Children and Families Bill

Baroness Jones of Whitchurch Excerpts

Tuesday 7th January 2014 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I shall speak to Amendments 30 and 31 standing in my name and in the name of my noble friend Lady Hughes of Stretford and also to Amendment 33D standing in the name of the noble Lord, Lord Low, to which my noble friend Lady Hughes of Stretford has added her name. We also add our support to the amendment proposed by the noble Baroness, Lady Howe, and to the arguments she eloquently made in proposing it. There is a compelling case for local authorities to be expected to take action where education and care provision is judged to be insufficient and it is important that we have adequate means to address that.

Our amendments relate to Clause 30, which introduces the concept of the local offer and places a duty on local authorities to publish the local offer for children and young people with special educational needs, to keep it under review and to revise it periodically. Obviously, we welcome the principle of the local offer, as does most of the sector, but our concern is to make the local offer tangible, accessible and responsive. One concern which our amendments seek to address is that the wording of subsection (1)(a) requires the local authority to set out in the local offer only what it “expects to be available”. We believe that this wording is ambiguous and could be used by local authorities to duck out of their responsibilities to deliver a quality package of services.

Parents, children and young people have expectations that the local offer will be an improvement on what has gone before, but, understandably, they want a more formal understanding with the local authority about the service that they can rely on being provided. Many parents have spent their lives fighting for basic support for their children and are naturally suspicious of wish lists. We believe that our amendments to replace “expects to be available” with “which is available” will give those parents the added guarantees they desperately need.

When this was discussed in Grand Committee the Minister said:

“The local offer should enable local people to see what services are available, how they can be accessed, who provides them and where to go if things do not work out”.—[Official Report, 30/10/13; col. GC 612.]

We agree with that statement. That is what we are all trying to achieve and we believe that our wording is a better reflection of this aspiration than the current wording in the Bill. In Grand Committee the Minister also made the point that families need to be informed about,

“what provision the local authority expects to become available in the near future, possibly from new innovative practices”.—[Official Report, 30/10/13; col. GC 613.]

We very much welcome a culture of innovation in this sector and families will, of course, be interested in being kept informed of newly developing services. This should all be part of a greater commitment to information sharing and dialogue between families and the local authority. However, information about innovation and good practice is very different from the function of the local offer, which should be about what is available to families and what they can access now with some degree of certainty.

The Minister also drew our attention to the draft code of practice, where more detail is provided. Again, it is useful to have this additional information for parents. However, it does not answer our central concern about the status of the local offer and the extent to which it can be relied on. In fact, while the draft code of practice contains good supplementary guidance, it continues to use the phrase that the local authority should provide information about services which it “expects to be available”. Also, as we have debated before, it is important to have the fundamental principles set out in the Bill and we believe that this is a key feature which will give parents, children and young people confidence in services for the future. This is more than an argument about semantics. Our amendment will help to make the local offer a real, living commitment that will help to make the new proposals a success.

My noble friend Lady Hughes of Stretford has also added her name to Amendment 33D standing in the name of the noble Lord, Lord Low, who, I am sure, will speak on it shortly. The amendment seeks to give families confidence in the quality of the local offer by requiring the Secretary of State to lay regulations specifying the standards and quality of education, health and social care provision which local authorities must meet. These regulations would need to be approved by both Houses. In addition, it would require the Secretary of State to issue guidance on how to meet the regulations and publish information on the regulations on the department’s website. The amendment addresses the continuing concern in the sector that services across the UK will be patchy and that a postcode lottery of services will develop. Without the amendment, families will be at the mercy of local authority budgets, with all the uncertainty of provision that already occurs as a result of budget cuts, and so what starts out as a promising new regime of integrated services may quickly descend into a fight to retain any kind of minimum provision. There is the added challenge that there is little incentive for local authorities to develop high-quality provision as it will simply attract clients from other areas, letting the poorer providers off the hook.

Our amendment also addresses the knowledge gap that arises from Clause 21(1)(a), which defines SEN provision in a local area as being relative to all mainstream schools in England. However, without minimum national standards, all a local authority can do is define the offer relative to its own local provision. When we debated this issue in Grand Committee we explored whether setting minimum standards of provision might be the answer, but we accept the limitations of this solution, which is the danger that minimum standards might become the norm. Therefore, our new amendment seeks to address this problem in a different way, allowing scope for services to be different around the UK to meet local and individual needs but nevertheless requiring that they meet overall quality standard benchmarks.

These standards could provide the framework for the Ofsted and CQC inspections currently being considered by the Government and would build on the recommendations of the Ofsted study into how this can be delivered most effectively which is currently taking place. Perhaps the Minister can update us on progress in developing this suggested framework of standards. They would also be a measure against which parents could judge the acceptability of local services if they wish to challenge the provision or ultimately appeal. Therefore, this amendment is the final piece of the jigsaw which will give parents confidence in the new provision and guarantee the success of the new regime, the principles of which, as I have said, we all support.

Finally, I would like to say a few words on the government amendment in this group. In Grand Committee we raised the concern, shared by many, that the obligation on local authorities to publish comments on the local offer from parents, children and young people did not sufficiently hold them to account or require them to be responsive to the views expressed. Giving a more powerful voice to those, often isolated, individuals struggling to access services ought to be at the heart of these improvements. That is why we welcome the government amendment, which would require local authorities to publish the action they intend to take in response to the comments received. However, picking up on the theme of the amendment of the noble Baroness, Lady Howe, there is a further stage to be addressed if we are serious about making change, which is that the local authority should also be required to work with those who have been consulted to produce an action plan to address any identified failings.

It would be helpful if the Minister could explain how this additional challenge will be addressed. It may be that the requirements could be included in the regulations, but we need to be assured before we make a final decision today that the Government are addressing this issue and the concerns raised by the noble Baroness, Lady Howe.

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[Lord Pearson of Rannoch (UKIP)]

My Lords, perhaps I may just caution—I think that the noble Baroness has just touched on this—that it is all very well asking children and young people to take decisions but if there is any doubt that they are capable of taking those decisions in their own best interests then it is very important to consult the family, especially when the family is a supportive one. Your Lordships will know that I speak from personal experience on this subject.

[Baroness Jones of Whitchurch]

Very briefly, we also welcome the fact that the Government have recognised that children need to be involved in decision-making that affects their lives and, as the noble Baroness, Lady Howe, has said, this is in keeping with UN Convention on the Rights of the Child and was clearly set out in Clause 19. It was Clause 32, however, where there was an inconsistency in this approach and this was where we had tabled amendments to ensure that the clause also included the right for children to be involved in decision-making. It was this inconsistency that we were keen to address. We are very pleased to hear from the Minister that the Government are now prepared to amend the Bill to rectify that inconsistency.

However, there is still an ongoing issue about the wording in the code of practice and the regulations that sets out local authorities’ responsibility to involve children and young people in decision-making. Unfortunately, these documents still do not consistently reflect the framework set out in Clause 19. Therefore, although I welcome the steps that the Minister and the Government have taken on this matter, it would be helpful if the Minister could also confirm, in the spirit of the previous debate, that the regulations will be updated to ensure that those rights of the child are consistent throughout the Bill. With that challenge back to her, we very much welcome the amendment.

[Baroness Northover]

My Lords, I thank noble Lords for their welcome for these amendments, particularly the noble Baronesses, Lady Howe and Lady Howarth, and my noble friend Lady Walmsley. I understand what the noble Baroness, Lady Howarth, and others have said about implementation and, as the noble Baroness put it, the form and method of delivery. We certainly take her points.

I remind the noble Lord, Lord Pearson, that this is about the provision of information and the participation of children where appropriate, as I said in my introductory remarks. I am sure that the code will be carefully examined to ensure that it is consistent with the decisions made on Report, as evidenced by these amendments. I hope that noble Lords will be willing to support these amendments.

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[Baroness Jones of Whitchurch]

My Lords, I support these amendments in the name of the noble Lord, Lord Addington. I echo the comments that have been made about his diligence and determination in pursuing these issues. He has today, in his usual style, made a compelling case for the quality of special educational needs co-ordinators in schools to be ensured though appropriate professional development and training, and for all teachers to undergo an SEN module.

That would ensure that all teachers were aware of the range of SEN characteristics that could be identified and the range of services available to support and assist all young children. It would also avoid the SEN responsibility being given to a member of staff who was not prepared to undergo the training to carry out the functions seriously. In other words, it would protect children from the possibility of it becoming a box-ticking exercise in which the school could claim that the requirement had been met without anyone with the requisite skills actually being available. We feel that this ought anyway to be a feature that Ofsted routinely inspects in schools.

We rehearsed these arguments in Grand Committee, and the case was well made then for the importance of early identification and intervention to support children with special educational needs; that can make all the difference to the child’s subsequent education and life chances. The requirement in the Bill to have a comprehensive range of SEN co-ordinators is of course a good step forward, which we welcome, but these amendments would build in the extra requirement for skills and quality, which we also think are important.

The Bill talks of possible regulations in this area and obviously some of the detail of these requirements could, quite rightly, be included in regulation. However, the principle of qualifications and training for what is a specialist field is too important simply to be left to regulation, so we support this requirement being in the Bill and hope that the Minister will be able to reassure us that this will be the case.

[Lord Nash]

My Lords, I thank my noble friend Lord Addington for tabling these amendments and leading the debate on this important issue of ensuring that schools and other institutions have the right expertise within their workforce to support children and young people with special educational needs. I cannot disagree with my noble friend’s intentions. Ensuring that we have a well trained workforce is essential, and is something that this Government are committed to doing. I hope that I can reassure my noble friend that it is possible to achieve this aim without placing requirements in the Bill.

Schools and other institutions that support children and young people with SEN must build the appropriate skills for their staff, and the draft 0-25 SEN code of practice makes that clear. Chapter 6 of the draft code requires schools to make sure that teachers’ ability to meet SEN is included in the school’s approach to professional development and in their performance management arrangements for all teaching and support staff. The chapter also requires schools to review teachers’ understanding of strategies to identify and support vulnerable pupils, and their knowledge of the special educational needs most frequently encountered. This would particularly cover issues such as dyslexia, which my noble friend has spoken passionately about on a number of occasions.

I mentioned in Committee that the latest newly qualified teacher survey, which at that point had not yet been published but was nevertheless giving off strong signals, reveals that teachers feel that the quality of their training in SEN has improved significantly in recent years. Just 5% of newly qualified teachers surveyed this year rated their training in SEN as poor, while 69% of primary teachers and 74% of secondary teachers rated their training as good or very good in helping them to teach pupils with SEN. That compares to as few as 45% in secondary in 2008. I am sure that noble Lords will agree that this is a significant improvement, and I am sure that we all welcome it.

Furthermore, initial teacher training courses must ensure that they enable trainee teachers to meet the Teachers’ Standards. These standards define the minimum level of practice required of teachers, and no trainee should be recommended for qualified teacher status until they have met those standards. Teachers’ performance is then judged against these standards throughout their career.

The Teachers’ Standards state that teachers must,

“have a clear understanding of the needs of all pupils, including those with special educational needs”.

Teachers must also be able to adapt teaching to the needs of all pupils, and have an understanding of the factors that can inhibit learning and how to overcome them. Of course, noble Lords will know that this Government have a strong drive to have more ITT in schools, and many more teachers are now coming through who have been trained in SCITTs, some of whom are at special schools particularly appropriate for training teachers in SEN.

Ofsted has an important role here as well. It inspects both the quality of initial teacher training and the quality of teaching in our schools. These standards and the ability to adapt teaching to meet special educational needs are central to these inspections.

With regard to further education, chapter 6 of the draft 0-25 code of practice sets out that colleges should ensure their curriculum staff are able to develop their skills and knowledge, and that colleges should have access to specialist skills and support when required to help students with SEN to progress. As autonomous bodies, FE colleges are responsible for ensuring that their staff are properly equipped. To support the development of the FE workforce, we are investing £1 million for the existing workforce to undertake the specialist diploma in teaching disabled learners. We are also providing initial teacher-training bursaries of up to £9,000 to help to attract high-calibre graduates to specialise in teaching students with SEN in FE.

Schools and other institutions have very clear duties to ensure that their staff are equipped to support children and young people with SEN. I do not think that it is necessary to introduce a skills audit in addition to these very clear requirements. The Department for Education is funding a range of specialist organisations covering autism, communications needs and dyslexia to provide information and advice to schools on implementing our reforms. The Dyslexia-SpLD Trust, for example, is providing an online professional development tool for teachers to help to assess their current knowledge of dyslexia and access further training. It will also be providing a toolkit to help teachers to identify and respond to literacy difficulties and dyslexia.

I hope that I have made clear that the Government recognise the importance of good teaching for pupils with SEN and that, through the changes in the code and the requirements of the Teachers’ Standards, there are clear requirements on all schools.

I turn to Amendment 46A. When Clause 63 was debated in Committee, I made clear that the appropriate regulations—the Special Educational Needs (SEN co-ordinators) Regulations—continue to require that the SENCO is a qualified teacher, and that SENCOs new to the role must study for the National Award in SEN Co-ordination. This should ensure that SENCOs have a thorough grounding in the knowledge and skills that are required for the role.

My noble friend Lord Addington’s amendment would go further than that in requiring that these skills are kept up to date and that schools ensure that their SENCO has adequate support and opportunities for training. I entirely agree with that aim but do not believe that the amendment is the best way to achieve it. Schools could fulfil the proposed requirement by providing the bare minimum opportunity for further training, and I fear that it would fall short of my noble friend’s intention.

Instead, I propose revising the section of the SEN code of practice that deals with the SENCO role. We will set out that schools “should ensure that the SENCO has sufficient time, training and resources” to carry out their role. This will place an ongoing expectation on schools to ensure that the SENCO is sufficiently supported and trained. As qualified teachers, SENCOs are also judged against the Teachers’ Standards. The code of practice already makes clear that the quality of teaching for pupils with SEN should be,

“a core part of the school’s performance management arrangements and its approach to professional development for all teaching and support staff”.

I hope my noble friend would agree that, taken together, this should deliver what he is seeking to achieve.

On the point made by the noble Baroness, Lady Howarth, about governance, since I came into office governance has been at the top of my list of priorities. As things stand, it is true that governing bodies should have a governor with specialist responsibility for SEN.

I hope that I have reassured the House and my noble friend that the Government are committed to ensuring that our teaching workforce is well trained in identifying and supporting children and young people with SEN. Continual professional development and training is essential for the whole workforce but it is particularly important for the role of the SENCO and, as I have said, I am committed to ensuring that the code of practice goes further than before to adequately reflect that. On that basis, I urge my noble friend to withdraw his amendment.

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[Baroness Jones of Whitchurch]

My Lords, we are very grateful to the noble Lord, Lord Addington, for raising these concerns about the access of apprenticeship trainees to SEN support. As he pointed out, they already have some entitlements that were laid down in previous legislation, but the rights and provisions are not being supplied consistently. This is leading to otherwise excellent trainees failing particular modules of their training because their learning support needs have not been properly identified. It seems that once again apprenticeships are in danger of being the poor relation in the education hierarchy.

There are two ways that these inconsistencies can be addressed. First, all employers and trainers need to be aware of their responsibilities to make proper provision. This echoes the point the noble Lord is raising here. Secondly, apprentices themselves should have greater awareness of their rights, how to access the help they need and how to appeal if they are unhappy with the provision made.

These amendments go some way to addressing these issues. Amendment 46D deals more specifically with the testing regime. We would expect apprentices with SEN to have their needs identified at an early stage rather than waiting until they have failed a component. However, we would also expect provision to be made for an appeal if the failure is felt to be caused by inadequate support for their special educational needs. I very much endorse the arguments the noble Lord made and hope that the Minister will be able to provide reassurance today that these issues are being addressed so that no young apprentice will suffer because of inadequate support for their learning and skills needs.

[Lord Nash]

My Lords, progress on this issue has been far too slow, and I am very concerned that some individuals have been denied the reasonable adjustments that could have helped them to demonstrate what they know or can do, and subsequently to achieve an apprenticeship.

I thank my noble friend Lord Addington for bringing this very important issue to the attention of the House. He has been an assiduous campaigner for children and young people with dyslexia, and I pay tribute to the way in which he has presented his concerns in this House, particularly during Grand Committee debates. I pay tribute to his passion and persistence. Saying that I managed by my letter to take the wind out of his sails is high praise indeed. I want to take this opportunity to clarify the system allowing reasonable adjustments to qualifications and appeals, and I hope I will be able to reassure him that additional action will happen with an urgency that has been lacking.

As my noble friend knows from our discussions, I share his desire to see reasonable adjustments offered to all young people on an apprenticeship who need them, so that they have a reasonable opportunity to achieve the required qualifications in English and maths. I want to take this opportunity to clarify the clear duty in Part 6 of the Equality Act 2010 on learning providers and awarding organisations to make reasonable adjustments so that disabled people are, wherever possible, not put at a disadvantage compared to other learners. I share my noble friend’s concern that this duty should be applied in every relevant case.

Where a body breaches this duty, individuals may bring a challenge in a county court. The county court can grant any remedy which the High Court could grant in proceedings in tort or in a claim for judicial review. Available sanctions include damages, injunctions and a declaration. In addition, repeated breaches may lead us to challenge the body’s ability to deliver training or to award qualifications. Following the important points that my noble friend Lord Addington made in Grand Committee, I am pleased to be able to place on record that there is nothing in the Apprenticeships, Skills, Children and Learning Act, or in the associated specification for apprenticeship standards in England, that prevents the use of assistive technology for functional skills qualifications.

I am aware that Ofqual has for some time been working with awarding organisations and the British Dyslexia Association to continue to widen opportunities to use assistive technology as a reasonable adjustment. The Access Consultation Forum meets three to four times a year. The next meeting is on 30 January, and this will be on the agenda. Ofqual assures me that it takes the issue of equality very seriously. I understand that the BDA and my noble friend have examples of individuals who have been disadvantaged, and I invite them to provide details of the specific cases to Ofqual, via officials if that would be helpful. Ofqual has committed to investigate the circumstances of all these cases. In addition, we will include new text in the skills funding statement to remind education and training providers of their duty to support young people with learning difficulties or disabilities and of their responsibility for providing reasonable adjustments, including the use of assistive technology where appropriate.

I also agree with my noble friend that we can do more to provide straightforward advice and information on the support available to individuals with learning difficulties or disabilities, so that they understand their rights and can challenge appropriately if they are not properly supported. Noble Lords will be aware that I wrote to the noble Lord, Lord Addington—as he mentioned—on 2 December and committed in that letter to some additional steps to raise awareness of the support on offer.

I know that my noble friend is also concerned that young people should make a good transition out of school and into their next stage of learning. The system that we are replacing has not always served young people well in this respect. The nought to 25 system created by the Bill will ensure a much greater continuity of support between different phases and types of learning. Local authorities will be under a duty to identify all young people aged up to 25 in their area who have, or may have, special educational needs, and to consider whether local provision is sufficient to meet their needs. They may publish a local offer setting out the full range of post-16 education and training provision, including apprenticeships. Young people who need the most support will receive an EHC plan regardless of whether they stay at school, go to FE college or to work-based provision in the private sector, unlike the current disjointed system.

The new nought to 25 code of practice is clear about how schools and colleges should focus much more strongly on helping children and young people prepare for their transition into post-16 education and on to adult life. Chapter 6 states:

“Schools should help pupils to start planning for their future adult life as early as possible, and by Year 9 at the latest”.

This should of course include,

“the range of post-16 options which may be available”.

The draft code also explains the importance of a school sharing information about a pupil’s special educational needs with the college before the young person starts. As a result of my noble friend’s recent appeal, we are working with the Dyslexia Trust to produce clear information explaining the support available to apprentices with learning difficulties or disabilities. This will be made available through the National Apprenticeship Service website and will also include information about assistive technology and reasonable adjustments.

In response to the concerns raised by the noble Lord, Lord Addington, I also asked officials to look into the process of complaints, retakes and appeals to ensure that it is as fair and transparent as possible. Although a process is in place and is consistent with other national qualifications such as GCSEs, I believe that more could be done by centres and training providers to publicise it. My officials checked several apprenticeship provider websites, and, although there were examples of good practice, many do not provide details of their procedures. This contrasts with information on school or university websites, where it is generally very clear how to get advice about support or exam results, and about how to complain. I will ask officials as a priority to find a way to ensure that centres and provider websites publish good information about complaints and appeals on their websites in future. I hope that my noble friend will recognise that, taken together, these measures represent improvements for those undertaking apprenticeships. I hope also that the House will acknowledge the outstanding personal commitment that the noble Lord, Lord Addington, had demonstrated in bringing this about.

I move now to historic appeals for those who failed key skills tests because of failures to make reasonable adjustments. As noble Lords may know, key skills qualifications have been replaced by functional skills qualifications. The last possible date for certification was in 2013. Key skills were phased out very gradually, allowing plenty of opportunities for learners to resit them. Nevertheless, as my noble friend has so eloquently set out, we cannot ignore cases where there is evidence that legal duties have not been adhered to. I have therefore asked officials to work with the British Dyslexia Association and Ofqual to gather evidence and seek a solution to any issues identified, whether current or historic. Officials will be able to advise on specific cases or systemic issues.

I will now make a further specific commitment. Where an apprentice with learning difficulties or disabilities has previously completed all other requirements of a particular apprenticeship, but was not able to pass a key skills qualification, for example because reasonable adjustments were not made, they will be able to sit the alternative functional skills test. They will be entitled to the appropriate support and reasonable adjustments. If this test is passed at the appropriate level, the Government will enable the individual to receive an apprenticeship certificate, even if a year or two has elapsed.

I hope that this will reassure noble Lords that the issue is of great concern to the Government and that we are taking substantial and appropriate action to address it. I am grateful to my noble friend Lord Addington for his work, as I have already said, and I hope that with these assurances he will feel able to withdraw his amendment.