Special Educational Needs and Disability Code of Practice: 0 to 25 years

Lord Addington Excerpts

Monday 28th July 2014 Grand Committee

[Baroness Howe of Idlicote (CB)]

My Lords, it is always a great pleasure to follow the noble Lord, Lord Ramsbotham. As usual, he has picked on an aspect—the “must”, as it were—and it will be very important to see how that is put into effect. I am grateful to the Minister for putting his case, and what has been achieved so far, albeit that there is still some way to go.

I ask the Minister to provide assurance on three important matters relating to the changes to the special educational needs framework and the code of practice. First, what progress has been made by Ofsted in its review of the need for an inspection framework to drive improvements in local SEN provision and the local offer? That was announced earlier this year by the Minister when we were considering the Children and Families Bill, which is now an Act. We were told that a report would be published this summer. Can the Minister confirm that that is still the intention and, if not, when the report is expected? A number of charities, including the National Deaf Children’s Society, question the wisdom of passing a new code of practice without taking meaningful steps to ensure that local authorities follow it. The absence of a proper accountability framework surrounding the SEN framework remains a fundamental concern to many.

Secondly, while the code refers to “0 to 25” on the cover, as we all recall, it does not apply to disabled students in higher education. When this issue was raised in our debates on the Children and Families Bill, we were told that the SEN framework did not need to apply to higher education because a separate scheme of Disabled Students’ Allowance already ensures that the necessary support is provided. However, in April, the Department for Business, Innovation and Skills announced a “rebalancing” of support from DSA to universities. Although the details are still sketchy, I understand that some support will no longer be provided by DSA and that universities will be expected to provide it instead. It remains unclear what rights a disabled student at university will have if the university fails to provide the support that would previously have been given under DSA.

I recognise that universities are required to follow the Equality Act—we have heard from the Minister that they will do so—and to make reasonable adjustments. However, should universities fail to make reasonable adjustments, the main means of redress here would seem to be a judicial review. Had the same disabled student aged 19 attended college instead and had an education, health and care plan, they would have the option to appeal to a SEN and disability tribunal over their support. It seems perverse that a student at a university has to take a more difficult route to securing the support they need. I would be grateful if the Minister could provide a view on whether disabled students in higher education should have the same or similar statutory rights as a student at a college with special educational needs aged 19 to 25. Will the Minister confirm whether his department will look again at the question of whether disabled students in higher education should be brought under the scope of the code and the SEN framework?

Thirdly, and finally, there is a strong focus on outcomes in the new code. This is certainly to be welcomed. Will the Minister confirm whether families or young people will have a right to appeal if the local authority fails to set stretching or appropriate outcomes for their child? The National Deaf Children’s Society and others are concerned that there is an omission here in both the code and the accompanying regulations. If so, what is the rationale for this?

I hope that the Minister will be able to provide reassurances on the above matters or indicate that these issues are being looked at elsewhere. It is important that we have the best SEN code and framework possible—I am sure that he is committed to that—and, where improvements are needed, I very much hope that the Minister will look at how those can be achieved.

[Lord Addington (LD)]

My Lords, perhaps I may put a few more points. First, the size of the document was commented upon in another place. On going through the sections, they should of course be broken down to smaller units, for ease of use. I ask my noble friend, has he encouraged the various charitable bodies outside to print their own guides to the relevant bits for their user groups? I can see that they would be very good at making it understandable, because it is in their interests and those of their client base to ensure that it is done; and they have a better starting point from knowing exactly what language could be used. That is a general point.

Not for the first time, the noble Lord, Lord Ramsbotham, got to the nub of what I was going to say, first. That is, that we have come from a very confrontational system, as the noble Lord said, in which we knew what we had to do and where the points in the sand were that we had to get to. We knew that we had to achieve these and needed certain points to do so. It was incredibly confrontational and probably wasted huge amounts of effort. It probably was needed when it was first brought in, to get people to take the problem seriously. We should be capable of moving on from the graduated approach commenced in school action and school action plus, as the noble Lord described. However, if we had taken into account that the schools and the providers of support are also going to have to move away from a confrontational situation, what is that monitoring? What is that “must”, and how are they going to do it? Those are very valid questions. If there is not the will to move forward, who ultimately will make sure that they do it? That is something we should know about. It is something that we should not have to do but almost certainly will do, if only in a certain number of cases. It is just the historical weight that we carry in this situation.

I have a couple of slightly more specific points. The biggest and bravest change in this was the fact of the duty to identify within the Act—not merely as a response to those who had been presented. However, I cannot help but ask: if we are putting a great deal of effort into the SEN codes here and the SEN codes are organised, has my noble friend given any more thought to improving at least a recognition course for the more commonly occurring disabilities or educational problems? He mentions in this document those with specific learning difficulties. Apparently dyslexics are out in front, closely followed by dyscalculics and dyspractics. I am not sure about the figures, but we reckon that it is roughly 10% in the British version for dyslexics. Just over 3% have dyscalculia; I have not seen the figure for dyspraxia. Probably up to 15% of our school population is covered in that group. We must make sure that we can identify the signs, or at least the danger of people falling into those groups, the specific learning patterns those people have, the support structures they will need and, indeed, getting them through not only for educational purposes and teaching them how to cope. It would be very helpful to know how to establish all that for individuals; how to bring in their parents and tell them how to cope.

I remember the discussions we had about the SEN codes. Let us face it, none of us is coming in on this cold. I think that the term used was “whole-school strategy”: making sure that work structures are in place throughout the school. In early recognition, having lots of eyes with a degree of knowledge will be better than having an expert who gives commands, because at least that way we will know to refer on to the expert. This is something that is not too much to expect, and it certainly has to be a better way forward in the earlier stages of the educational process. What steps are being taken towards this? If we do not put mandatory steps in now, how do we ensure that the SENCOs have enough scouts, troops and boots on the ground to ensure they do their job properly?

This is a change of approach and a bold step, but the transition is going to be difficult. Almost by guarantee there are going to be problems with transition to the new culture. Unless more people are brought in and provided it is not pushed off to one side, which tended to happen in the past in the worst cases, we are going to have extra problems. I look forward to my noble friend’s answers.

[Lord Low of Dalston (CB)]

My Lords, the SEN disability code of practice, which we are considering today, is a substantial piece of work, as has been remarked. The department is to be congratulated on it, particularly on the extent of the consultation which has taken place. It has been improved considerably in many respects since it was first issued in outline. I particularly express appreciation for the time and trouble officials have taken to meet with me and respond to the concerns I have expressed.

Within the restrictions imposed by the debates on the Children and Families Bill, the approach to inclusion has been improved. There are references to the UN Convention on the Rights of Persons with Disabilities; there is a statement on the presumption of mainstream education; and, as has been said, there is a greater reference to the Equality Act, although the inter- relationship between that Act and education legislation could have been better spelt out and highlighted more prominently. So far as encouraging a strategic approach to the development of mainstream provision is concerned, the statement that local authorities should be proactive in seeking to improve the accessibility of mainstream provision is most important, particularly if they do that with respect to the provision in their area taken as a whole.

That said, the Government will know that members of the Special Educational Consortium are far from giving the code their unequivocal support. They are calling for an early review of the guidance once we have seen how it is working in practice. The sector exhibits a range of views about the code. Some organisations believe it should be withdrawn and relaid at a later date. A case in point is the National Deaf Children’s Society, which has already been referred to. This is not a head-banging or unreasonable organisation; it very much has its feet on the ground. That an organisation such as this should ask for the code to be withdrawn should give grounds for concern. The society makes a number of points. I will allude to them briefly, because the noble Baroness, Lady Howe, has already referred to them.

On Report, the Minister announced the Government had asked Ofsted to review the need for an inspection framework to drive improvements in local SEN provision and the local offer. The NDCS believes it should be a higher priority to ensure the support that deaf children receive from services is inspected. As the noble Baroness said, concerns have also been expressed about the wider accountability framework around SEN provision. The Minister indicated that Ofsted would publish its findings in summer 2014 but to date we have heard very little about Ofsted’s progress. Like the noble Baroness, Lady Howe, I would be very glad if the Minister could give us an update on how that work is going. We need a clear understanding of how the local authorities will be held to account for their local SEN provision.

Secondly, the code is equivocal about provision of specialist services for deaf children. Paragraph 9.144 states,

“local authorities should consider commissioning … peripatetic services”

for very young children with “hearing or vision impairment”. But elsewhere it states that where an EHC plan is being considered, deaf children must be assessed by a qualified teacher of the deaf. This cannot happen unless the service employing such teachers has been commissioned, so I would welcome the Minister’s reassurance that the necessary services for giving deaf children the support that they need will be commissioned.