to educate the child at home. They need specialist, professional help. Nor is it an answer to send the children to PRUs, for the reason my noble friend Lady Brinton has mentioned. Indeed, I would say it is cruel to expect these children to attend a PRU with a group of children of whom they are often frightened. They are square pegs in round holes in PRUs, because they are often children of great ability, and the provision offered in PRUs will not address their problem and allow them to achieve their academic potential.

Virtual schools can be an answer, but not the whole answer. These children need therapeutic and restorative help from well trained people. That is why my noble friend has suggested that what is needed is temporary special educational needs provision. As to the cost, yes, the sort of provision these children need is expensive, but it lasts for only a short period. If it is done well, many of these children go back into a mainstream school—perhaps a different one—after a relatively short time, during which their confidence has been built up and their mental health problems have been addressed.

If this does not happen, it is not the school that pays but the state that pays later. These children’s potential has not been realised; they do not have the qualifications that they could have; they do not have the well paid jobs that they could have, so do not pay so much tax; and there may be ongoing mental health problems that have to be addressed later in life by the health service. Although the school saves money by not paying for this provision in the short term, the public purse does pay—and, of course, the person who pays most is the child themselves. We have a duty to give these children back their education and indeed their lives. Provision is available, and it could be expanded if only a more sensible approach were taken to ensuring that the funding became available for these children. It is not a lot to ask and, compared to many children who need special needs provision for the whole of their school life—which of course very often they deserve—these children require it for only a very short period. What they need is very special provision from people who really understand what they have gone through and what needs to be put into place to enable them to face an ordinary education again.

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Moved by

[Baroness Jones of Whitchurch]

75: After Clause 21, insert the following new Clause—
“Early-years area SEN co-ordinators
(1) Local authorities must appoint sufficient full-time equivalent members of staff (to be known as “early-years area SEN co-ordinators”) to have responsibility for coordinating provision for children in Ofsted-registered early years settings other than maintained nursery schools.
(2) In assessing sufficiency of staffing levels under subsection (1), the local authority must have regard to—
(a) the number of children with special educational needs in its area registered with early years settings to which subsection (1) applies; (b) the number and geographical location of early years settings to which subsection (1) applies.(3) Regulations may provide for—
(a) further considerations to be made by local authorities in exercising their duties under subsection (1);(b) the specific responsibilities of early-years area SEN co-ordinators.(4) The Secretary of State shall publish guidance to local authorities to assist in exercising their functions under subsection (1).
(5) Local authorities must publish information on the provision of early-years area SEN co-ordinators as part of exercising their duties under section 30 of this Act.”

[Baroness Jones of Whitchurch]

I am covering for my colleague here, so I am doing a double act.

Amendment 75 proposes a new clause, which very much picks up on the point that the noble Lord, Lord Ramsbotham, made in the debate about the importance of early identification. We believe that identifying and supporting children with SEN as early as possible is the most important factor in improving their outcomes, so our new clause would put early years area SENCOs on a statutory basis, like school SENCOs. It would require local authorities to employ enough of them to support all the identified needs locally. Clause 22 requires local authorities to seek to identify children and young people in their area who may have SEN. Our amendment would insert “as early as possible”, which again echoes the points we made in the earlier debate.

The professionals who work with children have a crucial role to play as the first educators with whom those children come into contact. A number of issues such as speech and communication problems, developmental delay, behavioural issues and literacy problems can be better addressed by having a good quality early years provider, meaning that children start school in a much better position than they otherwise would have. Fewer resources would then be required in later years, so the case is well made and cost effective.

However, the early years workforce is typically the least qualified in the education sector, while cuts to local authority budgets have meant that councils have cut their training budgets for early years staff by 40% since the election, resulting in many cutting back on the early years area SENCOs that they previously employed to provide advice and training in early years settings. Yet the support that they provide is now needed more than ever. A recent Communication Trust project, Talk of the Town, evidenced that, across a federation of schools, children and young people’s speech and language needs were underidentified by an average of 40%. The Communication Trust says that it,

“remains concerned over how the Bill will ensure that the mechanisms for identification will work in practice across all educational phases and also on local authorities’ ability to identify needs as early as possible, and to respond to these needs”.

The NDCS, the RNIB and Sense are also concerned that overall proposals do not place sufficient emphasis on the importance of early years support for children with sensory impairments and their families.

Labour tabled these amendments in the Commons. At the time, the Minister said that he would reflect on whether and, if so, how some of the good practice of area SENCOs could be reflected in the code of practice. As I have just hinted, I have only just acquired this brief this afternoon. I have looked at the code of practice and I am struggling to see where that might be. There is certainly reference to maintained nurseries having a role, but nothing that spells out the role that area SENCOs can have with the more diverse group of early years providers. I look forward very much to hearing what the Minister has to say about that, but I hope that we can agree that more can be done within the Bill and the code to emphasise the importance of these early years area SENCOs. I beg to move.

[Lord Ramsbotham]

I rise to support this amendment, and to speak to Amendments 79, 108, 116, 128 and 238. I am glad that the noble Baroness mentioned the importance of assessment and intervention as early as possible, particularly for this area. I was very struck last Wednesday, at a meeting with the Minister, when he confirmed that only just over 10 years ago, 80% of communication between young people was verbal and 20% electronic. That is now reversed, with 80% being electronic and only 20% verbal. We need verbal communication above all to enable us to engage not just with teachers but healthcare workers, family, friends and ultimately with employers and customers. If we are to enable our children to live in today’s world, it is crucial for them to communicate with each other and for those who have to engage with them to help.

Amendment 79 requires schools and registered early years settings to identify special educational needs while offering guidance on how to do so. This is very important because, as we discovered when doing the report, which I have mentioned several times, the health visitors who were doing the early assessment in Northern Ireland were extremely glad that they had been trained to do so by speech and language therapists—not that they could offer therapy, but at least they knew what signs to look for to alert them that somebody had a problem. This is very important, and it is a lesson that should be applied right across the country.

Amendment 108 extends local offers to include access to services for children who are educated in non-maintained early years settings. It should not be restricted only to those with EHC plans, which, for the vast majority of people who have children with speech, language and communication needs, do not make them eligible for any additional support. That is wrong. The people with speech, language and communication needs do need support to enable them to engage. It is not just for those on EHC plans, which, as we know, is a small proportion of the whole.

Amendment 116 requires local authorities to inform parents of what special educational needs and local office support is available to children educated in non-maintained early years settings. This is again something that should not be left to chance because, as we know, there is a vast variety of provision and a vast amount that parents do not know or understand and with which they need help. Somebody has to co-ordinate the giving out of that advice, which suggests that local authorities have a role to play.

Amendment 128 makes local authorities responsible for special educational needs provision to those who have them identified in private, voluntary and independent early years settings, and for establishing the necessary mechanisms to enable and ensure that both identification and provision are available. All those may seem very much the same, but what they are saying collectively is that there is a duty here for the local authorities to make certain that identification and provision are available for all children in the local authority area, whether they are in mainstream or PVI settings. We must not let that go by default.

Amendment 238 highlights something that else that is lacking and is not clear from the Bill. Schedule 4 to the Bill amends the Childcare Act 2006 to require the registration of childminder agencies and certain childcare providers on childcare registers. However, the Bill is currently unclear about the position regarding private, voluntary and independent providers. As nearly 80% of the early years providers come from the private, voluntary or independent sector, this seems to be a gap that needs to be filled. We must ensure that everyone is covered. I am not simply saying that there is a gap; I am trying to suggest that there may be a way out of this. I suggest that all childminder agencies should be required to employ a SENCO, and that all non-maintained providers—that is, all the PVI providers—should be required to register with one of these childminder agencies. In that way, the SENCO can relieve the PVI of what the Government have said that they do not want to do, which is to belabour it with too much bureaucratic work that it has to do. A SENCO with the same status as the others would be able to act as a bridge between these 80% of providers and the local authorities to ensure that every child is covered.

Again, this may sound complicated, but I say to the Minister that the Communication Trust and others, who have thought this through and drafted this amendment, which I am very pleased to put forward for them, are very happy to engage with officials to discuss how this might be provided for, and to make certain that the gap is covered. The Communication Trust includes those working in the area now, and we have contacts with the Local Government Association, which I know would be very happy to contribute.

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[Baroness Jones of Whitchurch]

My Lords, I thank all noble Lords who have spoken in this debate. I think that we all share the common ambition to improve the scope and quality of early years provision and to make sure that special educational needs are identified at the earliest possible time, as we said at the outset. I think that there is common cause there.

In several of the contributions it was asked who should be responsible for some of that identification. We feel that early years area SENCOs in the model that we have proposed could be the people to take on that responsibility, although I understand that everybody else whom noble Lords have mentioned could also play a role in that. That model has already been developed by local authorities as a way of taking on some of that responsibility, and it is important that the people in those posts are properly trained and supported. I was slightly disappointed by what the Minister said about not requiring them to be trained and qualified, because it seems to me that we have already identified a skills lack among some of these people. This is an opportunity to address that lack, and it will be a shame if we do not embrace it when we have the opportunity to do so.

[Baroness Northover]

I am sorry to interrupt the noble Baroness. Of course, these proposals build on what the previous Government decided to do. As I said in my response, that was the arrangement that existed before. However, we have taken it a step further, in that it is in the draft statutory guidance, and I hope that that will be welcomed by noble Lords.

[Baroness Jones of Whitchurch]

I was picking up the particular point about qualifications. As the Minister has already identified, I have not yet read page 70 and I was trying to do a bit of speed-reading. I obviously need to reflect on that in a little more detail before we come back to debate this further in the House and, when I have done some more reading, I shall write to the noble Baroness if I have any more questions. In the mean time, I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

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[Baroness Sharp of Guildford (LD)]

My Lords, Clause 25 is about promoting integration. My amendment is about effecting that integration and,

“co-operation between local authorities, schools, other educational providers and providers of health care and social care”,

but also ensuring that there are sufficient resources for that integration to take place. It is a probing amendment intended to explore issues relating to multiagency working and the local offer. Integration of services, the alignment of assessment processes and co-operation among groups of professionals works only if those same professionals, especially at the early stages of such integration, have time to get together to talk things through.

The pathfinders, which were evaluated in the June document that we have all seen, suggested that attendance by the professionals involved—the teachers, healthcare and social work professionals—was highly variable, many of them pleading that their loads were so great that they had no time to attend the meetings required. However, the reforms will not work unless a realistic approach is taken to recognise those time constraints on the professionals involved, deliberately programming in time for them to build the relationships required. Of course, that means more resources, especially in the early phases of the development of the programme—not an easy prescription at a time when budget cuts are impinging so strongly on local authorities.

The pathfinder evidence also highlights the need to develop a targeted learning and development programme for school lead professionals and/or other key workers. If the unspoken assumption is that all the new expectations will be possible because they can be discharged by school special educational needs co-ordinators, Members of Parliament need to visit SENCOs in their constituencies to ask them about their already unrealistic workloads. It is likely that far fewer teachers will opt to take on the additional responsibilities of being SENCOs if the new reforms are implemented without sufficient resources being allocated.

The question of which agency should take on the role of key workers and lead professionals needs much further explanation. The existing DfE advice about when schools should or should not be the lead professionals is very inadequate. It does not guide schools in how to decide whether they are the most appropriate agency to take on the lead. Teachers report that schools are often inappropriately named as being lead professionals because other agencies cite budget cuts as precluding them from taking the lead. Those nuances currently seem to be ignored in the Bill but could cause a considerable amount of trouble. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, we have two amendments in this group, Amendments 88 and 90B, so I shall speak to them. They would widen the scope of joint commissioning to include all aspects of support that children and young people might need by extending the definition of EHC provision and ensuring that children without EHC plans would also be included in the arrangements. I should add at this point that we support the amendments tabled by the noble Baroness, Lady Sharp, and the noble Lord, Lord Ramsbotham, which would in their own way go further to strengthen the joint commissioning arrangements. I very much agree with the points made by the noble Baroness, Lady Sharp, about resources.

However, before I go on to the substance of our amendments, I should like to ask the Minister about the wording of the entire clause. I should be grateful if she could put on record exactly what the clause means and what it would require local authorities and health bodies to do. I say this because the clause does not seem to be about requiring local authorities to secure services through commissioning; rather, it appears to require them to set up the apparatus through which decisions about commissioning will be taken. Obviously, that is a very great difference. It says that a local authority and partner bodies must make arrangements; it does not say that they must jointly secure provision. It does not even say that they must secure the provision that they have agreed is needed. This is especially important with regard to health, where other legislation can be used to absolve them from improving legislation on the grounds of, for example, cost. So far as I can see, there is no mechanism for anyone to challenge such decisions.

Therefore, the danger is that Clause 26 as it stands simply builds a procedural structure that really does not have any teeth. Furthermore, I cannot see any leverage by which the partner bodies will be accountable for what they decide to commission. We have not tabled any amendments on these points as it would have meant a substantial rewriting of the whole clause, but I would be very grateful if the Minister could address the point about what is intended by the wording and how partner bodies will be held accountable.

I turn to our Amendments 88 and 90B. Our concern is that the needs of families, including those where the child does not have an EHC plan, are met as completely as possible. It is important that the kind of provision subject to joint commissioning is not just the kind that goes directly to the child or young person relating to either special educational provision, healthcare provision or social care provision, but includes support for families to enable them better to support the child and their siblings. Supporting a child with SEN or disabilities can be incredibly stressful for families, and it is important that we assist and support parents and families with the tools to understand and support their child’s special educational needs or disability.

In the Commons, the Minister said that there was nothing precluding joint commissioning arrangements from covering other services for children and young people with or without SEN, and that support for families needing social care services was provided for under Section 17 of the Children Act 2004. He added that the duty in Clause 26 relates to joint commissioning arrangements for children and young people with SEN, and where the services are needed to support the child’s family as part of that package, that might be included in the arrangements.

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[Baroness Jones of Whitchurch]

To recap, I was talking about the support that was given to the families of children with special educational needs. I have referred to the fact that the Minister in the Commons referred people to the Children Act 2004. In summary, our point is that if we are going to have a Bill like this that aims to be transformative, it really should put all the responsibilities in one place. Just saying, “Well, this is already covered in bits of other Bills and guidance here and there”, is not the point at issue. If we think that support for families is important, and I know from other meetings with the Minister that he believes that, they should all be covered in the Bill. That is why we tabled these amendments, because we would like to see all these provisions brought together so that it is clear in the Bill exactly what people’s rights are, including the extension of support to the families of children with special educational needs. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I shall speak to my Amendment 100. Its purpose is to provide encouragement to local authorities to work together to commission services for children and young people with low-incidence needs. For very low-incidence conditions, such as sensory impairment, it may not be appropriate to expect that specialist provision is made available in every local authority area. For that reason, there should be regional support services co-funded by a number of local authorities across the geographical area. The department’s Green Paper on special educational needs and disability stated:

“We know that greater collaboration between local areas can also help local professionals to plan, commission and deliver the best services for children and young people with SEN or who are disabled and their families, as well as helping to secure best value for money … we will explore how we can encourage greater collaboration between local areas”.

The Bill creates new duties on health and education services to work together and collaborate. However, it says little about the importance of joint working across local authority boundaries, despite the obvious potential benefits to services to children with special educational needs. Children with sensory impairments have a low-incidence special educational need and disability, or LISEND. The National Sensory Impairment Partnership, NatSIP, has defined a LISEND as,

“A need which has the potential to have an adverse impact on learning and development unless additional measures are taken to support the child/young person … The prevalence rate is so low that a mainstream setting is unlikely to have sufficient knowledge and experience to meet these requirements. Settings will need to obtain specialist support and advice on how to ensure equitable access and progression (against national standards) … The prevalence rate is so low that any formula for allocating specialist resources for additional needs, which is based on proxy indicators of need, will not reflect the true distribution of children and young people identified as having low incidence SEND”.

Children with a LISEND are a diverse group in terms of their needs and the nature of the support they require. There is often a lack of expertise in those needs in local authorities and/or insufficient capacity. Indeed, although local authorities are required by Section 7 of the 2006 Department of Health deafblind guidance to identify and provide specialist assessments for deafblind children, the identification rate is only three MSI children per 100,000, but Sense figures suggest that the rate should be 31 per 100,000. These figures indicate that local authorities do not have sufficiently qualified assessors, and that deafblind children and young people are receiving generic assessments that fail to address their specific needs. Deafblind children are also not receiving adequate specialist support in many areas. The Consortium for Research into Deaf Education—CRIDE—found that 18% of services employed two or fewer teachers of the deaf, and 8% employed one or fewer teachers of the deaf. Fifteen per cent of services reported that each visiting teacher of the deaf was supporting, on average, 80 or more deaf children, and 7% had a ratio in excess of one to a hundred.

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[Baroness Northover]

The noble Lord made a very cogent case before and my noble friend was sympathetic to what he said. It will always be the case that, at any one time, there will be debate as to what is essential, what ought to be provided and what will best help children or any member of the population, and, therefore, debate about what the NHS or any other provision ought to cover. As I said, the noble Lord made a cogent case and my noble friend responded sympathetically, so it is a matter of let us watch this space. As I have mentioned, the NHS mandate includes a specific objective that children and young people with SEN have access to the services set out in their care plans. I hope that is reassuring.

I have referred to pathfinders and the wording in the clause reflects the fact that the parties involved are expected to follow the arrangements made unless there is good reason to depart from them. Allowing that flexibility will enable partnerships to adapt to accommodate unique circumstances or changing priorities locally which the arrangements may not have anticipated.

Noble Lords may be anxious that this flexibility could mean that partners have to have only some of the arrangements in place before achieving any agreement. I hope I can reassure noble Lords that this is not the case and is certainly not the legal effect of these provisions. Clause 26(4) makes it clear that these partnerships have the clear function of securing the care that children with SEN need. Therefore they must be able to agree a clear course of action in every case. This point is backed up by the new draft SEN code of practice.

There may be other elements that I need to address. I turn to the point that the noble Baroness, Lady Jones, made about transparency. We certainly agree with her point about needing transparency for parents but we do not think that we should replicate other legislation in the Bill. I am sure she will be disappointed about that. The place to bring this together, we feel, is in the code of practice, and that is what we have sought to do. Again, that is something that comes up in legislation all the time: should we make reference to previous Acts or should we include it in the new Bill? We feel that the draft code of practice helps to bring everything together very clearly, and I hope that she will accept that.

[Baroness Jones of Whitchurch]

Earlier the Minister made the point that we do not want lots of detail in the Bill and I think that we all understand that you cannot spell out everything in a Bill. However, we thought our amendments on this issue were rather neat and not full of detail. Our proposals, about providing any other provision deemed necessary to meet the special educational needs of the child or young person, were intended to include the family context and so on. That was not about too much detail—obviously the detail can be spelt out in the code—but it was to provide a route in for families to feel that they were included in the Bill. I take the Minister’s point about not having too much detail but I do not think that our amendment could be found guilty of that.

[Baroness Northover]

I was actually thinking more of my noble friend’s amendment. My noble friend Lady Sharp is always clear and to the point, so far be it from me ever to suggest that she might add detail that was best put elsewhere.

The noble Baroness, Lady Howe, spoke about local authorities working across boundaries. I assure her that we agree that, working together, local authorities can secure more cost-effective, high quality provision for children and young people with the most complex needs. Many authorities already have such arrangements in place and we encourage it through the new draft SEN code of practice, which includes, in section 4.4, a specific section on regional collaboration. As the noble Baroness spells out, it is in local authorities’ interest to do so. The provision stipulated in education, health and care plans will reflect individual need and local authorities will have to ensure that it is provided.

The noble Baroness highlighted effectively how there may be just one or two children with particular needs in one area, and it makes a lot of sense to collaborate with those in other areas. That is why Clause 30 sets out that local offers must cover provision outside the local authority area for children and young people for whom the authority is responsible. Making this an explicit part of the local offer will mean that authorities have to take steps to make these arrangements up front, and allow parents to challenge whether the best arrangements are being made. For specific cases, Clause 31 goes further and requires other local authorities to comply with requests for co-operation, as long as doing so does not compromise their own duties. That provides a further spur for local authorities to consider in advance suitable joint arrangements for providing for children and young people with specific needs.

I hope that I have covered most of the points raised by noble Lords. If I have not, then obviously I will write to them. In the mean time, I hope that the noble Baroness will be prepared to withdraw her amendments.