Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Lord Hill of Oareford Excerpts

Monday 16th January 2012 Grand Committee

Moved By

[Lord Hill of Oareford]

That the Grand Committee do report to the House that it has considered the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012.

Relevant document: 36th report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, when we discussed the general principle of testing the use of direct payments for special educational provision on Report on the Education Bill back in November, I am glad to say that there was a broad welcome for the measure from all sides of the House. However, there was a suggestion from the noble Lord, Lord Touhig, that the detail would merit further scrutiny and that the affirmative resolution procedure would be the right way forward. That was a suggestion that I was happy to adopt, and I am glad that we have an early opportunity to discuss this important order today.

I also put on record my thanks to the noble Lord, Lord Rix, for the attention that he has personally paid to this issue since November and for the helpful exchanges that he has had with my honourable friend Sarah Teather. I also thank the Special Educational Consortium for the way in which it has worked very constructively with officials to look at some of the detail. We have benefited from its advice as well.

As noble Lords know, we said in the Green Paper, Support and Aspiration, that we want to give every child with a statement of SEN or in a new single education, health and care plan, and their family, the option of a personal budget by 2014. That will help give families more of a say in decisions about the support services they use. We have already set up 20 pathfinders to look at improving assessment processes and developing personal budgets for parents. What we are not currently able to do is test the contribution that direct payments for special educational services could play in empowering families. We can do that for health and social services, but not for education. By passing this order, we will also be able to trial direct payments for educational services as part of testing personal budgets across health, social care and education which, if we want to bring all the services together in a more integrated way, seems to be the logical next step. We propose that the pilot should initially run for 14 months until March 2013, with the option to extend for a further two years after that point, if necessary. This is in line with the Green Paper pathfinder testing period.

During our debate in November, noble Lords sought reassurance on a number of points. Let me try to deal with each of them. The noble Lord, Lord Touhig, sought reassurance on the potential impact of direct payments on services to other children and young people with disabilities and SEN. The issue was also raised by the Special Educational Consortium during its discussions with officials from the department. We recognise the importance of this issue not just in terms of the viability of services, but also as an equalities issue. So we are clear that the benefits that direct payments may deliver to those who choose to receive them must not be achieved at the expense of other service users.

That is why we have included the requirements set out in paragraphs 11(c) and 17(f) of the order, which require the local authority to consider the potential for any adverse impact on other service users before entering into any individual agreement on a direct payment and to stop making direct payments should that become apparent at a later date. We recognise that there needs to be a careful balance struck between achieving our aim to give families greater choice and control and protecting existing services. We will need to work through this issue, as and when it arises, with the authorities taking part in this pilot.

In response to questions raised about securing a direct payment, we have sought to give greater clarity to the process for agreeing a direct payment and the provision that it can be used to purchase. We have linked the offer of direct payments to the making of a new or amended statement or the carrying out of a learning difficulties assessment to ensure that the question of whether direct payments will be made does not affect the existing statement and assessment process.

In addition, we have included a requirement to reach agreement about the goods and services which are to be secured by means of the direct payments and a requirement to obtain the written consent of the proposed recipient and, if different, the parent or beneficiary. The written consent must specify the agreed provision and the amount of the direct payments, including whether they are to be paid in a lump sum or in instalments.

Following questions from the noble Baroness, Lady Jones of Whitchurch, about support to families, we have included requirements in paragraph 19 of the order for authorities to make arrangements for a person receiving direct payments to obtain information, advice and support and provide them with written information about organisations that may be able to offer advice and assistance in connection with direct payments. This is an important point, and I am grateful to the noble Baroness, Lady Jones of Whitchurch, for raising it.

Pathfinder authorities will need to work with independent organisations to test how this advice and guidance can be delivered most effectively. A key objective of our Green Paper pathfinders overall is to explore how the voluntary and community sector can be used to improve access to specialist expertise and to introduce more independence to the system.

We have learnt from the individual budgets for disabled children pilot, which began under the previous Government, that, with effective support, advice and information, personal budgets can be accessible to families of all backgrounds. We will work with the authorities taking part in this pilot to ensure that they benefit from the experience of those individual budget pilots. To this end, we have included the individual budget pilot authorities in this pilot scheme alongside those taking part in the Green Paper pathfinder programme.

Overall, we are clear that there is much to learn and work through in the implementation of direct payments for special educational provision. This pilot scheme will allow us to do this as a coherent part of the testing of the reforms being undertaken by our Green Paper pathfinders. This includes the work that they will be doing on personal budgets, of which direct payments are just one method of delivery, and their wider work on the new single assessment process and education, health and care plan. We have made available to both Houses a section of the Green Paper consultation response relevant to personal funding and direct payments.

Finally, I would like to repeat the reassurance I gave during our debate on the primary legislation. The pilot scheme will need to be subjected to proper evaluation if we are to learn from it. We are working on the detail of that evaluation at present, but I can confirm that we intend it to be undertaken by an independent research company and to form a distinct but coherent element of the wider evaluation of the Green Paper pathfinder programme. I am happy to repeat my commitment to sharing those findings as we go along.

To sum up, I think that the previous time we debated this we all agreed on the direction in which we are keen to travel, but we certainly recognise that a number of difficult questions and issues are still likely to arise as we go along that way. I believe that this order provides a framework within which we can explore and, I hope, find ways to address those questions while ensuring that appropriate safeguards for families and the public purse are maintained. I beg to move.

[Lord Rix]

My Lords, I thank the noble Lord, Lord Hill, and his ministerial colleague Sarah Teather, the Children's Minister, who I previously met last autumn along with a delegation from the Special Educational Consortium to discuss in more detail the statutory instruments in relation to direct payments for special educational needs in the various pilot areas. I welcome the constructive and positive dialogue and correspondence with the noble Lord, his ministerial colleagues and various officials in his department. I believe that the statutory instrument, as laid, is much improved as a consequence of that process.

However, there remain a number of points on which I continue to seek clarity. For example, I seek assurances that if people with a learning disability are the recipients of direct payments, it will not lead to a reduction in the level of resources available for the provision of their education. I believe there is a genuine risk of this. In the field of social care, I am aware that personal budgets have sometimes been used by local authorities as an opportunity to try to reduce their costs. We must not allow this to happen with direct payments for SEN, which is why it is so important to get the statementing process right.

I also welcome the Government’s inclusion of paragraph (10) in Schedule 1 to the order, which requires local authorities to agree the amount of direct payment with the recipient in advance and to obtain their consent in writing. However, it is important to bear in mind that many statements of SEN and learning difficulty assessments are not sufficiently well written to allow proper calculation of the cost of the services they describe. For example, a statement may say, “Regular input from a speech and language therapist”, when it should say, “Three hours input from a speech and language therapist per week”. It would be impossible to calculate an amount that correlates to regular input, and in practice this would be down to negotiation between recipients and the local authority. In these cases, parents or young people might agree to accept a direct payment that is not sufficient to purchase the support which is actually needed. Therefore, I would like the Government to consider how they could ensure that the provisions set out in a statement of SEN are properly quantified and specified before a direct payment for that statement is agreed upon.

The Minister will also be aware that concerns were previously raised, as he remarked, about the impact of direct payments on the SEN services provided by local authorities for other children and young people in their area. I am uneasy with the requirement in paragraph 17 of Schedule 1 that if an “adverse impact” is made on these services, the local authority would stop making the direct payments. This could potentially lead to unintended consequences. For example, what steps will be put in place to safeguard the interests of the children concerned if a direct payment is suddenly ceased? What guarantees are there to ensure that the resources allocated for the provision of SEN are not misdirected elsewhere? What steps will be taken to ensure that local authorities do not deliberately underfund direct payments so that the payments can be withdrawn soon after? I also seek assurances that the evaluation of the pilots will fully consider these issues.

I look forward to the Minister’s response to the various concerns raised about this order during today’s debate, and I hope that officials in his department will be prepared to continue working with representatives from the Special Educational Consortium as we move forward on this matter.

--- Later in debate ---

[Baroness Hughes of Stretford]

Like other colleagues, I thank the Minister for his statement and for sending me a copy of the letter from Sarah Teather with some of the Green Paper responses. I very much welcome in principle the idea of extending direct payments to families, children and young people and the potential for empowerment, choice and control that that gives.

I have a number of overarching points to raise with the Minister as well as in relation to the detail of how the instrument is worded. First, will the Minister say something about when the draft guidance to the pathfinder authorities will be published? The devil really is in the detail of how this scheme will be implemented. Had we had that guidance today, perhaps some of our questions might have been answered. Going forward, I think that the guidance will be critical.

Secondly, can the Minister say a little more about how he sees this pilot fitting into the wider scheme of personal budgets for families of disabled children and those with special educational needs, to which he, and others, referred? As we know, the Labour Government began the pilots for families with disabled children and the current Government announced in September last year the 20 pathfinders to which we have referred today to test the Green Paper proposals, including personal budgets and testing the healthcare element particularly of direct payments through the personal healthcare budget pilots. How far does the Minister see the pilots that we are discussing today, in those pathfinder sites, being integrated with the pilots already going on in relation to social care and healthcare budgets? The instrument is framed as if this is something separate, but a family with children with special educational needs will also very often have health needs—they may also have a physical disability. Does he envisage that these will be integrated so that the families themselves will be able to look across the range of services—of social care, health and education? How will that work? It is really very important that with direct payments for educational services, or those that could be purchased from an educational budget, the families themselves should have some flexibility about how the whole range of resources might be available.

Thirdly, the extent to which this achieves the objectives to which the noble Lord, Lord Touhig, referred—a positive impact on families—will depend in part on the availability of alternative providers for the kinds of goods and services that the families might seek. What expectation or requirement do the Government have on local authorities actively to stimulate that market and support emerging providers in the voluntary sector, so that families seeking to use direct payments have real choice and there are options out there for them?

Finally, as an overarching point, as the noble Lords, Lord Low and Lord Rix, have mentioned, there is a real concern about the total quantum of resources available here. Will the total amount of resources be sufficient to fund adequately the direct payments for those families or young people who seek to use them while not compromising the level of services available to other children?

On some specific issues in the instrument, paragraph 3 in Part 2 says that local authorities must consider the request for direct payments and paragraph 13 refers to the decision by the local authority that it is free not to make direct payments after a request by a family or young person. On what bases can the local authority decide not to make a direct payment? If the technical requirements are there and have been adhered to, such as the written consent and so on, what will be the criteria that the local authority has to consider in deciding whether to make a direct payment? This concerns the balance between the powers of the local authority to make those decisions as against the entitlement of families.

Secondly, how extensive or limited will be the ability to use direct payments and what do the Government envisage? Paragraph 10 says that,

“Before making direct payments, a local authority must … agree … the qualifying goods and services”,

to be served by direct payment. What does that mean in practice? Will the local authority have to agree not just the general but the specific service, or the specific piece of kit? Will it have to agree the provider and the cost? If all of that has to be agreed between the young person or the family and the local authority, there is not much flexibility left for anybody to do anything different. So what is the flexibility envisaged in how the direct payments will be operated?

Thirdly, the degree of control given potentially to the local authority in the instrument seems to provide very broad caveats for the local authority not to have to make direct payments. If the local authority feels that direct payments might have “an adverse impact” on other services or if it is not compatible with the efficient use of local authority resources, it can decide not to go along with direct payments. Like the noble Lord, Lord Rix, while one wants to see powers that ensure the value for money and correct use of direct payments, those are very broad caveats that will allow a local authority not to go down the route of offering direct payments.

I say this because, as a Member of Parliament for many years, I had a number of experiences in relation to adult social care in which I felt that local authorities were very specifically not informing people about the potential to have direct payments. They were making it extremely difficult and took a general view that making direct payments available to some people was against the grain in terms of the efficient use of their resources. Looking at the responses to the Green Paper, I see that 19 per cent—which must largely be local authorities—replied that they had concerns that making direct payments to some individuals would in general almost certainly have a negative impact on the efficient use of resources and so on.

In relation to the monitoring review that the local authority is required to undertake—and it is right that it does—it would have been preferable had there been some reference to the local authority undertaking the review alongside the recipient or beneficiary of direct payments. A very top-heavy approach is envisaged in the statutory instrument with all the powers for decision-making resting with the local authorities. It is an interesting contrast to the way in which the Government have approached the balance of power and control between schools and local authorities, for instance. Here, we see the local authority being given all the control.

My fourth, and most important, point is about information, advice and support. It may well be that there will be some parents who are well able to take on the local authority to exercise the potential to use direct payments effectively, but there will be other families who cannot do that on their own. The quality of advice, information and support is very important. I also note that if the payment for advice and support comes from a third-party organisation, it has to come out of the direct payment. I wonder where that will leave families. Is it a payment for any advice and support in addition to that being given for the service? What implications will that have for the total quantum of resources?

[Lord Hill of Oareford]

My Lords, I am grateful for the broad welcome for this order and for the helpful suggestions that were made. I would never think that the noble Lord, Lord Low, was a wet blanket. The questions that he raises are proper questions in that they are the same questions that in our different ways we have all been grappling with over the past few months. The key issue is how we get the right balance—this is the point made by the noble Baroness, Lady Hughes of Stretford—between wanting to increase choice for individual parents, families, children and young people and wanting to do that in a way, in this most sensitive of areas, that does not undermine the provision for other children. Getting that balance right is what these pilots are intended to address.

The general answer that I have to a large number of the questions that have been raised is that the purpose and point of the pilot is to try to get answers to the questions that noble Lords have raised. We will know the answers to the points about the balance, what will happen in certain circumstances, what it will mean for different providers, how we know that in some cases local authorities might not want to approach this with an open mind and all the rest of it only once we have this pilot. The evaluation will help us to understand that, which is why, as a number of noble Lords, including the noble Lord, Lord Touhig and the noble Baroness, Lady Hughes, made clear, the evaluation is so important and why in the same spirit as we have tried to approach this whole process we will make sure that that evaluation is shared widely.

Some specific points were raised by the noble Lord, Lord Touhig, who I must now think of as the three in one, if that is not inappropriate in the Moses Room. He asked whether we would look at the experience of parents and young people as part of the evaluation, whether we would look at the impact on local authority-commissioned SEN services and how calculations of direct payments are made. When we finalise the details of the evaluation, those are all things that I am certainly happy for officials to look at. We expect interim findings from the valuation in April this year and then September this year, with a final report available in March 2013. That would be before the order needed to be renewed, if indeed it did.

On the point about guidance raised by the noble Baroness, Lady Hughes of Stretford, which was a fair question, officials will share a draft of the advice to pathfinders with the Special Educational Consortium. I will make sure that other noble Lords with an interest will also see it. We will do that in the coming weeks and we would welcome views because we need to get that guidance absolutely right.

--- Later in debate ---

[Baroness Walmsley]

What is the mechanism for challenging a local authority’s decision about this? Let us say that a local authority says either, “You, Parent A, are not capable of handling an individual budget, therefore we are not going to give it to you”, or, “We are not going to give you an individual budget because we think it would have a damaging effect on our ability to deliver services more widely”. There are two possible reasons there where they may make that decision. Is it the local authority ombudsman to whom the parent would go if they were not satisfied with that decision, or is there some other challenge mechanism?

[Lord Hill of Oareford]

Yes, my Lords, there is, and my noble friend raises a good question. It seems that the order allows the local authority to review the decision that is taken. I may need to write generally on the arrangements for the review of decisions. Our view is that we have sufficiently robust arrangements for the purposes of the pilot, so they are in place, but I think I will need to follow up with my noble friend on precisely what they are. However, on the kind of issue that my noble friend spoke about—whether it has worked properly and whether a fair process has been carried out—we certainly think that, again, the evaluation will enable us to see whether the processes that have been put in place are working. If I have more particulars, I will write to my noble friend on that.

[Baroness Hughes of Stretford]

The wording of the order, as far as I can see, simply says that if the local authority decides to refuse direct payments or in a review to change the current situation—to reduce the funding, or whatever—the beneficiary or the family can ask it to look again. However, after that, there is nothing as detailed on any recourse to any independent authority. Perhaps the Minister could say a little more about that. Can he also answer my question about the criteria on which a local authority can refuse in the first place to decide that a particular family’s request is not going to be acceded to?

[Lord Hill of Oareford]

Some of the criteria are set out in the order—for instance, paragraphs 6 to 8 on when the local authority is not satisfied that the recipient is suitable and paragraph 11 on the effect on other services. The question that underlines this comes back to this central tension, which the noble Baroness quite rightly raised, between the duties and responsibilities on the local authority to continue to discharge its statutory duties, the budgets and everything that goes with that, and trying to arrive at a situation where there is more flexibility for individuals and their families. Given that the local authority ultimately has the statutory responsibility and the budget, we have to have a system in place whereby the local authority does not find itself exposed either financially or in other ways in a way that it cannot afford or deliver. From that point of view, that is the whole basis of the system that we currently have. We might get to another point—with our SEN Green Paper and further legislative steps—but until then it is within that framework that we have to operate.

The noble Baroness, Lady Hughes, also asked a question about how these pilots integrate more generally into the work that is carrying on with the pathfinders and the work that is going on with health and social budgets. This pilot on direct payments is being undertaken as part of the broader pathfinder programme in 20 areas made up of 31 local authorities and their PCT partners. They are working together—or we hope that they will work together—to test the use of personal budgets including direct payments for health care and special educational provision alongside the development of the new education health and social care plans. The pathfinder programme is managed by a joint working group across the two departments; the whole recruitment phase to select the pathfinders and their support and evaluation teams is also a joint venture. It is probably also fair to say—this is a broad point that links to the noble Baroness’s questions—that the local authorities and others with whom we are working on these pilots are approaching it with an open mind, trying to see whether it is possible to introduce personal budgets and direct payments and to see what it would look like. It is clearly the case, as the noble Baroness very rightly said, that there may be some local authorities and others who do not particularly relish the thought of change, but the ones in the pathfinder, with whom we will be working to test these issues, will, we think, engage with that constructively.

[Lord Low of Dalston]

At the risk of detaining him, may I ask the Minister a further question not unrelated to those which have just been raised where there is a dispute between the parent and the local authority? My question is not about whether to make a direct payment but more about the quantum. Has the department considered the implications for the special educational needs tribunal and whether some provision needs to be made for people to appeal to the tribunal about the quantum of provision? It is not to be imagined that there will be total unanimity all the time between parents and local authorities on what the level of direct payment should be. At the moment, there is provision for parents to appeal to the special educational needs and disability tribunal about the level of provision being made. Since the direct payment is the analogue of that provision, is there going to be an opportunity for parents to appeal to the tribunal where they wish to dispute the level of direct payment the authority is willing to make?

[Lord Hill of Oareford]

I do not believe that there will be a direct right of appeal to the tribunal in connection with direct payments—I guess that there would in terms of the overall provision, as is currently the case.

I am conscious that I may not have picked up all the detailed questions, for which I apologise. Because I want to address all these concerns, I will go through this with officials tomorrow and, if I have failed to pick them up, I will come back. It is generally the case—which I hope noble Lords will find reassuring—that we will go forward in the way that we have since September through November; we are committed to working closely with the Special Educational Consortium and others with expertise in this area to get these pilots right. I think I am right in saying that, some of these proper detailed questions not withstanding, there is support for these pilots. I hope that we can go forward with them. I will share the evaluation with noble Lords as it comes forward over the next months. With that, I hope that we can agree this order.

Motion agreed.