Children and Families Bill

Baroness Sharp of Guildford Excerpts

Tuesday 7th January 2014 Lords Chamber

[Baroness Perry of Southwark (Con)]

My Lords, I can imagine myself as a parent of a child with special educational needs; I have listened to the debate trying to put myself into that person’s shoes. I can imagine taking my child along to discuss with the local education authority what provision could be made and being told, “I am sorry that you may want this, that and the other, and your child may have that particular set of needs, but we’re meeting the minimum standards set down. They do not happen to suit your child, but I’m afraid they are all that we can afford”.

My noble friends Lady Eaton and Lord Storey passionately described the dangers of minimum standards and the stifling of any innovation or adaptability to the local needs of parents and their children. They also described the danger of saying, when money is tight, “We are sorry we can’t help those other parents and children, but we are meeting the minimum standards. That is the regulation, so that is all there is”. You do not encourage response to people’s needs or collaboration between a local authority and the parents and children in its region by regulation and by national minimum standards. You encourage it by leaving local authorities and parents free to talk together.

I note that the Bill carefully states that the comments received from parents and from the local community must be published every year. That is a strong system of accountability, and is much better than trotting out a bit of inspection from time to time and issuing that report. To coin a phrase, it seems a triple lock if parents’ comments about the provision that they receive from the local education authority, with their own deep and often tragic experience of children with special educational needs, must be published in a form that all can see. Local authorities will be required to respond to local needs, and it gets us away from this dreadful idea: “A minimum standard is all that we can afford and therefore, even if it does not suit your child, that is all that you will get”.

[Baroness Sharp of Guildford (LD)]

My Lords, I return to the introduction that the noble Baroness, Lady Howe, gave to Amendment 25E and the issue of accountability. Government Amendment 33C is good so far as it goes, but it puts the onus on parents and young people using the service to police the sufficiency of the local offer. Perhaps my noble friend the Minister could correct me if I were wrong, but so far as I know there is no obligation on local authorities to publish the findings of their own reviews, which, as was emphasised by the noble Baroness, Lady Howe, they are obliged to make under Clause 27. Therefore, there is not the obligation to proactively improve their services that might arise from looking at whether their own reviews were sufficient, and acting on that. That picks up the point made by the noble Baroness, Lady Morris, that there are ways and means whereby innovation comes organically and internally. Equally, she made the point that for most parents there is not the opportunity to move authorities: whether they like it or no, this is the authority that they have to work with.

Again, I pick up the point made by the noble Baroness, Lady Howe, that, when we are talking about special educational needs, we do not mean only the few who have statements and will have the EHC plans now—about 3% of pupils. Something like 15% of pupils are regarded as having special educational needs and are treated under school action and school action plus.

It is now the schools’ responsibility to meet the needs of these pupils. We shall be talking later about the training that is necessary for SENCOs, and so forth. Most schools rely very much indeed on local educational specialists being available. One of the problems with the situation at the moment is that if there is no follow-up on whether or not there is a sufficiency of provision, there is a great danger that local authorities, whose finances, as we know, are being squeezed at present, will not find it necessary to provide outside the needs of those who actually have EHC plans, and that specialists in language, communication and behaviour will not be available to schools for them to be able to recruit to help them with the problems that they meet.

So I am somewhat concerned. As I say, the government amendment is good so far as it goes, but it is unfortunate that it does not follow through to requiring action on the reviews that the local authorities themselves have to make of their own provision.

[Baroness Howarth of Breckland (CB)]

My Lords, I support the noble Baroness, Lady Sharp, in what she was saying. I was rather taken by the government amendment because of its involvement of parents, children and young people themselves, but I could not see the follow-through. What we are looking for is an interrelationship between the legislation, the code and how it is applied and then how that is reported back, so that you have a virtuous circle and you can measure against what you are attempting to do.

In order to do that, you have to have absolute transparency. That is why I am also concerned about the phrase,

“it expects to be available”.

Unless families know with absolute clarity what is available and have some idea of what the local authority might be planning to make available—that might be what the “expects” is trying to achieve—how can they be engaged in a debate with the local authority in some sort of forum to move things forward in an innovative way? Being involved in two charities that work nationally, I know how very different the provision is across the country, but I still have grave anxieties about setting minimum standards, having also worked in a local authority that was strapped for cash in the 1970s, where we looked for any area of legislation where we could move back and save money. At this time, as I have said several times in this debate, we have to be absolutely open with families about what is and is not available. It is only if they are absolutely clear about that within the constraints of the finances that are available that they will be able to campaign, if you like, for an alternative that would better meet their needs. I encourage the Minister to look again at the phrase, “expects to be available”.

I find it far more difficult to know how I would vote on any of the other amendments, recognising the sheer complexity of the discussion that we have been having. I happen to have more faith in local authorities, and believe that if they have the opportunity and the resource they will do their best for the people that they want to serve.

--- Later in debate ---

[Baroness Cumberlege (Con)]

My Lords, I am delighted to be able to support my noble friend on these amendments which remove the requirement for local authorities to have regard to age when making decisions about the education, health and care plans for young people.

Amendment 173, which I proposed in Grand Committee and in which I was supported by the noble Baronesses, Lady Hughes and Lady Jones, aimed to achieve the same end that has been put forward in these amendments. As my noble friend said, it removes Clause 45(4). I applaud the Government for recognising the force of our arguments and for putting forward these very important amendments, which will make a significant difference not only to the Act when it is passed but to the young people concerned, which clearly is the most important part of this amendment.

Like many other noble Lords, I pay a personal tribute to my noble friend Lord Nash, who has been generous in the time he has spent discussing this aspect of the Bill with me and many other noble Lords and in the determination that he has shown to get it right for young people at what many of us consider to be the most important time of transition in their lives. I am very grateful for his recognition that some young people with special educational needs require more time to complete their education beyond the age of 18. Of course, that has now been translated into the amendment in the Bill. This requires local authorities to consider whether the young person requires additional time to complete his or her education or training. That is a very good thing indeed.

My noble friend will know from the amendment that I proposed in Grand Committee that I believe that local authorities should be required to have regard not only to whether education and training outcomes have been achieved but to whether,

“health and social care outcomes have been achieved”.

The Government did not support that amendment. Nevertheless, I welcome the proposed amendments to Clauses 44 and 45 which will require local authorities, when reviewing a plan or considering whether to propose the cessation of an EHC plan, to have regard to whether the education or training outcomes specified have been achieved. Focusing on outcomes is much more important for young people with complex special educational needs. Their chronological age is far less relevant than whether they have achieved the skills that will enable them to make a successful transition to adult life.

I have one remaining concern, however, and a request to my noble friend. I am worried that some people may mistakenly interpret the phrase “education and training outcomes” in too narrow a way and relate these primarily to formal accredited learning and qualifications. I know from my noble friend’s visit to the Chailey Heritage Foundation that he understands that, for some young people with complex needs, the learning educational outcomes they achieve will not be appropriately assessed and recognised through the usual formal accredited qualifications. It would be most unfortunate if local authorities sought to stop EHC plans for young people with complex needs because the outcomes they wanted to achieve post-18 were not ones that could be formally accredited.

The code of practice should be explicit about the full range of educational outcomes that might be legitimately included in an EHC plan. I therefore ask for assurance that the code of practice will make clear that the educational and training outcomes in these clauses will be considered in the wider sense and not restricted to accredited learning or formal qualifications.

[Baroness Sharp of Guildford]

My Lords, my name is attached to many of these amendments and I am delighted to support them all. I also pay tribute to the Minister for having listened to the arguments that we put forward in Committee.

First, it was suggested in Committee that some young people over 18 might not need the help and support they had been getting. That would provide local authorities with an excuse for dropping such support after 18 by using those words “to have regard to age”. Secondly, and perhaps more importantly, it was said that the wording was too flexible. We all know that circumstances can vary enormously and that some young people with SEN are ready by the age of 18 to stand on their own and that—partly thanks to the help and support they have received—they are well able to cope without further support. However, others mature later and need to be given extra help and support. Indeed, they often need to take longer, as the noble Baroness, Lady Cumberlege, indicated, over the process of learning and acquiring skills and qualifications. The Minister agreed with those arguments and stated very clearly in his response that the provision of continuing support was not a matter of age but of whether the young person concerned was ready to move into adult life. He was not prepared to move initially in Committee but he said that he was very willing to meet us. The amendments that he has introduced today very largely meet the points that we made then and show that he has very much heeded those arguments. The new wording introduced today meets our requirements.

The first of the two key amendments is Amendment 34D to Clause 36. The wording,

“have regard to his or her age”,

will be changed to,

“consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training”.

In Amendment 39B to Clause 44, “his or her age” will be omitted and the words,

“whether the educational or training outcomes specified in the plan have been achieved”,

will be inserted. As the revised wording implies, the clear intention is that local authorities should be flexible in their approach, and should above all consider whether the young person has reached a point where they can do without the extra help and support that an EHC plan would give them. It is clear from the various case studies provided to us by those who are anxious to see the wording changed, that many young people need and will benefit from this flexible approach. I again thank the Minister and the Bill team for their readiness to listen to our arguments and to make these changes.

However, there is some unhappiness among those providing education and training to over-18s with special educational needs about the current wording of the draft code of practice. In particular, they think that there is a degree of inconsistency in it. At some points the draft code rightly emphasises—as the wording of the amended Bill does—the needs of the individual, whether the outcomes specified in the EHC plan have been achieved and whether the young person is ready to enter and cope with adulthood. At other times the code seems to point to the cliff edge—that once a young person reaches the age of 18, it is no longer necessary to maintain the plan. Could the Minister and his officials, having now amended the Bill, make sure that the code of practice fully reflects the amendments that we have made?

In general, I reiterate how very grateful those for whom I have been speaking in relation to these issues and I are to the Minister and his officials for listening to us, and for amending the Bill.

[Baroness Howarth of Breckland]

My Lords, I add my thanks and make two brief points. First, this will convey a message to the young people themselves. It is not often that legislation matters to the recipients so directly in sending a message. Transition is a very difficult time for people with special educational needs and severe disabilities. Added to all the difficulties that they have of movement of placement and, often, of changes to the personnel involved in their care, has been the suggestion that their age mattered. To them, it does not matter to the transition that they will make to the adult world, because they are not like everyone else who is 18; they are all difficult, but certainly not like most 18 year-olds. This will mean that, in the words of the noble Baroness, Lady Sharp, the needs of the individual will be met. That is a really important message.

I am concerned, as is the noble Baroness, Lady Cumberlege, about the link to health and social care, because it simply cannot be avoided. I am sure that there will be issues around the code of practice. If you are admitted to a residential college because you have severe learning difficulties and physical disabilities, combined with the residential placement will be a series of health provisions. That will all be part of the package, so you have to have regard to all that as well. The Minister may say that that will come anyway because commissioning will be expected for that—but this is something that still worries a number of providers and families as well as individual youngsters, who need very specialist healthcare in their placements and are concerned that that might not continue beyond their 18th birthday, even if their education does.

--- Later in debate ---

Moved by

[Baroness Sharp of Guildford]

34F: Clause 37, page 31, line 10, leave out subsection (4)

--- Later in debate ---

[Baroness Sharp of Guildford]

My Lords, my name is also attached to the amendment. I endorse what has already been said by the noble Lords, Lord Rix and Lord Low, and by the noble Baroness, Lady Hollins.

As currently drafted in the Bill, special educational provision has to be secured by local authorities. In Committee in the House of Commons, the Government tabled an amendment that places health commissioners under a duty to arrange any health provision set out in the plan. It leaves social care as the only element of an EHC plan that is not enforceable. However, if you create an education, health and care plan, it does not make sense if there is no specific duty to provide the social care services for young people set out in the plan. As the noble Lords, Lord Rix and Lord Low, indicated, there is already provision in Section 2 of the Chronically Sick and Disabled Persons Act 1970 for a specific duty to provide social care services for disabled children.

That picks up on a point made by the noble Baroness, Lady Cumberlege, when we were debating the previous amendment, about her worry that there was no enforcement mechanism to make sure that the social care provisions, which need to be integrated with the education and health provisions, are there. That point has been made time and time again by the noble Baroness, Lady Howarth. It is not logical that we have enforcement mechanisms for education and health but none for social care.

[Baroness Howarth of Breckland]

My Lords, I want briefly to say what I have said several times. If you have a package for education and health, you cannot fail to include the social care element. What I am hoping is that the Minister will give the same answer that he has just given on my previous point—that such provision is contained in the Care Bill. Having looked at the progress made in the way that these services are delivered, that Bill will ensure that the social care element can be provided along with the health element. That is really important because the three are inseparable in the provision of services, particularly for very severely disabled young people. I therefore hope that the answer will be that such provision is already there in another piece of legislation.

--- Later in debate ---

Moved by

[Baroness Sharp of Guildford]

39F: Clause 45, page 35, line 41, leave out subsection (4)

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I warmly support the intent behind the amendment in the names of my noble friends Lady Wilkins, Lady Howe and Lord Low of Dalston. However, as a former chief inspector, I have to admit that I am a little concerned about the confusion between inspection and regulation that is implied within it. Three separate functions are involved in oversight: audit, regulation and inspection. They are all different and are carried out in a different way. An audit can be a largely internal activity. Regulation must involve somebody directing that something has to happen. Inspection, if it is to mean anything, should be both independent and objective and therefore able to consider all the nuances of what is to be inspected. I note with interest that the current lack of accountability, which was described as weak accountability by my noble friend Lady Howe, has already been mentioned many times during the course of this debate.

This amendment is really a plea to the Government to think very carefully about how they are going to ensure oversight of an essential local authority provision, because currently there are no inspectors capable of carrying out that function. I refer the Minister to a precedent which might be followed—namely, the inspections of the safeguarding of children which were carried out by the old Commission for Social Care Inspection, which was abolished by the previous Government. It consisted of inspectors from Ofsted, the prisons inspectorate, the Department for Education and the Audit Commission, because it had a responsibility to look at local government and, of course, healthcare. The reports that were produced on safeguarding children are models that could be followed in this case as they covered many aspects which Ofsted does not have the skill to cover given that it is essentially concerned with education and a lot of the relevant provision concerns either healthcare or social care. Ofsted is not responsible for healthcare and I do not believe that it is very good at social care either.

The other thing that has to be remembered is that when we are talking about special educational needs, we are talking not just about the under-18s who come under the school regime but about the age range of nought to 25, as was mentioned earlier today in connection with detention. Therefore, we have to consider the inspection of local government provision for people other than those at school. The review that has been announced for next spring, carried out by Ofsted, should be stopped as I do not think that it is adequate. What the Government should do is consider very carefully a much wider examination of who is needed to conduct the oversight of all the activities that have been mentioned at various stages of the Bill. Unless they do that, not just the accountability but the oversight of something as important as this, on which we have made so much progress thanks to the way that the Minister has handled the Bill, is in jeopardy of being lost. That would be a tragedy.

[Baroness Sharp of Guildford]

My Lords, I have some sympathy with the amendment. Earlier today we rejected the notion of minimum standards being laid down for local authorities but we made it very clear in that debate that this was a matter for local authorities and that we wanted to see them use their discretion and compete with each other to provide high-quality services for those with special educational needs. Equally, in discussing the local offer, we were concerned not just with those classed as having special educational needs but with the wider community of children who have special educational needs. That is a very large number of children, as has been mentioned already. Some 1.4 million children fall into that category and are served by their schools but depend very much at the moment on local authority services to supplement what the school SENCOs and the school staff can provide.

There is enormous variation between what local authorities do in this regard. Picking up the point made by the noble Lord, Lord Ramsbotham, I believe I am right in saying that Ofsted currently inspects children’s services within local authorities. In so far as it is inspecting children’s services, including protection services, it would not be so difficult for it to take account also of the special educational needs services provided by local authorities. It seems to me that this is not an impossible situation and that the point that the noble Baronesses, Lady Wilkins and Lady Howe, made on accountability, and the need for it, is very important.

[Lord Nash]

My Lords, I am grateful to the noble Baroness, Lady Wilkins, for tabling the amendment. Earlier today we discussed the government amendment to Clause 30(6) to strengthen transparency and accountability for the local offer. Local authorities must publish comments from disabled children and young people, those with SEN and the parents of such children, about the local offer, including the quality of the provision available and about any provision that is not available in their area. We make clear in the draft SEN code that when local authorities publish their response to comments this includes the action local authorities propose to take. Amendment 33C makes this explicit in the Bill. Local authorities cannot simply publish their response to comments but then ignore them. They must say what action they intend to take. As with every other part of the development of the local offer, children, young people and parents will be involved in discussions with local authorities about the action they propose to take.

When we debated the local offer, I emphasised that we are not yet clear about whether inspection is necessarily the best way to encourage a good local offer. I hope that the confirmation that we have asked Ofsted to deliver a study to identify best practice in preparing for the SEN reforms, and consider particularly whether there is a need for an inspection framework to drive improvements, is reassuring. It has been asked to deliver the study this summer, not next spring. I hope, too, that the noble Baroness, Lady Wilkins, is reassured that the study will include local authority specialist services supporting children and young people with special educational needs and those who are disabled, and say how Ofsted intends to monitor those services. The study will focus on the extent to which local areas ensure that children and young people with SEN and those who are disabled are identified and their needs met. It will look for improved outcomes and the satisfaction of parents and young people. It will establish a baseline from which to evaluate progress in implementing the reforms; provide guidance to local authorities about the development of effective practice and advice about aspects requiring further development; and consider how, if required, effective accountability could take place.

The study will consider how local authorities identify and assess social care needs and ensure that those needs are met, look at how local authorities will work with clinical commissioning groups to identify and commission the range and sufficiency of specialist services required to support the needs of children with and without EHC plans, and evaluate the effectiveness of these services. The study will also consider arrangements for personal budgets, transition to EHC plans and how school and college inspection and other inspection activity could provide ongoing information about the effectiveness of the local area’s arrangements.

This is a comprehensive study. Should Ofsted recommend that an inspection framework is needed we would, of course, take that very seriously. If it does not make such a recommendation, we will consider what further action is necessary. I should make it clear that we have not ruled out inspection by Ofsted of local authority support services.

In terms of accountability, schools are ultimately responsible for the progress of all pupils where additional support is needed. Schools should use their best endeavours to ensure that those needs are met. The Ofsted inspection framework introduced in September 2012 places a clear emphasis on meeting the needs of disabled pupils and those with SEN. Inspectors must consider the quality of teaching and the progress made by these pupils. Where a school has a specialist resource base or integrated unit, these are covered as part of the inspection. Ofsted also inspects special schools, which provide support for sensory impaired children and others who may currently have a statement of SEN. This means that any deaf child in a mainstream or specialist school would have their education inspected as part of the Ofsted Section 5 framework. I want to stress that the SEN reforms will provide legal protections for families wanting to challenge councils through their involvement in determining local provisions. Not only do the SEN reforms in the Bill provide legal protections, they will also establish a better system for identifying need and commissioning services across education, health and social care to ensure that services provided match local needs as accurately as possible and so that families do not have to battle to get those services.

Of course, the success of the reforms will depend on changing culture and practice locally. We cannot just pass this Bill, walk away and hope that things happen. I agree entirely with the point made by the noble Lord, Lord Ramsbotham, about ensuring that local authorities perform. That is why my department is monitoring closely the readiness of local areas to implement these reforms in preparation for September 2014. There is already a package of support for implementation delivered and co-ordinated by our strategic delivery partners—the Council for Disabled Children and pathfinder champion lead via the pathfinder support team at Mott MacDonald. The Minister for Children and Families has written to all chief executives of local authorities and clinical commissioning groups about the reforms. We will be monitoring local authorities’ progress in implementing the reforms from September 2014. We will consider what further steps may be needed in the light of this information and the findings of the study being conducted by Ofsted into local authority practice in preparing for and taking forward these reforms. I will certainly ensure that we look at the prior art to which the noble Lord referred and that we take seriously the whole issue of ensuring that delivery happens on the ground.

I hope that I have been able to reassure noble Lords about the measures that we have taken to improve transparency and accountability for the local offer. I also hope that what I have said about the Ofsted study and the approach we will take to monitoring the implementation of the reforms in some way reassures the noble Baroness, Lady Wilkins, that we will consider the issue of inspection carefully once we have the findings from that study, and I urge her to withdraw her amendment.