Children and Families Bill

Baroness Jones of Whitchurch Excerpts

Wednesday 30th October 2013 Grand Committee

[Lord Storey]

My Lords, first, I make a general point. The notion or the policy of a local offer is hugely important as, for the first time, parents and families will know what is available and it will be clear, concise and jargon-free. I have sympathy with most of the amendments that have been tabled but if we read the code of conduct it makes it clear what should happen. What is the local offer? It says clearly in the code of conduct that it must include both local provision and provision outside that particular area, given what is available in other areas. It refers to how it has to be clear, comprehensive and accessible and to engaging parents, children and young people. Hallelujah! It says that it should be easy to understand, and so on. So when the Bill is linked to the code of conduct, many of our concerns are dealt with there. Some word changes in the code would perhaps help it in some way. However, I am very much reassured, since in the code “should” is often replaced by “must”.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Low, for introducing his amendments, to which we have added our names. I speak in support of the amendments and of other noble Lords who have spoken in the debate.

We are all in our own way trying to address one of the fundamental concerns about the impact of Part 3 of the Bill. As a number of noble Lords have said, of course we welcome the principle of a published local offer—it has been widely welcomed by many in the sector—but our concern is what the local offer will mean in practice and what certainty of provision will underpin it. Like many other noble Lords, we feel that there is an urgent need to clarify this to avoid it becoming a wish list of the unobtainable.

In essence, there should be a legal duty on local authorities to provide what is set out in the local offer. As the noble Lord, Lord Low, made clear in moving the amendment, the solution could be relatively simple. Subsection (1) currently states that the local authority must publish information about the provision which it “expects to be available”; our amendment would simply switch that from “expects to be” to “is”. As I say, it is a simple solution. However, it is important because making that change will give those people who are trying to operate in this sector, under these rules, the reassurance that they need.

The document is intended to give parents, children and young people clear information about the local services and support available to them. Of course we welcome giving parents more information, but clarity and accountability are key to this information being effective. The local offer should be a document on which parents can rely and for which the local authority can be held accountable. However, how can we ensure accountability when the statement is one of expectation and ambition?

We also want to ensure minimum standards for the local offer, irrespective of where people live. We will return to that issue in a later debate today.

When this was discussed in the Commons the Minister said that the word “expects” reflects ambition rather than weakness. He said that the local offer will make it clear how parents and young people can complain or appeal if they are unhappy with any of the provisions set out in it so that the matter can be taken up with the service provider concerned. This seems a strange way to go about it. Why rely on an effective appeals system when we should be getting the provision right in the first place? This is particularly so when you consider how difficult it is for people to bring forward an appeal. You need to look only at the recent SEND tribunal statistics to realise some of the difficulties that are being experienced in this regard.

In addition, there is a worrying reliance on the detail of the arrangements to be prescribed in regulation and in the code of practice, which again makes it difficult to challenge. I say to the noble Lord, Lord Storey, that the draft code of practice repeats the get-out clause for local authorities of publishing what they expect to be available. So there is a flaw in the argument about where the information should be held and accessed.

As my noble friend Lady Wilkins said, there is an understandable concern across the sector that at a time of considerable pressure on local authority budgets, with children’s services already being cut back, parents will have no control over the services in the local offer being withdrawn in the future.

I have listened carefully to the issues around personal budgets raised by the noble Baroness, Lady Howarth, and I have a great deal of sympathy with the points that she raises. Our Amendment 180, which we will debate later in the Bill, will tackle these issues in a different way. We are trying to ensure that, rather than rushing into a new regime of personal budgets, with the potential difficulties that the noble Baroness identified, we take time to learn from the pathfinder experience before implementing that section of the Bill. We have to get this right.

We think these amendments are essential to making the local offer a meaningful, substantial service that would genuinely be welcomed by service users. I hope that the Minister will be prepared to reconsider his position on this basis.

--- Later in debate ---

[Baroness Jones of Whitchurch]

My Lords, I shall speak to our Amendment 124 in this group and support the arguments which the noble Lord, Lord Low, has put forward in support of his amendment.

We began this debate about inclusion and access to mainstream education in Committee last week, but I am very pleased to have the opportunity to return to some of those issues. During that debate, the Minister sought to reassure us that duties were already in existence, including under the Equality Act 2010, to prevent discrimination against disabled people and that that addressed some of the issues about which we were concerned. However, I support the amendments that have been tabled by the noble Baroness, Lady Howe, because she has identified some of the remaining contradictions between the Equality Act and some of the duties that this Bill is spelling out. It is important that those issues are bottomed out, and I support her amendments.

We remain concerned that, by agreeing to this wording unamended, we will be introducing a get-out clause which would allow schools to duck out of their responsibilities to provide mainstream education when requested. As the noble Lord, Lord Low, pointed out, Clause 33 places a duty on local authorities to ensure that children and young people with an EHC plan are placed in mainstream education. There are two important caveats. The first is if a place is incompatible with the wishes of the child’s parents or the young person. Obviously we support that caveat. As we have said before, parental choice and the views of young people are crucial in identifying the best educational provision for a particular child.

It seems to us that the second caveat goes against the whole spirit and intent of the Bill. Clause 33(2)(b) provides that local authorities can opt out of providing mainstream education if it is incompatible with,

“the provision of efficient education for others”.

We feel that we should have moved on from that wording at this stage.

The wording raises questions about who defines what level of disruption is incompatible with efficient education. For example, could it be argued that any child with health issues in a school environment could potentially interfere with the efficient education of others? Or could any child whose educational needs required additional attention from a teacher arguably be taking the teacher’s time away from others, thereby affecting their education? How far are we going to apply this wording?

The Minister said that the Equality Act protects against discrimination, but is there not something rather worrying about defining disabled children’s rights by the level of inconvenience that they might cause? Therefore, our amendment would remove that reference and replace it with a much more positive commitment to meet the specific needs of children and young people.

Reference has been made to the draft code of conduct. It appears to me that it adds a further reason why a request for mainstream education could be refused, and that is the incompatibility with the efficient use of resources. As I understand it, this used to be a factor that schools could fall back on, basically arguing that it was too costly to educate children with SEN in mainstream schools. However, it was removed by the previous Government in 2001, so it now appears that we are going backwards, making it more difficult to access mainstream education.

We believe that ensuring that the needs and wishes of children, young people and their families ought to be the only justifiable basis on which they should be placed in a non-mainstream setting. We acknowledge that many mainstream schools still lack the capacity to provide a good education to children with certain learning difficulties and disabilities, but surely the solution is to address those failings in a structured and positive way within a given timetable, not to give those schools an opt-out. However, we have to accept that some schools are reluctant to admit children with special educational needs or to take the steps necessary to modify their facilities, particularly with the pressure of league tables uppermost in their minds. There is no doubt that some academies and free schools are seeking to operate more stringent admissions policies. This comes back to the issues raised by the Equality and Human Rights Commission about the alignment of the reasonable adjustment duty with the duties in the Bill. We need to make sure that they are properly aligned. Our concern is that the provisions in the Bill and the draft code of conduct give schools an excuse not to make any changes.

At Second Reading, this issue was addressed with some passion by several noble Lords, including the noble Baroness, Lady Grey-Thompson. We feel there is a need to address the failings in the Bill and the code in this respect. The Green Paper referred to creating a bias towards inclusion. If we are serious about that, we should remove Clause 33(2)(b). In his letter to Peers after Second Reading, the Minister referred to the fact that the Bill already provides for the wishes of children, young people and their parents to be taken into account and, of course, it does, but that misses the point if their wishes can be overridden by the needs of so-called efficient education for others or the efficient use of resources. I hope the Minister will take these issues seriously and look again at what we believe is increasingly backward-looking wording which goes so far against the spirit and intent of the Bill and that we can come back with a more positive form of words.

[Baroness Howe of Idlicote]

My Lords, I have three amendments in this group, two of them on equality rights. I shall start with Amendment 125, which is a probing amendment regarding a concern of the Association of Educational Psychologists. There are two more amendments later, but I want to deal with this amendment because in answering the Minister may be able to give reassurance.

Currently any child who has special educational needs but does not have a statement must be educated in a mainstream school. There are no exceptions to this duty, which helps ensure that children and young people are not inappropriately placed in special schools. The concern is that Clause 34(3) allows special academies, including free schools, to admit children or young people permanently without them having had their special educational needs statutorily assessed or an EHC plan having been put in place for them. This proposal seems to undermine the principle that a mainstream school must be able to make provision for all children without a statement or plan and for most children with a statement or plan.

Although special academies will need to make it clear through their funding agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice, such as a report from an educational psychologist, the concern is that there is no formal role for the local authority in this process. The worry is that this proposal will make the local authority’s role of planning provision for pupils with SEN, including provision for children and young persons with EHC plans, extremely difficult.

If this proposal went through, there would be a danger that mainstream special schools would be incentivised to persuade parents that their child would be better off in a special school just because they do not want them in their schools. This would take us back to the situation that existed before the Education Act 1981. There could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go. If this clause remains, I would question the point of mainstream places within a special school.

I fear that this proposal would result in medical labels determining whether a child secures a place in a special academy. If a special academy had been set up for a particular type of SEN—for example, SpLD or ASD/Asperger’s—would it result in an increase in the number of children being diagnosed with that condition? How can the Government ensure that there is a framework process so that inappropriate placements do not occur?

There are also concerns about the practical impact on admissions and places. Would decisions be taken solely by schools and parents, and how would educational psychologists’ views be protected and advocated? How would places be allocated within school year groups? If there was parental demand, could the funding agreement be varied to allow more non-EHC plan places? The policy also begs the key question of what the aspiration would be for a child without an EHC plan in a special academy. Would there be an exit plan? Who would set the child targets and ensure that they are making adequate progress?

This amendment has been tabled because it is hoped that the Minister will look again at the proposals and help to allay serious concerns in the SEN sector that this clause could result in children and young people being inappropriately placed in special schools. Ideally, the Association of Educational Psychologists would like to see the clause amended so that special academies are not able to admit children and young people without an EHC plan. I hope that when the Minister replies he will be able to dispel those doubts.

I turn now to Clause 33, which relates to children and young people with education, health and care plans, and Clause 34, which relates to children and young people with special educational needs but no education, health and care plans. Amendment 124A seeks to insert a new subsection in Clause 33 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

Amendment 126A seeks to insert a new subsection in Clause 34 which states:

“This section does not affect the duties of schools imposed by section 85(6) of the Equality Act 2010, which places a duty on the responsible body of a school to make reasonable adjustments for disabled persons”.

The amendments are about ensuring that schools and local authorities are fully aware of the reasonable adjustments duty owed by schools to disabled pupils where the child has special educational needs. Some disabled pupils will have special educational needs and may be receiving support via school-based special educational needs provision or have an educational, health and care plan under the new arrangements. Just because a disabled pupil has special educational needs or an education, health and care plan, it does not take away a school’s duty to make reasonable adjustments for them.