Children and Families Bill

Lord Low of Dalston Excerpts

Monday 4th November 2013 Grand Committee

[Lord Low of Dalston (CB)]

My Lords, I have added my name to Amendments 137, 145, 165 and 173, but I do not propose to speak to them in any detail because we have been on this debate for a good long time. We have heard a number of full and eloquent speeches and I do not wish to go over what noble Lords have said. However, I should like to add a couple of points.

The Government are presumably worried that parents and young people will assume that they have an automatic right to an education, health and care plan up to the age of 25, but that is not something that the Government need to be too worried about. Most young people will not want to stay in education until they are 25. As the noble Lord, Lord Touhig, said, these amendments do not seek a blank cheque for continuing education for all young people to the age of 25 regardless of the type and purpose of the course they are pursuing; rather, they envisage local authorities supporting young people to achieve their agreed education, health and care plan outcomes, allowing them to progress to a job, develop their independent living skills, make an economic contribution to their community and avoid swelling the ranks of those who are not in education, employment or training.

I do not think that age needs to be mentioned at all, as the noble Baroness, Lady Howarth, just said. Most young people will achieve their education, health and care plan outcomes well before the age of 25, as they do now. Young people must have the opportunity to continue their educational programmes to achieve their agreed outcomes in age-appropriate settings in order to make the transition to adulthood, including work and independent living. These amendments will ensure that the existing protections for 16 to 25 year-olds are not lost.

In that connection, Ministers have stated that no one should be worse off as a result of the Bill. Currently, the learning difficulty assessment statutory guidance requires local authorities to maintain learning difficulty assessment and support to allow the young person to achieve their potential in employment and independent living up to the age of 25. That is in part a recognition of the fact that some disabled people may take longer to reach their potential.

The Bill should therefore not derogate from what is provided for in the current learning difficulty assessment guidance. As the noble Baroness, Lady Cumberlege, told us, independent specialist providers support many students who need a longer period to complete their studies or training. Many such providers also have significant numbers of students who become disabled for the first time as they approach adulthood, which obviously delays their educational progress. Decisions about whether to maintain a young person’s education, health and care plan beyond the age of 19 should be based solely on the young person’s progress in relation to their planned outcomes. Their age up to 25 is not the most significant factor. Focusing disproportionately on age will divert attention from supporting the young person to achieve the agreed outcomes in their education, health and care plan, which should be the prime consideration throughout.

[Baroness Wilkins (Lab)]

My Lords, I support Amendment 172 tabled by the noble Baroness, Lady Howe. I will not extend much further this excellent debate. It is very important that the Bill and the accompanying guidance is clear on the need to maintain specialist support when this is needed. It should not simply be cut when a child starts to do well. On this point, it seems that there is an inherent tension in the draft code of practice that needs to be resolved. I would be grateful if the Minister would look into this.

On the one hand, the definition of special educational needs includes children or young people who have a disability which prevents or hinders them from making use of the educational facilities of a kind generally provided for others of the same age. There are some groups of children, such as those who are deaf, to which this particularly applies. The implication is that these children have a special educational need by virtue of the fact that they are in need of specialist support to enable them to access those same educational facilities. However, there are times in the code of practice, from the tone of what is being said, when the reader can be forgiven for thinking that only children who are not making progress should be regarded as having a special educational need. For example, on page 75, it is suggested that SEN specialists should be involved when it becomes apparent that the child is making little or no progress. Many believe that this reflects a tension between the special educational needs framework of supporting children who fall behind and the disability equality framework of taking proactive steps to support disabled children.

Will the Minister look again at this to make sure that it is crystal clear that no local authority should cut support for a child because they are making good progress when it is only because they are receiving that support that they are able to make that good progress? I would also welcome his clarification for the record that children who need specialist support, such as deaf children, should be regarded as having a special educational need regardless of whether they are falling behind or making good progress.

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Moved by

[Lord Low of Dalston]

142A: After Clause 36, insert the following new Clause—
“RegisterMaintaining a register of sight impaired and severely sight impaired children and young people
A local authority in England must establish and maintain a register of sight impaired and severely sight impaired children and young people who are ordinarily resident in its area.”

[Lord Low of Dalston]

My Lords, the amendment would introduce a new clause after Clause 36, requiring local authorities in England to establish and maintain a register of sight-impaired and severely sight-impaired children and young people ordinarily resident in their area. Perhaps I should declare my interest, which is in the register, as a vice-president of the Royal National Institute of Blind People.

Local authorities have been required to maintain registers of blind and partially sighted people since the introduction of the National Assistance Act 1948. That obligation applied to both adults and children. Following a recommendation in the Law Commission’s report on adult social care in 2011, the Care Bill currently going through Parliament lays a duty on local authorities in Clause 73 to establish and maintain registers of sight-impaired and severely sight-impaired adults ordinarily resident in the area. However, under this Bill, no such obligation exists in relation to sight-impaired and severely sight-impaired children.

The registers, which have been maintained for some 65 years now, play a critical role in enabling local authorities to assess population level need for specialist visual impairment services and support. Evidence indicates that young children and parents greatly benefit from receiving integrated support from an early stage, following identification of a child’s sight condition. Early referral, aided by a robust system of registration, is fundamental to achieving that.

Registers serve three main purposes. First, they provide a local resource to support the local authority and partner agencies with the strategic planning of services. Secondly, they indicate a person’s eligibility for certain benefits. As a matter of fact, under universal credit, children who are registered blind will be entitled to receive the severe disability addition in recognition of the household’s need for greater support. Thirdly, in the case of children and young people, the process of being registered with the local authority assists with early referral to specialist services and support, including help from voluntary groups. The requirement to maintain a register for adults assists local authorities in planning services and meeting individuals’ needs. If the same duty is not placed on local authorities with regard to children, it seems inevitable that the service planning and arrangements to meet the needs of a specific group of children and young people will be less effective.

Existing legal provisions on the maintenance of a register of disabled children are inadequate. The Children Act 1989 states that local authorities “shall open and maintain” registers for “disabled children”, but those general registers are scarcely used and do not meet sensory services requirements. The certification and registration process in relation to those with a visual handicap is unique in its potential to bring health and social care together. The situation for children is even more complicated, because social care and education both need to be involved. For example, early access to mobility training arranged through social care has a profound impact on blind and partially sighted children’s development and ability to benefit from education.

The greatest fear is that, without a statutory basis, registers of visually impaired children could fall into disuse.

On 7 September last year, in response to a Parliamentary Question from Stephen Gilbert MP, the Minister in another place said that:

“A local authority is required to keep a register of disabled children within its area and this will include children who are sight impaired and severely sight impaired”,—[Official Report, Commons, 13/9/12; col. 384W.]

but there, as your Lordships will appreciate, he was referring to the general registers. These registers for all disabled children are scarcely used and many practitioners regard them as obsolete.

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[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Low, for moving Amendment 142A.

The new clause seeks to replicate Clause 76 in the Care Bill, which would establish registers for visually impaired adults. The RNIB has, understandably, raised concerns that such measures for those under 18 are missing from this Bill. I agree with the noble Lord about the critical role of the register in planning services. However, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of the Children Act 1989: the noble Lord, Lord Low, referred to the 1948 Act. This register includes blind children and young people; changes proposed through the Care Bill will not remove this duty. The RNIB, and the noble Lord, report that local authorities sometimes neglect their duty to maintain such registers. However, the same risk and difficulty would apply with the proposed new clause. It provides no greater statutory guarantee than that already provided by the Children Act.

We want to ensure that local authorities are effectively meeting the needs of blind or partially sighted children. There are a number of requirements in the Bill that should achieve this. Clause 22 requires local authorities to identify,

“children and young people in its area who have or may have special educational needs”.

Clause 26 requires local authorities to make joint commissioning arrangements that include consideration of the education, health and care provision reasonably required by local children and young people with SEN. Clause 27 requires them to review the special education and care provision that is available locally.

Together, these provide a clear framework that requires local authorities to plan for and meet the needs of children with SEN, including blind or visually impaired children and young people. Following discussion of this issue in another place, the Minister for Children and Families committed to give further consideration to these issues. Officials from the Department for Education met with the RNIB to agree a way forward. As a result, page 36 of the draft SEN code of practice highlights the importance of using the registers to plan services. The code states:

“Local authorities are required under schedule 2 of the Children Act 1989 to maintain a register of disabled children in their area. These registers are particularly helpful for providing data on low-incidence needs that can be difficult to predict from national data sets.”

The noble Lord, Lord Low, referred to low-incidence needs.

I hope this removes any doubt or misinformation that registers of disabled children are somehow no longer required. I hope that the duties in the Bill, along with the additional guidance added to the SEN code of practice, provide sufficient reassurance that we expect, and require, local authorities to identify and meet the needs of children and young people with a visual impairment. I therefore hope that the noble Lord, Lord Low, will feel able to withdraw his amendment in due course.

[Lord Low of Dalston]

I am grateful to the noble Earl for his response, which I shall want to read with care. At first blush, it does not really persuade me that the case I made when I moved my amendment has been answered. The noble Earl referred to the Care Bill and its provisions but those apply only to adults, not to children. He also referred to the general registers of disabled children which are maintained under the Children Act. However, as I have indicated, these do not seem to work very well and are certainly not visual-impairment specific. They do not, in any way, reproduce the visual-impairment specific registers which we have been used to using ever since the National Assistance Act. There has been long-standing provision for visual impairment registers and I cannot understand the reason for removing it from statutory provision.

The Minister referred to the code of practice and I will certainly want to look at that. Indeed, I will look carefully at the full text of what the Minister has said. However, at first blush, it does not seem to me that a reference to the Care Bill, the general registers maintained under the Children Act or the code of practice really amounts to the same sort of provision as visually impaired people and their organisations have been used to enjoying since the registers were introduced under the National Assistance Act. I do not really understand the reason for removing that provision.

All sorts of discussions have taken place between the RNIB and officials. I have not been involved in them and I would be very grateful if the Minister would agree to meet me to talk this through before Report in the hope that we can get a resolution of this matter. That would avoid the necessity to bring back further amendments which might be of a divisive nature on Report.

[Earl Attlee]

My Lords, I, or my noble friend Lady Northover, would be delighted to have any meeting as suggested by the noble Lord.

[Lord Low of Dalston]

I am very grateful to the Minister for that. I have experience of his courtesy and willingness to spend time discussing matters of mutual concern. I should be very glad to take him up on that offer. As I say, I hope that in that way we will be able to reach a resolution that will avoid me having to bring the matter back on Report. For now, I beg leave to withdraw the amendment.

Amendment 142A withdrawn.

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Moved by

[Lord Low of Dalston]

143: Clause 37, page 30, line 20, at end insert—
“( ) any social care provision which the local authority considers to be necessary in order to meet the needs of the disabled person under section 2 of the Chronically Sick and Disabled Persons Act 1970.”

[Lord Low of Dalston]

My Lords, Amendment 143 concerns the type of social care provision that should be included in education, health and care plans. Under Clause 36(2), the assessment process for an education, health and care plan should include,

“an assessment of the … social care needs of a child or young person”.

That assessment applies to social care provision from either children’s or adult services, depending on the age of the child or young person with an education, health and care plan. There is no disagreement with the Government in principle. Everyone agrees that an education, health and care assessment should include an assessment of a child’s or young person’s social care needs.

The disagreement concerns which social care needs should be assessed and then included in education, health and care plans. As drafted, the Bill states that following the assessment of social care needs a child’s or a young person’s education, health and care plan—EHC plan—must include the social care provision,

“reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs”.

That is set out in Clause 37(2)(d).

The problem I apprehend with the language in Clause 37(2)(d) is that it is language that cannot be found in any existing children’s or adult social care legislation. I cannot understand why we would want to create a whole new terminology in this Bill when we already have clear definitions in social care law. Amendment 143 is an attempt to address that disparity between existing social care law and the Children and Families Bill. The way in which the Bill is drafted appears to add a new definition of social care on top of the existing duties in social care legislation. That can only cause confusion and uncertainty for council officers and the children, young people and their families who use their services.

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[Lord Nash]

As I have said, there are very significant duties around disabled children. The plan is not intended to affect that. Amendments 162, 163 and 164 would prevent such local decision-making, to which I have just referred, creating an individually owed duty prioritising the social care needs of children with SEN over the social care needs of other children in need.

Similarly, Amendments 143 and 144A should not stand. Social care provision is defined deliberately broadly in the Bill. Clause 21(4) includes any provision required under the Children Act 1989 or the Chronically Sick and Disabled Persons Act 1970 and therefore will be included in the design of the local offer. It is only where that provision is reasonably required by the learning difficulty or disability of a child or young person that it will have to be included in the EHC plan.

Amendments 143 and 144A would require any services provided under the 1970 Act to be included in the EHC plan. However, the vast majority of services for disabled children that are provided under the 1970 Act will be reasonably required by the learning difficulty or disability of the child and therefore must be included in the EHC plan anyway.

On Amendment 143, moved by the noble Lord, Lord Low, we are not convinced that there should be a requirement that all services provided under Section 2 of the 1970 Act must be included in EHC plans regardless of individual circumstances. EHC plans are for children and young people with learning difficulties or a disability that gives rise to special educational needs. Where this also gives rise to health and care needs, that must be included in plans so that a co-ordinated approach can be taken across services. Where there are unrelated health or social care needs, it may or may not be appropriate to also include them in an EHC plan, for example, depending on whether the child or young person would benefit from a co-ordinated service response. I believe that those decisions should be left to local professionals, in full consultation with children, their parents and young people.

At the same time, Amendment 144A would remove the important discretion the Bill gives to the local authority to decide whether provision made under Section 17 of the Children Act should be included in the plan, where it is unrelated to the child or young person’s learning difficulty or disability. This discretion is essential as there may be circumstances where the children’s interests that we are trying to meet require that we do not bind the hands of local services in this respect—for example, where there is provision related to child protection, which is highly sensitive and is not always appropriate to include in an EHC plan. Whether or not social care provision is linked to the learning difficulty or disability of the child or young person, it will continue to be provided in accordance with existing legislation.

Concerning my noble friend Lady Gardner’s point about there being a possible gap between adult and children’s social care, I reassure her that young people aged 18 and over who are eligible for adult social care will, under provisions set out in the Care Bill, have a statutory care plan. For young people with SEN, our intention is that this should form the care element of the EHC plan. Both Bills contain provisions that will significantly improve the transition between children’s and adult social care. In view of what I have said, I urge the noble Lord to withdraw his amendment.

[Lord Low of Dalston]

My Lords, we have had an extremely good debate with some very cogent contributions from everyone who spoke in support of the concept enshrined in this group of amendments: that there is not a lot of point in specifying provision if there is no possibility of enforcing it. As I see it, my amendments were seeking only to give effect to the integrated approach between education, health and social care that has been the Government’s vision ever since they published the Support and Aspiration Green Paper.

Initially, the Bill simply contained provision for education but the department was badgered about putting in an integrated approach, so it badgered the Department of Health and, in due course, got it to cave in. A health provision was put in but, for some reason, we do not seem to have had the social care provision inserted at the point of provision. That seems extremely odd since, as has emerged in the debate, there are already provisions in the Chronically Sick and Disabled Persons Act for ensuring the provision of social care services anyway. I am not quite sure what the difficulty is in delivering social care, when there are already those statutory obligations in that Act to lock this legislation on to. It seems clear that there should be no difficulty in bringing in the social care provision, using the Chronically Sick and Disabled Persons Act as the vehicle.

The fact that needs are limitless and that it is wrong to privilege some children over others has been advanced by the Minister as a reason for not unifying the legislation. However, it seems to me that that splits off the enforceable obligations relating to social care at the wrong point. As the noble Baroness, Lady Sharp, said, if social care provision is specified in the plan then it should be provided. Otherwise, what is the point of the plan? If the authority thinks that it cannot provide certain services or cannot make certain kinds of provision, it should not put them into the plan. Providing for things to be specified in the plan without providing the legislative framework for securing the provision seems to be a mistake, and that view has prevailed throughout the debate.

There has been a strong head of steam in the debate about the need to provide an integrated legislative framework for enabling the enforcement of the social care provision specified in plans. The Committee has spoken strongly and pretty much with one voice on this, so we will need to return to it on Report. For now, I beg leave to withdraw the amendment.

Amendment 143 withdrawn.