Children and Families Bill

Dan Rogerson Excerpts

Tuesday 11th June 2013 Commons Chamber

[Mrs Hodgson]

I am grateful to my right hon. Friend, who quantifies what we all know and believe is the crux of this issue. He has made a very important point.

Amendment 70 seeks to ensure that these reforms cannot be rolled out until such time as the pathfinders have run their course and provided sufficient evidence on the effectiveness of personal budgets that Parliament can be content in allowing the roll-out to go ahead. I hope the Minister will again take it in the spirit in which it is intended and give a commitment to the House that this measure will not be steamrollered through.

We support the switch from statements to education, health and care plans, extending the maximum age of support for young people to 25 to ensure that it covers further education courses and apprenticeships, and the ambition to encourage joint working between different agencies in drawing up those plans and providing the services described in them. However, there are still some concerns that, as worded, the Bill would give local authorities a get-out clause from providing services to enable young people between the age of 19 and 25 to carry on in education, even where they have not yet achieved to the level we might expect for young people without SENs. Those concerns are addressed by amendments 40 to 43, tabled by the hon. Member for South Swindon (Mr Buckland), which we support. I, like him, would be grateful for firmer assurances that prior outcomes, not age, will be the main focus of deciding whether or not to grant or cancel a plan.

My amendments 71 and 72 would ensure that we are measuring the outcomes of young people with plans up to the age of 25 rather than 19, as is currently required under the Special Educational Needs (Information) Act 2008, which is transposed into clause 65. It stands to reason that if we are maintaining support for these young people, we should also know how well that support has helped them. I would be grateful if the Minister committed to how best that might be done within the “special educational needs in England” analysis documents that clause 65 will require the Secretary of State to produce.

Another set of information that should be published as part of the annual report relates to the special educational needs and disability tribunal. I would like parents and campaigners to have access to information on the outcomes and costs to the public purse in tribunal administration and the amount spent by local authorities on legal fees—of the cases that reach that stage—so we can see who the worst offenders are and which local authorities would prefer to pay a lawyer £20,000 to prevent a child from getting £5,000-worth of support. The Minister helpfully pointed me towards some information that was squirreled away on the Ministry of Justice’s website, but as he will know, it is not exactly what I am asking for in this amendment, and in any case the information should be much easier to find and interpret. I therefore hope that he will continue to look at this issue or tell the House why, in an age of transparency, this information should not be available to parents.

We want to reduce as far as possible the current postcode lottery, but still fear that the Government’s plans for local offers, as drafted, could lead to greater disparities in services across the country. We welcome the requirement to compile and publish local offers, but fear that without a baseline expectation from the Department of what should be in them or, indeed, any departmental oversight, they may not be worth the paper they are printed on. As the Education Committee has pointed out, getting local offers right is crucial. If we do not and the services that children and young people need are not provided, we will just see more and more requests for statutory assessments.

Our amendments 66 and 67 would therefore require local offers accurately to reflect what is actually available in the local area, rather than simply what the local authority might say it expects to be available. They would remove the wriggle room that local authorities might have and ensure that they keep the offers under constant review. I hope the issue can be explored further in the other place.

Amendment 69 would require the Secretary of State to set national standards for what the local offers should include. I am no enemy of localism, as the Minister might argue—local offers should absolutely reflect local needs and priorities and be drawn up in consultation with local parent groups. However, if we are to tackle the unwritten postcode lottery, there should surely be a baseline of services that any child or young person anywhere in England should be able to expect. I have said before that local offers may simply codify the unwritten postcode lottery, and that they have the potential to result in a race to the bottom as local authorities look at their budgets and seek to undercut the local offers of their neighbours. I want assurances from the Minister that there will be something—anything—to stop those fears being realised.

[Dan Rogerson (North Cornwall) (LD)]

The phrase “postcode lottery” is well used in all sorts of policy areas, but does the hon. Lady accept that there is a difference between a postcode lottery and a postcode democracy? In other words, where there is democratic accountability it is not, strictly speaking, a lottery, although I accept some of the hon. Lady’s concerns.

[Mrs Hodgson]

I accept that that phraseology is probably not appropriate for this scenario, but it is important that the Government consider a baseline so that we do not end up with different levels of service that can be referred to as a postcode lottery.

Amendment 69 also refers specifically to the participation of children and young people with special educational needs or disabilities as a key outcome that local offers should be geared towards achieving. The Minister made some positive comments about this amendment in Committee, so I would be grateful if he provided an update on his work in order to ensure that the need to help these children and young people make the most of the benefits that information communication can afford them is adequately reflected in the code of practice.

We are also concerned about the lack of clarity from Ministers on what will replace the graduated response to SEN in schools—school action and school action plus—which currently provides support to 17% of pupils. Members may know that the answer will lie in the revised code of practice rather than in the Bill itself, and that is why we have tabled amendments 73, 74 and 75, which seek to ensure that the document is subject to thorough public consultation before a final version is actively approved by Parliament, rather than laid under the negative procedure. I hope the Minister will recognise why we feel that is so important, and commit to tabling Government amendments to that effect in the other place.

In addition to our own amendments, I have also signed a number tabled by the hon. Member for South Swindon. As reflected in his valuable contribution to the Committee’s scrutiny of part 3, the hon. Gentleman has a deep passion for and knowledge of the issues, and I find myself agreeing far more than disagreeing with him, despite the fact that we sit on opposite sides of the House. In particular, we are both extremely keen to see some movement from the Government on clause 69, which states that children and young people in custody should not benefit from the reforms in this part of the Bill.

I feel—and I think the Minister agrees—that this is a massive missed opportunity. Many of the inmates of young offenders institutes will have special educational needs. For example, 18% of young offenders have a statement, compared with just 2% to 3% of the general population. At least 60% will have communication problems and a similar percentage will have literacy and numeracy difficulties. Many of those special educational needs will never have been identified, despite the fact that in many cases they were probably a contributory factor to those people finding themselves in this position. As it stands, they will not be able to continue to receive the support they were already getting if they are placed in custody, and nor will they be eligible for an assessment if someone working with them in the institution thinks they need one.

This is not only counter-productive, in that it will severely limit these institutions’ ability to reduce reoffending through education, which is what we want them to do; it is also overly prescriptive—it prevents local authorities from continuing the support they want to provide to a young person in the hope that it will improve their life chances and steer them away from crime and antisocial behaviour.

I dealt comprehensively in Committee with the reason the Minister gave for why a plan is not suitable in these circumstances—the need to name an educational establishment in the plan—and I hope he has had a chance to look into the role that virtual academies and courses can play, and at the great work the Nisai Virtual Academy is already doing in this area.

Labour voted against clause 30 in Committee and will be tempted to do so again if the hon. Member for South Swindon wishes to test the will of the House, but I sincerely hope the Minister will respond positively and give us both an assurance that the Government will remove the clause at a later stage. If it is not removed, I fear it will face even tougher opposition from the noble Lords in the other place.

The hon. Member for South Swindon has also tabled amendment 37, which was one of the main bones of contention in Committee. I, like him, believe that education, health and care plans should do what they say on the tin and entitle the holder to expect all of the provisions they detail. At the beginning of this process we fear that they will be no better than the statements they are replacing, and simply provide entitlements to education provision. Ministers had said that there was no way of imposing duties on health bodies to keep up their end of the bargain, but the Minister, to his credit, quickly found a way of placing duties on them to deliver what they are expected to, and improved the plans immeasurably in doing so.

One piece of the jigsaw remains, however: the social care element. Once again, we have an opportunity in this Bill vastly to improve the rights of children and young people and their families in accessing the services they need. Amendment 37 would add the finishing touch to education, health and care plans by placing a duty on local authorities to secure the social care provision detailed within them, meaning that those plans would provide families with the certainty and confidence they need. I urge the Minister to find a way to make that happen.

I also support new clause 21, tabled by the hon. Member for South Swindon, on inclusive and accessible services, a subject on which we had a great debate in Committee; his amendment 39, on what constitutes educational support; and amendment 38, which seeks to create a single point of accountability for all three strands of provision within a plan. I look forward to hearing what he has to say about all the new clauses and amendments when he makes what I am sure will be an excellent contribution.

I also support new clause 8, tabled by the hon. Member for Torbay (Mr Sanders), which centres on provision in schools for children with medical conditions, and which I and my colleagues tabled in Committee as new clause 19. Some 29,000 children in our schools have diabetes, 1.1 million have asthma, 60,000 have epilepsy and many more have heart conditions or suffer from regular migraines or the after-effects of meningitis or cancer, as has been mentioned by my hon. Friend the Member for Alyn and Deeside (Mark Tami).

Those children and their parents deserve to know that their school can effectively manage those conditions while they are there; that the child will be given their medication, inhaler or whatever they need whenever they need it; that staff will know when they are being affected by their condition; and that allowances will be made for them where appropriate. We do not have a consistent approach to managing medical conditions in schools as yet, and I agree with the Health Conditions in Schools Alliance that this Bill provides an excellent opportunity for the Government to at least look at how schools support these children and, indeed, at how schools are supported to provide that support. We cannot just expect teachers and school staff to know how to do that as a matter of course. They need help from the NHS, which has the experts.

We want much stronger assurances on all the issues covered by those amendments than we received in Committee. Otherwise, they will be revisited in the other place. I look forward to hearing those assurances when the Minister gets back to his feet.

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[Mr Buckland]

I am grateful to my hon. Friend, because he makes an important umbrella point about the difficulties that could be encountered and that—dare I say it—could be exploited by clever lawyers. I often say that and I have to remind the House that, although I am not sure that I am clever, I must admit that I am of the legal profession. It is proper to concede that point against my profession, because lawyers will be instructed by local authorities that need to conserve their resources and will increasingly look to discharge their statutory duties, but to go no further. We have to avoid the scenario of families having to wait for provision while lawyers dance on the head of a pin over costly and unnecessary arguments.

[Dan Rogerson]

I am grateful for the huge amount of work that the hon. Gentleman has done on this subject during the passage of the Bill and elsewhere. He is making a strong argument for a unified appeals process. There is strong logic, which has been pursued by the Minister and his predecessor, my hon. Friend the Member for Brent Central (Sarah Teather), for bringing the processes together so that families who are looking for support have one point of contact or one meeting to attend. Does the hon. Gentleman agree that if the current tribunal process is not the right way to achieve that, the Government can continue to consider the matter as the evidence comes back from the pilot?

[Mr Buckland]

I am extremely grateful to my hon. Friend for his kind remarks. He makes an important point about a common entry point for families. That is a good start, but more needs to be done to build on it. To be frank, it may not be necessary to do that through primary legislation and the rules of the tribunals might be used. That would be a matter for Her Majesty’s Courts and Tribunals Service. I know my hon. Friend is liaising with counterparts in the Ministry of Justice on other matters that I shall come on to, and I sure he will also give this issue careful and anxious thought.

At the moment, clause 50(4)(a) allows

“other matters relating to EHC plans against which appeals may be brought;”

to be added to the jurisdiction of the tribunal. To be fair to my hon. Friend, there does seem to be a power within the Bill, but it would be wise to go just one furlong further and make it absolutely clear to the families we represent that simplicity is the order of the day when it comes to people’s rights to challenge decisions that—let us not forget this—will affect the life course of the young people we are dealing with.

Let me move on to a rather interesting—well, I hope so—and important matter. Having to admit to being a lawyer is not popular in this House, but words are important and if we change the meaning of something, once again the lawyers will jump all over it. In that spirit, let us consider amendment 39, which relates to the position of current case law, and the synthesis between health care provision, social care provision and education—a point that returns to the comments made by my hon. Friend the Member for Stroud (Neil Carmichael). The Government’s intention seems clear: they wish to replicate current case law when it comes to how local authorities judge their responsibility to make provision in that area. Clause 21 includes the words

“wholly or mainly for the purposes of education”,

and I share the concern that the words “wholly or mainly” set a different and higher threshold than is currently set out in case law. In the 1999 Bromley case, Lord Justice Sedley spoke about a case-by-case analysis of particular applications, rather than a general principle as seems to be suggested by the clause. We should therefore consider a spectrum or range of provision from purely medical to purely educational need. A large number of cases will fall inside that spectrum, bearing in mind the common and well-understood scenario that with a particular need often comes a co-morbid need—a special educational need will often be accompanied by a health need as well.

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Amendment 38 is a repeat of the probing amendment that my hon. Friend the Member for South Swindon moved in Committee and of the proposed new clause 24 tabled by the hon. Member for Washington and Sunderland West. In Committee, I set out the well-established complaint procedures for complaints about health and social care. Widening the tribunal’s remit would not prevent the existing mechanisms from continuing to be available. The effect of the amendment would be to add to the routes of redress, rather than to simplify them. We are preserving the right to appeal to the tribunal about health and social care provision, where that is mainly for the purposes of education and training. While strengthening the role of health and social care in the assessment process and laying a new duty to provide the health provision set out in a plan, we have maintained the focus on special educational provision in the Bill and as was set out in the Green Paper. It is therefore right that the tribunal should continue to focus on dealing with SEN appeals, where its expertise lies.

[Dan Rogerson]

The logic throughout what the Minister has set out has been about bringing together providers to offer one point of contact with families and young people affected. If, as the pilots continue and this policy is brought into effect, it emerges that it might be preferable for there to be some kind of unified appeal process, would there be the mechanism to bring that about subsequently through secondary legislation? Alternatively, for that to happen would it need to be in the Bill?

[Mr Timpson]

My hon. Friend makes a point about the importance to the parents and the young person of having a single point of access into any complaints procedure. That is why we are looking at how there can be a single point of interface for them, providing them with the information and navigation they require to find themselves in the right part of that complaints process. Clearly, as my hon. Friend the Member for South Swindon said, there are tribunal rules in place and there are always practical ways in which we can look at trying to enmesh more clearly together the various strands in the complaints mechanisms. We need to develop that through the pathfinders and, as we hopefully reduce the number of cases that end up in the tribunal system, see whether that has had an effect. We will keep that under close review.

New clause 24, tabled by the hon. Member for Washington and Sunderland West, was discussed in Committee, following which I wrote clarifying what information was already published. The effect of the new clause would be that details were published by individual case. It would not be appropriate to publish information that could identify details of private cases. Clearly, we want to reduce contention. Publishing information on individual cases is likely to extend the contention beyond the delivery of the tribunal’s judgment.

Information would have to be published on the tribunal service and authorities’ costs, and that raises the question whether information would also have to be published on the relative complexity of cases to justify what may be a proportionate expense. The wish to publish information on the cost to authorities may be based on the misapprehension that authorities usually engage legal representation. The most recent figures show that authorities were legally represented at only 15% of hearings, and in most cases authorities would just be providing information on officer time costs. Publishing seemingly simple information on costs without proper context may well lead to greater confusion, therefore, but I have no doubt that the hon. Lady will want to return to that area in due course.

New clause 8, tabled by my hon. Friend the Member for Torbay, and amendment 65, tabled by the hon. Member for Walsall South (Valerie Vaz), both concern children with health conditions. It is right that every child with a long-term health need is entitled to a high-quality education. Their needs must be identified and addressed promptly, so that they can achieve their full potential. Imposing further statutory duties on schools to ensure that is not necessarily the answer, however.

The right hon. Member for Wentworth and Dearne (John Healey), in a powerful and passionate speech, demonstrated an acute knowledge of life as a Minister and the response that he was likely receive as to current provision. The Education Act 2002 already places a duty on the governing body of a maintained school to promote the well-being of pupils and, as the right hon. Gentleman said, schools are already under a duty through the Equality Act 2010 not to discriminate against pupils with long-term health problems that have an adverse effect on their ability to carry out their normal day-to-day activities. Nor should we require schools and further education institutions to request an EHC assessment for everyone with epilepsy or a related condition.

In a recent written answer to a parliamentary question, I announced that the “managing medicines” guidance would be issued this year, which will further clarify schools’ responsibilities. I am confident that it will address the right hon. Gentleman’s concerns. However, I take what he said extremely seriously and will look closely at the details of what he and others have proposed. I would be more than happy to discuss these matters with him as we consider how we can improve practice in our schools, some of which is still below the level that we should be seeing. We know from figures cited by my hon. Friend the Member for Torbay that the number of children affected by conditions that require support in school is not small, so every effort needs to be made to improve practice on the ground.

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[Mrs Hodgson]

I was not in the Department or in position in 2008, but if we raised ratios, I am sure it was done after full consultation and with the support and backing of child care professionals, which is the exact opposite to now. That is the key difference, and I am sure that people out there listening to this debate will know whether that is true and whether that case is a fair comparison.

I sincerely hope that today the Deputy Prime Minister will put his MPs where his mouth is and lead his Liberal Democrat Members into the Aye Lobby with Labour when we seek the opinion of the House on these new clauses shortly, to ensure that in future no Secretary of State can force through, against the will of the House, changes such as those that the Minister has now dropped.

Amendment 76 would require the Government to take the novel step of consulting on the formation of childminder agencies before they legislate to create them. I hope that Ministers will learn the lessons from the furore over ratios. I should say from the outset that I do not have a dogmatic objection to childminder agencies, particularly if they are voluntary. What the Government say they want to achieve through such agencies is all very sensible: greater co-operation and peer support for childminders, as well as access to training and help with gaining bursaries. Childminder agencies will also be a single point of contact for parents who might need a mix of child care solutions. These are all good things that make for a vibrant childminder sector, and are all things that local authority childminder networks and family information services should be providing at the moment. That some of them are not is perhaps down to the devastating cuts to the grant that local authorities previously received from the Department for Education to pay for them.

Since the publication of this Bill, the Department has been consulting on removing many of those duties from local authorities—such as providing training and quality improvement support—and this on top of the attempt in clause 75 to remove the duty to publish child care sufficiency reports, which our amendment 77 would block. All this seems to be a clear sign that the Government want local authorities almost completely removed from the child care equation and that agencies are therefore the preferred configuration for childminders.

Given that the Minister has said that there will be no direct funding from the Government for agencies to provide those services, the implication is that there will be a cost to the childminder. That cost will in turn have to be passed on to the parents, because most childminders do not earn the sort of money that would allow them to soak up the kind of membership fee or commission that we might expect an agency to demand. The most recent childcare costs survey from the Daycare Trust found that childminder fees were already increasing by an average of more than 5%, year on year.

Of course, as all the parent surveys tell us, cost is a secondary issue to quality, and it is the end of individual inspections by Ofsted that is the most worrying reform. Parents really value the fact that their childminder has proved their effectiveness to Ofsted. A National Childminding Association survey last year found that 80% of parents thought that individual inspections were important, and that 75% might not choose a childminder without the reassurance of an individual inspection. Childminders value the inspections too: 80% felt that moving to an agency model of inspection would have a detrimental effect on their professionalism, and they are obviously concerned that this would put parents off using them as well.

Of course we want more childminders to set up—as I said earlier, we have seen the number drop by more than 1,500 since the election—but we should not be trying to achieve that by passing legislation that has the potential fundamentally to change the market, without first consulting on it and establishing consensus. I would therefore welcome assurances from the Minister that the Government will set up such a consultation before the Bill completes its passage through the other place.

[Dan Rogerson]

It is a pleasure to follow the hon. Member for Washington and Sunderland West (Mrs Hodgson), as it enables me to clarify these matters from the perspective of the Liberal Democrat Benches. It was also good to see the Chair of the Education Committee, the hon. Member for Beverley and Holderness (Mr Stuart), back in the Chamber, although he is no longer in his place. He led the charge on many of these issues, although I suspect that he might have been getting a bit of gyp from the old leg, as he seemed uncharacteristically bad tempered.

I shall address my remarks to the new clauses and amendments in this group, as you would expect me to do, Mr Deputy Speaker. I pay tribute to the Under-Secretary of State for Education, the hon. Member for South West Norfolk (Elizabeth Truss) for the way in which she has gone into battle over the use of the taxation system to support the provision of child care. She has come up with a whole package of measures, which we will explore in the course of the debate, and it is a great achievement to have secured some cash from the Treasury. I know that colleagues in my party support her in this. She has gone out there and done this, and I pay tribute to her for her achievement. New clause 10, in putting down this marker in the Bill, represents an important step forward in showing the Government’s commitment to supporting parents who want access to good quality child care in order to allow them to go out to work, and to bring up their families in the way they aspire to.

The hon. Member for Washington and Sunderland West talked about the rising cost of child care, but she could have turned the clock back a bit further to when the previous Government were in power, because those costs rose hugely on their watch as well. This is nothing new; it is a trend that has been going on for some time. I therefore welcome the proposal to set out a framework for investing more public money in supporting the cost of child care for families who need it.

New clauses 6 and 7, tabled by the hon. Lady, cover an issue that has, as the Minister said, been settled for the time being. This Government now have no plans to alter the ratios. They consulted on the proposal, and those who responded to the consultation were fairly overwhelmingly against it. The Government have responded to that. The Minister clearly believes that there is a case to be made for such an alteration, however, and she will continue to make that case in the run-up to the general election if that remains Conservative party policy, but it is not the policy of the coalition Government to introduce such changes now.

That debate will no doubt continue, but I welcome the fact that, on the basis of the consultation, the Government have chosen not to go ahead with the changes. In today’s statement to the House on GCSE reform, the Chair of the Select Committee praised the Secretary of State for listening to the results of that consultation and being persuaded to take a different tack on some aspects of exam reform. The Secretary of State did it in that case, and the Government have also done it in this case. We should not criticise them for that; listening and taking action based on a consultation is the purpose of a consultation. The debate will continue and we will see whether a further case can be made. For the time being, that does not seem to have been the case. It is not only the sector that was concerned about this; parents were, too. If those two important groups are expressing concern, it is very difficult to move ahead with the policy.

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[Dan Rogerson]

It is a pleasure to follow the hon. Member for Washington and Sunderland West (Mrs Hodgson). I pay tribute to the way in which the Bill has largely been approached by shadow Ministers and the constructive way in which she offers her blessing as it proceeds to another place. Ministers have worked hard to make the case for all the important measures in the Bill and have done so successfully.

I was not a member of the Public Bill Committee. Those places rightly went to the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for East Dunbartonshire (Jo Swinson), because of her ministerial responsibilities and my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke), who is not in her place but has a long-standing interest in these matters.

The Bill will make a huge, positive difference to many young people’s lives and those of their families, and bring together the responsibilities of different agencies that are vital to ensuring that those young people have the best possible start in life. I pay tribute to earlier work done on the Bill by my hon. Friend the Member for Brent Central (Sarah Teather), and to the hon. Member for East Worthing and Shoreham (Tim Loughton) for what he did when he was in office.

The Under-Secretary of State for Education, the hon. Member for South West Norfolk (Elizabeth Truss), was at pains to point out that she still believes altering ratios in child care is the right thing to do although there was not a majority across Government for that. Similarly, the Liberal Democrats remain committed to progress on sex and relationships education, although again there is no majority across the Government. It is a measure of how the coalition is holding together by concentrating on where we agree and such issues as supporting adopters and young people with special educational needs that we have made such progress, but I know our noble Friends in another place will want to make a further contribution and perhaps even improve the Bill slightly—if that is possible—before it makes it on to the statute book. I congratulate all those involved in getting the Bill to its current position, and I thank you, Mr Speaker, for allowing me to catch your eye.