Children and Families Bill

Lord Lingfield Excerpts

Monday 4th November 2013 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, I wish to speak to Amendments 129, 131, 133, 136, 139, 140, 141 and 142 standing in my name. These amendments focus on the mechanics of the process for determining education, health and care needs, the rights of appeal and the support for families which need to be factored in during the assessment process.

First, Amendment 131 specifies that, when making a decision as to whether special educational provision should be made for a child or young person, the local authority should have,

“regard to the competencies and needs of the child or young person’s parents and immediate family”.

This whole-family approach is an essential feature of the Bill. It should place the child’s or young person’s family at the heart of the assessment process. This is important in informing the provision to be specified in an EHC plan and would provide a much more rounded and personalised programme of support. This is consistent with our approach to previous parts of the Bill which sought to involve families more in the process. I know, from discussions we have had about young carers, that the Minister is sympathetic to this approach.

It is important that family life and home life are considered as part of a support package. Families are key to the well-being of children and young people with special educational needs and disabilities and to ensuring that they have every help to achieve their potential. The draft code of practice is very light on the scope to include families in assessments. The emphasis is on parental involvement in discussions and decisions, which is fine, but we are making a different point: families do not just need to be consulted; their own needs for help and support also need to be assessed. This whole-family approach is a fundamental principle which should thread through the clauses and be spelled out in the Bill. I hope noble Lords will support this amendment.

Amendments 129, 140, 141 and 142 deal with timescales in decision-making. Clause 36 specifies that parents, young people or educational establishments can request an EHC assessment. Our amendments would add a six-week time limit for responding to such requests. We feel that this is a reasonable timeframe, given that such requests would not be made unless there was a view that a child’s education was suffering in some way, so early intervention and action for the sake of the child are obviously important at that point.

We are aware that this requirement is included in the draft code of practice, but we feel that these rights are so fundamental that they should be spelt out clearly in the Bill. We feel that clear timescales would give added reassurance to parents and children alike, and would ensure that local authorities had clear and responsive processes in place to comply with the Act from its commencement, which would make these timescales a reality.

Amendments 133 and 136 deal with the right of appeal. As it stands, Clause 36(5) states that where a decision is taken by a local authority that no special education provision will be made, the local authority must notify the child’s parent or the young person of the reasons for that decision. So far so good, but our amendment would go one step further and ensure that parents are informed of their right to take the decision to appeal as a matter of course. This matter is covered in the code of practice, but we feel that it is better placed as an absolute right in the Bill.

We would go one stage further and argue that all appeal rights should be brought together as one single seamless set of rights spelt out in the Bill. We have separate amendments in a later group that address that point. We believe that a robust appeals process will ultimately be a guarantor of quality and will help to make the EHC system a success. I hope noble Lords will listen carefully to the points that I have made and will feel able to support the amendments.

[Lord Lingfield (Con)]

My Lords, I, too, have amendments in this group, to which I will speak briefly. In a similar way to the amendment of the noble Baroness, Lady Jones, to which she has just spoken, my first amendment, which is to Clause 36(5), seeks to place in the Bill a specified time limit for a local authority to act. In this case, it is to notify a parent or young person that the authority has determined that special education provision is not necessary.

Although the Bill does provide in Clause 36(11)(c) the regulations to be made concerning the giving of notice, for reasons of transparency it is important that this should be placed here in primary legislation. It is important to realise that the suggested time limit of 15 days reflects the current practice under existing legislation. Such transparency of time limits is important for parents and ought to be in the Bill, in order that they are informed promptly if a local authority determines that special education provision is not necessary, so that parents can, without delay, decide on any processes of appeal that they may wish to follow.

My second amendment, to Clause 36(11), strengthens the wording from “the regulations may make” to “regulations shall make”, so that we can be absolutely clear that regulations will be produced to this end.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, I speak to this group of amendments on assessment tabled by the noble Baronesses, Lady Hughes and Lady Jones, the noble Lord, Lord Patel, and my noble friend Lord Lingfield. Before I do so, I should say that my noble friend Lady Northover has had a bereavement and my noble friend Lord Attlee will be standing in for her at very short notice on a couple of the groups this afternoon.

The overarching theme of this group is clarity and timeliness in communications. Getting this right is absolutely vital in creating a system where children, families and young people feel that they are being treated fairly. I thank noble Lords for the opportunity to discuss this matter.

On Amendment 128A, tabled by the noble Lord, Lord Patel, it is a key part of the reforms that anybody working with a child or young person who thinks that they may need an EHC plan can refer them to the local authority. This includes providers of alternative provision, so that a child or young person’s needs can be met. I reassure the noble Lord that Clause 23 will enable providers of alternative provision, and anyone else working with children and young people, to make a referral. The local authority must then determine whether an EHC assessment is necessary, as it would following a request under Clause 36.

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My amendment has been drafted to seek confirmation from the Government that a prescribed range of specialist professionals should contribute to reassessment. This would ensure that future provision for children and young people with SEN is informed by robust research evidence and specialist knowledge offered by qualified professionals. Without such a prescription there is a fear that local authorities, especially in the current financial climate, will be tempted to use unqualified and/or inexperienced staff to carry out reassessments. Although in the short term this might save money, the implications of less rigorous reassessment will lead to incorrect judgments and poorer outcomes for children and young people, and may well result in greater financial cost in the long term. Therefore, I would be grateful if the Minister would confirm the role of educational psychologists in the reassessment process in a little detail.

[Lord Lingfield]

My Lords, I have one amendment in this group, which is to Clause 37(5). It is to provide a standard form of education, health and care plan rather than use the more discretionary wording of the Bill. At the moment—and this touches on the point made by the noble Lord, Lord Touhig, concerning passports for special educational needs—statements are in a standard form. If there is no similar standard form for education, health and care plans they will surely be subject to each local authority’s drafting preferences. As a result, EHC plans may not be in a consistent format and may vary widely in their level of detail. This could cause confusion and difficulty for parents and young people, especially if they move from one local authority to another. Relocation of this kind, under current economic circumstances, is becoming extremely common.

Your Lordships will have noticed, in relation to Clause 30, and the local offer, that there are strong arguments for a consistent national framework for the key tenets of the new system of assessment and provision brought in by the Bill. In addition—as the Minister reminded us when we debated Amendment 71—in his appearance before the Education Select Committee on 6 November last year my honourable friend the Parliamentary Under-Secretary of State for Children, Schools and Families stated:

“The first thing I want to be absolutely clear about is that the current protections that parents and young people have in the current statementing system are intended to be carried forward into the new system”.

In the spirit of this, and as I sought to express in this amendment, I believe that these key duties relating to statements should remain the same for EHC plans, and that, in particular, the requirement for a standard form, and the duty to be specific about provision, should remain. I hope that the Minister will be sympathetic to this.

[Baroness Sharp of Guildford]

My Lords, my name is added to that of the noble Baroness, Lady Howe, for Amendment 147 and I endorse what she has said on this issue. Statements for special educational needs require an educational psychologist to endorse them and it is obviously sensible and important that this should be extended to the post-18 age group. I probably also should have put my name to Amendment 168 because the argument there is just as cogent and important.

While I am on my feet, I should say that I have a lot of sympathy with the amendment in the name of the noble Lord, Lord Lingfield. As he said, as we have a set format for statements of special educational needs, it would seem sensible for it to be carried forward in relation to the EHC plans.