Children and Families Bill

Baroness Wilkins Excerpts

Monday 4th November 2013 Grand Committee

[Lord Low of Dalston (CB)]

My Lords, I have added my name to Amendments 137, 145, 165 and 173, but I do not propose to speak to them in any detail because we have been on this debate for a good long time. We have heard a number of full and eloquent speeches and I do not wish to go over what noble Lords have said. However, I should like to add a couple of points.

The Government are presumably worried that parents and young people will assume that they have an automatic right to an education, health and care plan up to the age of 25, but that is not something that the Government need to be too worried about. Most young people will not want to stay in education until they are 25. As the noble Lord, Lord Touhig, said, these amendments do not seek a blank cheque for continuing education for all young people to the age of 25 regardless of the type and purpose of the course they are pursuing; rather, they envisage local authorities supporting young people to achieve their agreed education, health and care plan outcomes, allowing them to progress to a job, develop their independent living skills, make an economic contribution to their community and avoid swelling the ranks of those who are not in education, employment or training.

I do not think that age needs to be mentioned at all, as the noble Baroness, Lady Howarth, just said. Most young people will achieve their education, health and care plan outcomes well before the age of 25, as they do now. Young people must have the opportunity to continue their educational programmes to achieve their agreed outcomes in age-appropriate settings in order to make the transition to adulthood, including work and independent living. These amendments will ensure that the existing protections for 16 to 25 year-olds are not lost.

In that connection, Ministers have stated that no one should be worse off as a result of the Bill. Currently, the learning difficulty assessment statutory guidance requires local authorities to maintain learning difficulty assessment and support to allow the young person to achieve their potential in employment and independent living up to the age of 25. That is in part a recognition of the fact that some disabled people may take longer to reach their potential.

The Bill should therefore not derogate from what is provided for in the current learning difficulty assessment guidance. As the noble Baroness, Lady Cumberlege, told us, independent specialist providers support many students who need a longer period to complete their studies or training. Many such providers also have significant numbers of students who become disabled for the first time as they approach adulthood, which obviously delays their educational progress. Decisions about whether to maintain a young person’s education, health and care plan beyond the age of 19 should be based solely on the young person’s progress in relation to their planned outcomes. Their age up to 25 is not the most significant factor. Focusing disproportionately on age will divert attention from supporting the young person to achieve the agreed outcomes in their education, health and care plan, which should be the prime consideration throughout.

[Baroness Wilkins (Lab)]

My Lords, I support Amendment 172 tabled by the noble Baroness, Lady Howe. I will not extend much further this excellent debate. It is very important that the Bill and the accompanying guidance is clear on the need to maintain specialist support when this is needed. It should not simply be cut when a child starts to do well. On this point, it seems that there is an inherent tension in the draft code of practice that needs to be resolved. I would be grateful if the Minister would look into this.

On the one hand, the definition of special educational needs includes children or young people who have a disability which prevents or hinders them from making use of the educational facilities of a kind generally provided for others of the same age. There are some groups of children, such as those who are deaf, to which this particularly applies. The implication is that these children have a special educational need by virtue of the fact that they are in need of specialist support to enable them to access those same educational facilities. However, there are times in the code of practice, from the tone of what is being said, when the reader can be forgiven for thinking that only children who are not making progress should be regarded as having a special educational need. For example, on page 75, it is suggested that SEN specialists should be involved when it becomes apparent that the child is making little or no progress. Many believe that this reflects a tension between the special educational needs framework of supporting children who fall behind and the disability equality framework of taking proactive steps to support disabled children.

Will the Minister look again at this to make sure that it is crystal clear that no local authority should cut support for a child because they are making good progress when it is only because they are receiving that support that they are able to make that good progress? I would also welcome his clarification for the record that children who need specialist support, such as deaf children, should be regarded as having a special educational need regardless of whether they are falling behind or making good progress.

[Lord Nash]

My Lords, I am grateful to all who have spoken in this important debate. I know that we all share the same concern to ensure that young people who need educational provision up to the age of 25 will receive it. I hope that I can offer some reassurance and will be delighted to discuss the matter further with my noble friends Lady Cumberlege and Lady Sharp, the noble Baronesses, Lady Howe and Lady Howarth, and others if that is not the case. I will first respond to those amendments regarding the genuine worry that the various clauses which require local authorities to “have regard” to a young person’s age when they are over 18 will give local authorities the ability to refuse to assess a young person or to cease their plan based solely on age.

From the outset, I would like to state categorically that this concern is unfounded. Local authorities cannot make decisions based on a young person’s age alone. The legislation requires local authorities to maintain EHC plans while it is necessary for special educational provision to be made for the young person in accordance with a plan. The draft code of practice makes this completely clear, stating in Chapter 7 that local authorities must not make decisions based only on the fact that a young person has turned 18.

Let me be clearer still: our vision is for a system that is ambitious for children and young people with special educational needs. There is no hidden agenda to cut costs or to reduce the number of families we want to help. Instead, we want a system that raises the aspirations not only of children, young people and their parents, but of those professionals working with them, and that has high expectations about what children and young people with SEN can achieve. Our ambition is that with the right support and opportunities, many more of these young people will have completed their education and made a successful transition to adulthood at the age of 18, along with their peers. Our vision is that where young people need longer to complete or consolidate their learning, they are able to remain in education and continue to receive co-ordinated help and support through their EHC plan—until the age of 25 if necessary.

What we must not do is create an expectation in law that all young people with SEN will simply stay in formal education until age 25. Creating an automatic right for all young people with EHC plans to remain in education for that long would dilute the focus on outcomes that we want throughout the new system and particularly from year 9 onwards. Local authorities could delay proper consideration of outcomes until after age 18, by which time it is likely to be too late, and many young people will simply drop out of the system at that point, as happens now. Worse, it could create a cliff-edge at age 25, when support would have to end for all those with EHC plans regardless of whether outcomes had been met. Surely the focus must instead be on supporting them to achieve outcomes and make a successful transition to adulthood, wherever possible, along with their peers. We need to end the presumption of failure attached to special educational needs and make sure that local authorities are doing all that they can to help many more children and young people with SEN achieve positive outcomes by age 18.

Turning to the point made by my noble friend Lady Cumberlege about the word “must”, we think that adding it to Clause 45 would serve to create an expectation that all young people with EHC plans should remain in education until after 25. On the question of why we refer to 18, and not 19, a young person aged over 18 has the legal meaning of a person who is aged 19 to 25, and it is our intention for the clause to apply to 19 to 25 year-olds. I hope that that provides some clarification.

The noble Baroness, Lady Howarth, asked why we use the phrase “have regard to age” at all. Following pre-legislative scrutiny, the Education Select Committee stated that there was confusion about whether the Bill created an entitlement for young people with EHC plans to remain in education until 25. It recommended that we make that clear in the Bill. Including the phrase “have regard to age” is our best solution to address that recommendation. It simply requires local authorities to take a young person’s age into account as part of a range of things that they must consider when making decisions. All other suggestions that we have had err on the side of creating a presumption that young people should remain in education until 25 unless certain conditions are met.

Young people with SEN over the age of 18 must be supported to remain in formal education where this will enable them to complete or consolidate their learning, achieve outcomes and make a successful transition to adulthood. Local authorities must, in consultation with young people, consider whether that has already been achieved by the time compulsory participation ends at age 18 or whether the young person needs, and indeed wants, further support through an EHC plan. We have made it clear in the draft assessment and plan regulations and code of practice that the EHC plan process should prepare and support young people for adulthood, facilitating a successful handover to new opportunities and support in the adult world. That transition planning must start from year 9 of a child’s schooling and continue until they have left formal education and made a successful transition to adulthood. This includes enabling young people to access learning opportunities, such as those offered by the Chailey Heritage Foundation, which prepare young people to live more independently. Such opportunities are a vital part of what is needed and I am grateful to my noble friend Lady Cumberlege for enabling me to see at first hand, in an extremely impressive and moving visit to Chailey, what a difference such approaches can make to the lives of those with complex needs.

Not only do our reforms protect the current position for those aged 19 to 25, they go further by creating a legislative requirement for local authorities to focus on outcomes and prepare young people for adulthood. In addition, where young people disagree with decisions made by local authorities, they now have—for the first time—the right to appeal to the tribunal.

It is right that once these educational outcomes have been achieved, local authorities should no longer be required to maintain EHC plans. Young people with ongoing health and social care needs will continue to receive those from the relevant services; that will not stop simply because they no longer have an EHC plan. Young people who have made a successful transition to adulthood and are now in employment, higher education, adult learning and so on will continue to receive support in those settings to enable them to maintain and build on the outcomes achieved while in formal education. For example, Access to Work is available for those in employment, Disabled Students’ Allowances for those in higher education and so on.