Children and Families Bill

Baroness Wilkins Excerpts

Tuesday 17th December 2013 Lords Chamber

[Baroness Warnock (CB)]

My Lords, I have added my name to the amendment of my noble friend Lord Low for reasons that I think are a worry for everybody who is concerned with Part 3 of the Bill; namely, the lack of clarity as to how children who do not get an EHC plan will be placed, and the processes by which they are placed. This must be a worry for parents with moderately disabled children as well as for people who are concerned with the clarity—as we hope—of the legislation.

I am not a wholehearted, ideological supporter of inclusion for all children. I think that special schools are enormously important, and there was a time when it looked as though we were going to have specialist special schools, beacon special schools and special schools whose expertise would flow over into mainstream schools much more readily than it does at present. Therefore, I am by no means concerned to uphold a view that would end with all children with disabilities being educated in the mainstream. In some cases, it is very difficult to ensure that children with disabilities do not interrupt or destroy the possibility of the education of other children in the school—this, of course, goes particularly for children with behavioural and emotional difficulties.

The Bill needs to be much clearer on how children will be placed within their local authority area if they do not have a plan made out especially for them—I think that that is still a matter of lack of clarity. Parents find it very difficult to make the decisions and choices that the Bill very properly emphasises, because of the difficulty of access to exactly what the ordinary, mainstream school will be able to offer their child. I know that a large number of parents want mainstream education for their children whatever their disabilities, whether they are going to get the best possible education and the best possible chances or not—it is a fixed belief that it is a right for a child to be educated in the mainstream and for parents to make that demand.

Parents who are genuinely interested in finding the right school for their child who has a disability, but may not be severely disabled or have a complex disability that speaks for itself, need the means to make a properly informed choice. That is why I like the wording of my noble friend’s amendment—although I find the grammar rather difficult—and why I strongly support it.

[Baroness Wilkins (Lab)]

My Lords, I speak in strong support of the amendment of the noble Lord, Lord Low, which is set out so comprehensively and to which I added my name. If accepted, it will reassure those of us who are concerned that elements of Part 3 of the Bill could weaken the right of disabled children and young people with SEN to be included in mainstream education. Sadly, the noble Baroness, Lady Campbell of Surbiton, is not able to be in her place today because, like many people, she has a bad cold. But many noble Lords will have heard her give eloquent testimony of the blight that her segregated education laid on her life. It was not necessary, and it is something that has never left her.

It would be welcome if the amendment were further strengthened by extending the duty to post-16 providers, to ensure consistency for disabled learners across the educational experience. Local authorities such as Nottingham, Calderdale and Newham have used such duties to good effect. They have provided specialist support services and training for mainstream schools so that those schools are confident in implementing inclusive educational practice. This has increased the number of disabled children and young people with a wide range of impairments and health conditions being included in mainstream education. But while some local authorities have been proactive in promoting inclusive education at a strategic level, a lot of work still needs to be done to support the development of inclusive education across the country, especially when half of our disabled children and young people with SEN are still being placed in segregated educational provision.

I am very concerned that without an explicit duty, local authorities will become complacent—and, more worryingly, will revert to the practice of investing increasingly limited resources in existing segregated, rather than inclusive, educational provision. For instance, Kent County Council is already investing heavily in special school provision. Nigel Utton, a Kent County Council primary school head teacher and the chair of Heading for Inclusion, is quoted as saying:

“About half the children with statements in Kent are in special schools, with so much resource being targeted at special provision (not to mention the huge transport costs incurred) mainstream schools are left with a very small proportion of the special needs budget. The pressure on mainstream schools to achieve high academic standards, combined with budgetary pressures, is forcing many to not accept children with SEND statements or to persuade parents to leave”.

Such investment in special schools is not compatible with the Government’s Article 24 obligations. One such obligation is to develop and promote inclusive education across the country by building the capacity of mainstream schools to support the inclusion of disabled learners. The situation will only worsen if the Bill, and the draft SEN code of practice, do not include the explicit duty to promote inclusive education practice. I urge noble Lords to support the amendment.

[Baroness Lister of Burtersett (Lab)]

My Lords, I am glad to be able to follow my noble friend, who has made a powerful case. As a member of the Joint Committee on Human Rights, I simply want to put on record my thanks to the noble Lord, Lord Low, for taking the committee’s recommendation forward and for making the case for it so cogently. The committee saw this as a matter of principle. It is a principle that the Government do not disagree with, and I am at a loss as to why they have been so resistant to accepting that it should be in the legislation. I hope that the Minister will think again.

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Moved by

[Baroness Wilkins]

18C: After Clause 22, insert the following new Clause—
“Data on the number of children and young people with special educational needs and disabilities
(1) A local authority in England must publish information annually within the local offer on the number of children and young people in its area who have special educational needs and disabilities.
(2) Information under subsection (1) must be published by type of special educational need and disability.”

[Baroness Wilkins]

My Lords, I hope that the Government will agree to this amendment. Clause 22 requires local authorities to identify children with special educational needs. This amendment would require the local authority to publish these data within its formal offer. I have tabled the amendment because I am concerned about the availability of good-quality data on children with SEN and disabilities. It is an important issue, which could well determine the success of the Government’s proposed reforms.

Accurate data on the number of children in their area is vital for local authorities effectively to plan and deliver services. The draft SEN code of practice, particularly in the section on joint commissioning, outlines the importance of local data sets in identifying the needs of children with SEN and in informing their decision-making. Without good-quality data, it is difficult to see how the Government or local authorities can effectively plan and commission services for children with SEN and disabilities. It also means that we have a very weak basis on which to determine the long-term impact of these changes.

I am pleased to see that the Government will be amending the Bill so that local authorities have a clear duty to identify children with disabilities, as well as those with SEN. However, there is compelling evidence that existing data sets are failing accurately to identify all children with SEN and disabilities. Currently, data from different sources for the same area can vary widely. Using deafness as an example, I know that different figures on the number of deaf children vary by as much as 30,000: according to the disability register, there are 7,500 deaf children; according to the school census, there are 16,000; and, according to the National Deaf Children’s Society’s survey of all 152 local authorities in England, there are 37,500 deaf children.

Sense has also identified a widespread failure accurately to identify numbers of children who are deafblind. In the local authority of Kensington and Chelsea, Sense has found that, according to the prevalence data, there should be around 10 deafblind children. However, the local authority has identified four. How many have been identified by the school census? The answer is none. These children urgently need specialist SEN support, so why is the system not capturing them?

In Grand Committee, the Minister enumerated the various sets of data that are published but failed to acknowledge that the existing data sets are inadequate. For example, the Special Educational Needs in England report does not cover all children with SEN and so misses more than 40% of school-age deaf children. A single data set is needed to bring together all the data from different sources into a format which would ensure well informed commissioning decisions.

It is difficult to see how the Minister’s department will meet the ambitions set out in the Bill unless we have a reliable and single data set that accurately captures all children with an SEN and disability. The current state of affairs cannot be allowed to continue whereby 152 local authorities are left failing correctly to identify and record all children with SEN and disabilities. I hope that the Minister will give the House reassurance that the urgency of this matter is recognised and that work is in hand to ensure that commissioning can rely on accurate data before this Bill comes into force. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I support the amendment tabled by the noble Baroness, Lady Wilkins. Good quality data on children with SEN and disabilities must be in place before we proceed with these reforms. Unless action is taken, there is a clear risk that some children will continue to fall through the net. The department’s draft SEN code of practice acknowledges that issue and specifically highlights the importance of quality data on children with low incidence needs. Given that these children’s needs are relatively less common, there is an even greater need to establish their needs and whether local provision is sufficient to meet them.

However, as the noble Baroness, Lady Wilkins, has pointed out, existing data sets are flawed. The code of practice refers to the disability register. However, in the case of deaf children, I understand that it is identifying only around 7,000 to 8,000 children, whereas other estimates suggest that 40,000 would be closer to the truth. I understand that the department recently published guidance to local authorities on implementation of the new nought to 25 special needs system. In that, the Department for Education asks local strategic leaders to consider what their data tell them about local outcomes for children and young people with SEN.

My concern is that, whatever these data tell them, they are not going to give a reliable or accurate impression of children with SEN because the underlying data sets and systems are so fundamentally flawed. I hope that the Minister will be able to reply positively in support of this amendment or indicate that positive action is being taken to address these concerns.

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[Lord Nash]

My Lords, I would like to thank the noble Baroness, Lady Wilkins, for raising this important issue and noble Lords who have spoken on this matter. I accept noble Lords’ concerns on this. I understand that the noble Baroness’s purpose behind tabling the amendment is to put, as the noble Baroness, Lady Howarth, has said, local authorities and schools in a better position to make good commissioning decisions. Good commissioning is clearly an important underpinning to the reforms that we are making and the Bill already provides for joint commissioning arrangements across education, health and care for the provision that is reasonably required for local children and young people with SEN. That commissioning will be informed by the local joint strategic needs assessment and the data that are already available on these children and young people.

I accept absolutely that good data need to be available to inform commissioning, but I do not think that the local offer is the right place to publish that data. The purpose of the local offer is to set out what provision children, young people and families can expect in their local areas and it is to be used as a vehicle for discussion about the development of local services. It is not designed to publish information on the numbers of children and young people in the area with different types of SEN. It would not be appropriate to clutter up the local offer with such data. We accept that that information will be material to discussions about the development of provision in the local area, but that information is available elsewhere.

The department already collects data from schools and local authorities on the number of children with special educational needs and publishes this annually on the department’s website. This includes data about the number of children by type of special educational need and we will be expanding this information. At present, we publish data by type of need for children at school action plus and with SEN statements. However, as we move to the new system for school-based SEN support, we will also publish data by type of need for children who are currently at school action.

For disabled children, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of, and Schedule 2 to, the Children Act 1989. The draft, new SEN code of practice reminds local authorities of that duty. The department also collects data on children in the early years through the early years census. For post-16, the Education Funding Agency and the Skills Funding Agency also collect data on young people in the further education sector, through the individualised learner record on a range of types of need. Requiring local authorities to publish this data in the local offer would just replicate data that is already available.

So far as bringing together these different data sets into one place is concerned, as I said, I do not believe that the local offer is the appropriate place to do this, and I do not think it is right that central government should impose on local authorities something that they should already be doing. Some local authorities may well be poor at carrying out their duties in this regard, but that is not a legislative issue: it is a matter of practice. We have made it clear in the code that local authorities have this duty.

The noble Lord, Lord Low, talked about incomplete data. It is true that SEN data from the early years census, although available on request, is not routinely published publicly, but we will make sure in future that it will be and will be linked up to the main SEN statistical publication. I assure noble Lords that the department is thinking about what the new arrangements in the Bill imply for data collection and we are seeing where there are possibilities for greater clarity and the joining up of data sets. The post-16 data that are collected by the department, the Education Funding Agency and the Skills Funding Agency are publicly available on a number of websites, and we are looking at ways to bring these together for greater clarity.

Indeed, more generally, we are looking to see how data can be brought together to reflect the new nought to 25 arrangements under the Bill. We will also consider whether there should be a collection of disability data from schools. I would be happy to discuss this further with the noble Baroness and any other noble Lords who are interested. On that basis, I ask the noble Baroness to withdraw her amendment.

[Baroness Wilkins]

My Lords, I thank the Minister for that reply. Unfortunately, agreement has not continued from previous amendments. I thank all other noble Lords who contributed to this debate, but I find the Minister's reply extremely disappointing. He said that the local offer was not the place to put this information and that it would be cluttered up by it. But he then went on to enumerate various forms of collection of the data which fail to recognise that it is the quality of the data that are collected that is so criticised at the moment: it is failing to provide its purpose. It seems key that, without reliable data, local authorities will not be able to commission the services that are needed.

I will read what the Minister has said in Hansard and consider this further. As I said, I am disappointed in his reply, but, for the moment, I beg leave to withdraw the amendment.

Amendment 18C withdrawn