Children and Families Bill

Baroness Northover Excerpts

Tuesday 17th December 2013 Lords Chamber

Moved by

[Baroness Northover]

17A: Clause 21, page 20, line 16, leave out subsection (5) and insert—
“(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).”

[Baroness Northover (LD)]

My Lords, I would like to speak to the group containing government Amendment 17A and Amendment 18, tabled by the noble Lord, Lord Ramsbotham. Both amendments seek to set out the circumstances in which provision that would otherwise be health or social care provision should be treated as special educational provision. The Government have consistently given an undertaking to maintain existing protections for parents in the new system. Clause 21(5) was drafted as part of that undertaking. It sought to replicate as far as possible the case law established under the present SEN legislation, which in our view makes it clear that health provision, such as therapies, can be educational, non-educational, or both, depending on the individual child and the nature of the provision. Case law has established, in particular, that since communication is so fundamental in education, in addressing speech and language impairment it should normally be treated as educational provision unless there are exceptional reasons for doing otherwise. We have reflected this in section 7.9 on page 109 of the draft SEN code of practice.

We all share the aim of carrying the current established position through into the new system, but this is complicated legal territory and it has not been straightforward to find the right formulation. We are grateful to the noble Lord, Lord Ramsbotham, for his personal interest here and for his involvement with the Royal College of Speech and Language Therapists, which kindly shared and discussed its legal advice with the department. We have taken that advice into account in drafting government Amendment 17A, which we believe would maintain the position established in case law that we all seek.

In our view, a local authority and, where relevant, a tribunal, in considering whether healthcare provision or social care provision was to be treated as special educational provision, would ask themselves whether it was educational, taking the approach set out in the current SEN code of practice in respect of speech and language therapy. We have carried this into the new landscape of the Bill in relation to education and training. We believe that our wording is expressed a little more simply than the amendment of the noble Lord, Lord Ramsbotham, and that it is consistent with the present approach. I beg to move.

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[Baroness Morgan of Ely (Lab)]

My Lords, I speak in support of Amendment 18 in my name and that of the noble Lord, Lord Ramsbotham.

There are countless examples of parents around the country who have had to fight for special educational provision for their children. Of course, this is much easier to pursue for middle-class, articulate parents compared with those from poorer households, but the need for clarity about what provision is available and who should provide these services is essential for all parents who need extra help for their children, irrespective of background.

The problem is that, rather than clarifying the position on special educational provision and ensuring the Government’s stated intention of carrying the current established position into this Bill, the wording of the clause in the original draft set a higher threshold than that which currently exists—a danger identified by the sector and expert lawyers. Therefore, healthcare provision and social care provision could be defined only as special educational provision if,

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

If the healthcare provision or social care provision did not directly enhance the education or training of the child, it could not be considered to be special educational provision; it would simply be defined as healthcare provision or social care provision.

I shall not go into the details here of why that makes a difference, as those were rehearsed in Committee, but, thankfully, the Government have acknowledged the concerns of Peers and have introduced new wording as a result of opposition to the initial draft. There was still, however, concern around this new wording, which is why the Government have moved even further to amend the language.

We have come a long way on this clause. We are grateful to the Government for that and we would like to recognise the work of the noble Lord, Lord Ramsbotham, the Royal College of Speech and Language Therapists and David Wolfe QC. On the whole, I welcome the fact that, on this issue the Government have listened to our concerns, and I, too, will be happy not to press our amendment.

[Baroness Northover]

My Lords, I thank the noble Countess, Lady Mar, for putting the noble Lord’s case. He is indeed a doughty fighter, as we all know. I am mightily relieved that he is pleased that the Government have put forward this amendment and that he is therefore happy for his amendment not to be moved.

I also thank the noble Baroness, Lady Morgan, for what she has said. I assure the noble Baroness, Lady Howarth, that joint commissioning will ensure that arrangements are in place to cover the financing. I will write to her with all the details.

At this stage of the evening, I am extremely glad that we all appear to agree. Clearly, it will very soon be Christmas.

Amendment 17A agreed.

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Moved by

[Baroness Northover]

18A: Clause 22, page 20, line 24, after “identifies” insert “—
(a) ”

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[Baroness Hughes of Stretford]

My Lords, briefly, I support the amendments, especially Amendment 19. I do so because Clause 26, which deals with joint commissioning arrangements, is an extremely important part of Part 3 and the new apparatus that the Government are constructing. I support the amendments because they are aimed at strengthening the joint commissioning arrangements. They need strengthening because of the wording of the Bill. We discussed this in Committee. Clause 26 seems to provide that local authorities and health and education authorities must set up arrangements so that they can have a discussion about what needs to be provided in an area, but it does not say that they must secure the provision that they think is needed. That is an odd omission. Amendment 19, in particular, would create an obligation to secure the provision for children and young people who have not got the education, health and care plans agreed under Clause 26(3)(a). That is a very important amendment to make to the Bill.

As the clause stands, it says that the local authority and its partner bodies “must make arrangements”. The omission to do with “securing” is particularly important with regard to health. As we said in Committee, potentially they can use other legislation for absolving themselves from improving on the provision available, on the ground of cost. It would be very helpful if the Minister could put on record the Government’s intentions in Clause 26 in relation to securing the provision that is identified as being needed through the joint commissioning arrangements, particularly, but not exclusively, in relation to health.

Given that Amendment 19 seeks to strengthen Clause 26 in relation to that securing and, as the noble Baroness, Lady Sharp, has said, identifies the rather insecure position at the moment of children and young people without plans, I support it and hope that the Government are sympathetic.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Howe, for speaking on behalf of the noble Lord, Lord Ramsbotham, and arguing his case for him. He and I had very useful discussions before he had to leave and I know how reluctant he was to depart. Noble Lords are right: this is a very important issue. These amendments are designed to ensure that those without education, health and care plans can have their needs met and that the joint commissioning arrangements are transparent and effective. We understand the purpose behind that.

It is worth emphasising—and helps me in understanding the provisions here—that I have just come, as it were, from the Department of Health and worked on the health Bill. The NHS is, and continues to be, a universal service. It must respond to the reasonable health needs of the population it serves. That will be an absolute requirement, connected with the fundamental duties on commissioners to meet the health and care needs of children and young people, and supported by the requirements in the National Health Service Act 2006 on CCGs to engage with the public and with professionals and to promote integration of health and social care and health-related services. It is worth remembering, then, the strength of those provisions from the health side when looking at these arrangements.

Joint commissioning is the heart of the new arrangements for SEN. The statutory framework makes local authorities and CCGs working together fundamental to how we meet the needs of children with SEN and disabled children. Working together is not an option; it will be a “must do”, thanks to this Bill.

Our joint commissioning requirements are backed up by powerful statutory accountability. NHS England’s mandate—the “must dos” for the NHS—sets a clear objective that the NHS must ensure that children with special educational needs have access to the services identified in their agreed plan. NHS England will be held to account for delivery of that, and it in turn will hold CCGs to account.

There is also local accountability, as every CCG’s plans and performance are scrutinised by the local health and well-being board. That board has a specific role to improve the health and well-being of the local population and reduce health inequalities. It must include representatives from each local CCG, Healthwatch and the local authority directors for adult social services, children’s services and public health. Those are key people, accountable for local services. They will prepare the joint strategic needs analysis of the population, including this group, at high level.

I hope this helps to reassure noble Lords that the needs of children and young people with SEN and disabilities with and without plans will be met, and that on that basis Amendments 19 and 22 are unnecessary.

The joint commissioning arrangements require that partners across education, health and care work together to deliver integrated services for those with SEN and disabilities. In the draft SEN code of practice we are explicit that arrangements must be established that are clear and robust, including what happens in the event of a dispute between partners, and should be specifically accountable to councillors and senior commissioners locally.

Equally, subsection (4) makes it very clear that partners must be able to reach agreement on a course of action in every case. The wording in the joint commissioning clause reflects the fact that the parties are expected to follow the arrangements unless there is a good reason to depart from them.

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[Baroness Hughes of Stretford]

That is very helpful. Could the Minister clarify subsection (4)? It says:

“Joint commissioning arrangements about securing education, health and care provision must … include arrangements for”,

securing EHC needs assessments. It talks about EHC assessments only and EHC plans only; it does not talk about securing services for children without plans.

[Baroness Northover]

The noble Baroness will note that I have talked about supporting children with and without plans. If she bears in mind the responsibilities within the NHS, the NHS mandate, the responsibilities of the CCGs, what the health and well-being boards are designed to do and the intention within the health service to reduce inequalities and ensure that nobody is left out, and looks at those matters in conjunction with that, I hope she will see that there are very strong provisions coming from the NHS side that help to address this. In a minute, I may give her some more comments from the education side, but I hope she will appreciate that joining up with the NHS is a very positive move forward.

Under this Bill, the local authority is also required to consult on the local offer and when it is keeping its education and social care provision under review. Equally, there are duties on CCGs to ensure they, too, consult with local partners and patient groups, including at the commissioning stage. CCGs are held to account by NHS England for delivering this statutory duty, and NHS England has issued statutory guidance for CCGs on engaging with patients.

The noble Baroness, Lady Howe, made the point that the noble Lord, Lord Ramsbotham, made to me about the role of Nick Hurd and the Cabinet Office taking responsibility for youth strategy—for example, youth clubs and national citizenship services. That is distinct from departmental responsibilities for education, health and social care, which, obviously, are about the best services for young people as well as children. Cross-government working, especially between the Department for Education and the Department of Health, is critical to the success of these reforms. The Cabinet Office has a role to play because of its strategic oversight of support for young people.

I reassure my noble friend Lady Sharp—and this also picks up the point made by the noble Baroness, Lady Hughes—that the provisions in Clause 26 for joint commissioning embrace children and young people without EHC plans, as well as those with such plans. I hope that the noble Baronesses will be reassured by that.

As the noble Lord, Lord Ramsbotham, and I discussed before his departure tonight, the Government are clear that further legislation is not the answer. The noble Lord has identified an important implementation challenge and the noble Baroness made reference to that challenge.

We must indeed ensure that local areas take full advantage of the opportunities offered by the NHS reforms which I have, I hope, spelt out and by the Bill to secure the best possible planning and commissioning of services to meet local needs. Children with SEN and disabilities, who particularly need their health services, schools and local authorities to be joined up, must benefit from this. That is why I propose that instead of pursuing this amendment a better proposition, which is what the noble Lord, Lord Ramsbotham, and I talked about, would be to arrange a meeting with those working on implementation at the Department for Education and the Department of Health. The noble Baroness referred to that meeting; it would also be with the interest groups that the noble Lord mentioned—the noble Baroness mentioned local authorities, which are obviously also relevant here— and would be about what we should be doing to get the implementation right. I was very glad that the noble Lord, Lord Ramsbotham, was enthusiastic about contributing to that. Of course, he has a lot of expertise in this area.

I hope very much that we will go down that route and that instead of pursuing this amendment, we will take forward these discussions about how this is best implemented, while taking on board the issues which noble Lords have flagged up. I hope that I have been able to reassure noble Lords that the joint commissioning arrangements clause offers a strong framework that works with the NHS and will drive forward the SEN reforms locally, for those with and without plans, and that the NHS mandate, with its specific emphasis on inclusivity, addressing inequalities and on children with special needs, helps to underpin this. On that basis I urge the noble Baroness, on behalf of the noble Lord, to withdraw the amendment.

[Baroness Howe of Idlicote]

I am very happy to do so and also to thank the other Members who have taken part in the debate. It was very interesting to hear what the plans are. Thank you.

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[Baroness Morris of Yardley (Lab)]

My Lords, I support the amendment of the noble Countess, Lady Mar. I do not know what the Minister is about to say, so it might not be necessary for me to speak. However, in case we are not entirely satisfied with the Minister’s response, I shall offer a few comments in support now.

We may be missing an opportunity here. There has been a great improvement in blended and online learning over the past few years. A decade ago, I should have been sceptical about an amendment such as this. I should have still wanted almost to squeeze these children into the traditional model of education, which is of course what many of them are rebelling against, and which has failed to meet the needs of many of them. Having visited places like Red Balloon and talked to people who have now become proficient in online and alternative ways of supporting these children, I think the time has come when we ought to acknowledge that it could provide a very important, successful form of education for children whom we have failed in the past. I might not have thought of its fitting into this Bill, but it is an ideal place to acknowledge the growing importance that online and alternative methods of learning are playing in our education system. We ought to seize that opportunity.

My second point is that this fits in with two important aspects of the Government’s education policy. The first is the change needed in the IT curriculum for children in formal education, which the Government have done well to acknowledge. In doing so, they seem to acknowledge that changes in IT and learning are here to stay, and that we need to seize ways—of which this is one—to acknowledge the importance of information technology and digital learning in our education system.

The second, more obvious, fit with government policy is that this is an alternative to mainstream education. Among all the alternative provision, such as free schools, about which I have serious concerns, I see this as finding a way to let innovative education play its part in the education of children—something that we are not good at doing. Whereas I am sceptical about a lot of the ways that the Government are finding to put that innovation into the system, I wish they would seize this. If they were to look seriously at this amendment and touch base, they might see in it, for some children with special educational needs who are rebelling against mainstream education, and for whom mainstream education has never done a decent job, something which holds the key.

I look to the Minister for an acknowledgement of that, and either for this to go in the Bill or for a strong message to go out that this is a good thing which we ought to do all we can to support. Trying to read the Minister’s mind before she has spoken is difficult, but I hope that she is going to be sympathetic, if not in accepting this amendment, in giving a really clear signal that this is good, welcome and deserving of maximum support.

[Baroness Northover]

My Lords, I thank the noble Countess, Lady Mar, for highlighting this area. She has fought long and hard for those with ME, to whose situation she has made reference. In Committee, my noble friend Lord Nash clarified the Government’s position; that the majority of children and young people are best served by attending a mainstream institution. We had a key discussion on this earlier. We do, however, recognise that for some children and young people mainstream education is not appropriate, as both the noble Countess, Lady Mar, and the noble Baroness, Lady Morris, said. The education arranged for these individuals could indeed include the use of online provision as part of a blended package of support. Indeed, I understand that earlier this month, the Nisai Learning Hub was registered as an independent school that will provide alternative provision through a mixture of supported online and face-to-face learning.

Decisions on the use of such provision clearly need to take into account children’s and young people’s academic needs. It is also vital that their social and emotional development is supported, and that their health and safety are protected. Because of that, we believe that local authorities, mainstream institutions or special institutions should remain accountable for these decisions. However, to reinforce the point made by my noble friend Lord Nash in Committee, the provisions in this Bill do not prevent the use of alternative provision, including online and blended learning. I can reassure noble Lords that it can be included within an EHC plan, it can be funded by personal budgets and it can be part of the local offer used to support pupils without an EHC plan.

We appreciate that an underlying aim of these amendments is to highlight the benefits of online and blended learning for certain groups. The noble Countess, Lady Mar, and the noble Baroness, Lady Morris, made their case effectively and powerfully. We do not think that legislation is the appropriate vehicle to achieve this aim, but we shall reflect carefully on how the SEN code of practice and statutory guidance on alternative provision can better support informed decisions on this type of provision—decisions that are based on the best interests of the child or young person.

In doing so, we shall take into account the views of those groups facing particular barriers to mainstream education. The noble Countess highlighted some of these. To this end, I understand that my honourable friend the Minister for Children and Families has agreed to meet the noble Countess, Lady Mar, to hear experiences of the support needed for children and young people with ME. I hope that will be helpful to both sides. I should like to acknowledge the work of the noble Countess, Lady Mar, in supporting the cause of people with this condition.

I hope I have reassured the noble Countess and the noble Baroness that there is sufficient flexibility within the current arrangements to allow for the use of high-quality alternative provision, including online and blended learning, where it is in the best interests of a child or young person. Where there are restrictions, we believe that they offer vital safeguards in relation to the education, wider development and safety of pupils. We shall, however, look at how guidance can be improved so that decisions on the use of online provision are focused on the individual’s particular needs—that is at the heart of this. I therefore urge the noble Countess, Lady Mar, to withdraw her amendment.

[The Countess of Mar]

My Lords, I am grateful to the Minister for replying so kindly. I accept her offer to look at the guidance. I thank the noble Baroness, Lady Morris, for her very powerful support. I beg leave to withdraw the amendment.