Children and Families Bill

Lord Low of Dalston Excerpts

Wednesday 6th November 2013 Grand Committee

[Baroness Hughes of Stretford (Lab)]

My Lords, I support Amendment 181, moved by the noble Lord, Lord Storey, to which I have added my name. I shall also speak to Amendments 182 and 272. To some extent, we are rehearsing today, in these amendments, some of the arguments that we had earlier this week about social care. They concern the fundamental question of how serious the Government are about instigating a new system that is integrated right through from the point of early identification, assessment, provision and appeal.

As the Bill stands, we have integrated assessment, at least in the EHC plans, but we do not have equal accountability in terms of integration of provision because of the social care situation. Here we do not have integration from the very important perspective of parents’ and children’s experience in relation to appeals. Therefore, I strongly support Amendment 181, which would add social care and healthcare provision specified in EHC plans to the First-tier Tribunal as a mechanism of appeal. I would be grateful if, in his reply, the Minister would go beyond what he has already said to us, which is that there are established routes of complaint about social care through local authority complaints procedures and the Local Government Ombudsman, and clear and specific routes of redress within the NHS, its complaints processes and the health ombudsman.

Anybody who has tried to help a family to negotiate those two avenues of appeal will know how complicated they are. In addition, it is very important that, in relation to the substance of the complaint—as opposed to maladministration—they do not end up with an independent adjudication between the views of the complainant and the views of the service provider. The parents in this case would have to, for example, fully exhaust the local authority’s own complaints procedures as a first step; that could take many months. Of course, that adjudication is not independent; it is the local authority adjudicating on the complaint. They can then go to the Local Government Ombudsman, but that person will adjudicate only on the principle of maladministration—that is, on whether the authority has not followed the proper procedure. He will obviously not adjudicate on the substance of the complaint. It is a similar situation in relation to health.

Therefore, if the parent has to negotiate those two systems, it can take a very long time. Many noble Lords will have had a number of pieces of correspondence from Jane Raca, who is a lawyer and author and has a 13 year-old, very disabled son. She outlines the detail of the Local Government Ombudsman procedure and shows that it takes months and sometimes years. I know from my previous constituency experience that that is the case and, furthermore, it does not actually judge independently on the substance of the complaint.

The other important point is the one made by the noble Lord, Lord Storey, that—by their nature, and this is very welcome—EHC plans are meant to integrate an assessment around social care, health and special educational needs. A severely disabled child is likely to have needs in all three categories, so a parent might have concerns or complaints about all three categories of need. Under the current arrangements, as the noble Lord, Lord Storey, said very clearly, they would be faced with the almost impossible task of appealing through three different systems at once, at the same time as coping with a very disabled child and probably other children in the family. That is just not reasonable. If we came at this through the vision of the parent contemplating that system, it would look impossible. It would defeat many of us, let alone parents coping with very disabled children. Therefore, I really hope that the Minister will take this on board and see this very important and welcome principle of integration right the way through from assessment to appeal.

Our Amendment 182 would oblige the Secretary of State to publish information about special educational needs cases going to the tribunal. We feel it is important to bring much needed transparency into the system and put an end to practices by some, though not all, local authorities, such as systematically taking cases to court, keeping the cost down in the knowledge that many families will not challenge a decision or spend any money on legal fees, in order to avoid having to pay for the provision in the first place—taking the step early of going to appeal, rather than trying to get a local resolution. Whatever the Government decide, it is important that we regularly review which kind of cases are going to the tribunal and their outcomes, and that we have this information published regularly.

Amendment 272 simply ensures that the detail of, and any change to, the provisions in Clause 51(4)—that is, the regulations laid to provide for appeals to the First-tier Tribunal—will be subject to an affirmative resolution procedure through statutory instrument. It is right that Parliament should be able to comment on the proposals for appeals that the Government put forward.

[Lord Low of Dalston (CB)]

My Lords, I support the amendment of the noble Lord, Lord Storey, to which the noble Baroness, Lady Hughes, has also just spoken. The general point must be right: there has to be a unified route of appeal. There is no way that parents can be expected to endure the hassle and aggravation of pursuing three separate appeals or complaints if they are not satisfied with the provision that they are receiving.

This would simply be to answer the bureaucratic hassle identified in the Green Paper and the Lamb inquiry as driving parents to distraction by adding yet more layers of bureaucracy. I assume that the Government have just been defeated by their own bureaucracy in delivering a unified route of appeal; maybe this will give them some insight into how parents feel. To that, I simply say that they need to go away and try a bit harder.

I mainly want to pursue a more detailed point. It is clear that the parent can appeal to the Special Educational Needs and Disability Tribunal, or SENDIST, about the educational provision. As for health, the local authority must include in the EHC plan, health provision reasonably required by the learning difficulty or disability that causes the special educational needs, and health commissioners must secure that provision. However, it appears that the health commissioner has a veto. The draft regulations say that the health commissioner must agree the health provision. This raises the question: what recourse has the parent if the local authority does not include the health provision in the plan or the health commissioner does not agree it?

If the health provision is directly related to and supports the educational provision—for example, speech and language therapy delivered at school—the parent can appeal to SENDIST. However, if it is purely health provision—for example, if it is delivered at home—what opportunity does a parent have? I ask the Minister: what opportunities do parents have to challenge its non-provision or non-inclusion in the plan? The Government may answer by referring to the NHS complaints procedure but, quite apart from the point that this involves the parent pursuing a second and separate challenge, I am not sure that a complaints procedure is really the most effective way of enforcing the provision of something to which they feel they are entitled.

Similar arguments might presumably be made in relation to social care provision, except that in that case the complaint would be a separate one against the local authority. I would be most grateful if the Minister could respond to these points when he comes to reply.

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[Lord Nash]

The noble Baroness, Lady Morris, makes her point powerfully and well. I entirely agree with her about the necessity of changing the culture and that in some cases we may be dancing on the head of a pin and what matters is the practicality at the coal face. We need to make sure that we attempt to do this practically and fairly so that we do not unreasonably advantage one group of children over another, as my noble friend Lady Perry said. We will try to ensure that, with further dialogue between now and Report, we all understand where we are on this.

[Lord Low of Dalston]

I did not quite follow the point that the noble Baroness, Lady Perry, made when she talked about the danger of privileging children with special educational needs over other children. The fact is that we have a separate system that children with special educational needs can get into, and if they do not have them they cannot do so. However, for those who can get into the system it is surely right that it is the best possible system that we can make it and is immune from criticism on the sort of grounds that have been advanced this afternoon regarding the need for a single point of redress.

[Lord Storey]

I very much welcome each contribution on this amendment and thank the Minister for his response. I want to reflect carefully on what he has said. I agree with the noble Baroness, Lady Perry, that we would have to consider carefully any suggestion of inequality or people being treated differently. As always, the noble Baroness, Lady Morris, puts her finger on the issue. Those of us who have worked in education know that the culture of social services and health services—please do not take offence—is often different from that of education services, and friction and difficulties can often occur.

When I was researching this topic, I was thinking, “Yeah, come on; it makes sense to have one single point of appeal, doesn’t it? Who could argue against that?”. But then people say to me, “Oh no, because, because, because”. I would want to test that a little more thoroughly. It would have been interesting if the Government had put it the other way around and said, “We want you to make this work. Never mind your different cultures; we want one point of appeal. Go away and do it”. When they come back with the work we would then see whether it was possible. I really want to interrogate this issue because it surely makes sense.

Finally, I thank the Minister and welcome his comments on Amendments 183 and 184. I beg leave to withdraw the amendment.

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[Baroness Wilkins]

I support this group of amendments. I am mildly dyslexic, and I assure noble Lords that in terms of daily frustration, it is a million times more frustrating than being in a wheelchair. There is a great deal of support for being in a wheelchair, but there is very little support for being dyslexic. The Government are to be admired for their commitment to apprenticeships, and it seems a tragedy that it should be undermined in this way, so I beg the Minister to accept these amendments.

[Lord Low of Dalston]

My Lords, the noble Lord, Lord Addington, has had a pretty good run for his money and has got not only unanimous but very voluble support from the other Members of the Committee. I would not detract from that one whit. I support every word he said and what others have added, but I wonder whether I may crave the Committee’s indulgence to make a slight change of subject.

I shall speak to Amendment 192 in this group, which is tabled in my name and the names of the noble Lord, Lord Touhig, and the noble Baroness, Lady Sharp. It is a probing amendment which would require schools to retain the current system of school action and school action plus. We may not have formulated the amendment perfectly, and I am sure there is room for plenty of discussion about how it might be focused or targeted more precisely. I am anxious to learn more about the Government’s thinking in seeking to abolish the current stages of school action and school action plus. As we know, the Government are replacing that graduated approach with a single SEN category. The amendment refers to schools, but my concerns also relate to how early years settings and post-16 institutions will meet the needs of children and young people with SEN.

My reason for tabling this amendment is that, like the Government, I believe that policy should be developed on the basis of robust evidence. Changing the way the SEN system operates in every English school and early years setting could be very disruptive. We need to be sure that any change will genuinely improve outcomes for children and young people before we embark on what is quite a major change. From what we have heard so far, it seems that the Government’s intention here is to improve the identification of special educational needs. The Ofsted report, A Statement is not Enough, published in 2010, suggested that some children and young people were being wrongly identified as having special educational needs.

Improving the identification of special educational needs is a goal everyone would support. However, my understanding is that the Ofsted report did not in any way indicate that the problem resided in the graduated approach of school action and school action plus. The same is true of the Lamb inquiry, which also picked up on the issue of identification, but did not indicate in any of its 51 recommendations that the problem arose from school action and school action plus. Neither of these important investigations proposed the removal of the current system, so I wonder on what evidence the Government are basing their decision to move to a single category of SEN. Everyone has been encouraged by the reference in the recently published draft code of practice to “a graduated response”. Since the Government remain committed to a graduated response, which is provided by school action and school action plus, one wonders why they are so insistent on the need for this change.

I should also like to pick up on the fact that the draft code of practice removes guidance on the use of individual education plans. IEPs were a key feature of the school action and school action plus system. They set out educational targets, the agreed SEN support and how progress would be measured. They require schools to involve children, young people and their parents in the process and are vital for parents when holding schools to account. When used properly, IEPs are a simple and effective way of recording targets, putting support in place and tracking the child’s progress. While they might not always be used as effectively as they might be, would it not be better to seek to improve the way IEPs are used than to scrap them altogether?

The Government are not opposed to schools retaining these types of records. The draft code says that schools should keep records and that these can be shared with parents. Again, therefore, one is prompted to ask why the Government are getting rid of something so valued by parents when they continue to support the principles behind it. I would be extremely grateful if, when he responds to the debate, the Minister could set out the Government’s thinking and give us the rationale for these changes and, in particular, the evidence on which they are based. It seems that the Government still support the principles of a graduated approach and keeping good records, so it is important that we understand why we need what is really quite a major change.

[Baroness Perry of Southwark]

I have no wish to continue this debate for too long. I first declare the interest that I, too, have a very dyslexic granddaughter. The fact that so many of us are able to point to younger family members with dyslexia marks how much better diagnoses have got in the past 20 or 30 years. Previously, people were very often thought to be rather stupid, so the diagnosis has greatly improved things. We have come a very long way in providing good diagnoses and excellent treatment at school level. Dyslexic boys and girls get a tremendous amount of help in school: they get more time for their examinations, technological help and so on. In the university world, there is enormous help: large numbers of dyslexic young people taking final examinations get special help, extra time and all that is necessary. It seems absurdly wrong that, at a time when we have expanded apprenticeships—and like the noble Baroness, Lady Walmsley, I am immensely proud of what this Government have done about apprenticeships—we have left this lacuna in the middle of the provisions. Schools do well and universities do well, yet when it comes to apprenticeships we have this absurd drafting of legislation—probably a slip of the pen—which makes it impossible for dyslexics, and people who have other handicaps to do with writing and speaking, to get through. I hope that the Minister will not just say that it is all okay and that nothing needs to be done. I really believe that something could so easily be done in this legislation now, and this is a good opportunity to do it.

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[Baroness Howarth of Breckland (CB)]

We could talk about both these amendments all night. I just want to say two sentences. First, I agree with the noble Lord, Lord Storey. It is not about the name but about what will happen in the process on the ground in relation to that amendment. Returning to the noble Lord, Lord Addington, I agree with the noble Baroness, Lady Sharp. We need to focus on the very narrow issue of ensuring that this process can be taken forward. Quite frankly, the Labour Government should have got this into their apprenticeship legislation when they brought it forward in the previous Parliament. If the Minister cannot do what the noble Lord suggests, I hope he will take this away, look at it and come back on Report. That is the simplest way, and it is achievable.

[Lord Low of Dalston]

I entirely agree with the noble Lord, Lord Storey, and the noble Baroness, Lady Howarth, about the name. It is not the name that is important. What is important is that we have a graduated approach and that we have some way of institutionalising that so that there can be no doubt that that is the system being operated.

[Earl Attlee]

My Lords, I am grateful to all noble Lords who have spoken in this debate. Turning to the suggestion made by the noble Lord, Lord Touhig, I am a new kid in this school, but I intend to survive the next reshuffle, whenever that may be.

The amendments in this group all seek in different ways to amend Clause 62, which puts a duty on appropriate authorities to use their best endeavours to secure special educational provision. It is clearly a very important issue.

In answer to my noble friend Lord Addington, I have not heard too much from him, and I doubt I ever will. I suffered from mild dyslexia when I was young, as did my father. I struggled with maths and English, but in engineering workshop theory and practice, I got a grade 1 assessment and O-level, whereas in maths I got 9 double-minus.

On Amendment 192, the noble Lords, Lord Low and Lord Touhig, along with my noble friend Lady Sharp are absolutely correct to emphasise that schools should match the support that they provide to the child’s needs. This is known in practice as a graduated approach, and we are going to keep it. I agree with my noble friend Lord Storey and the noble Baroness, Lady Howarth, that it is not so much the name that matters but the approach.

The new SEN code of practice replaces school action and school action plus with a simplified approach to SEN support. This focuses attention on the individual needs of the child, requires schools to review how effective their support is and involves parents much more closely. This is exactly the sort of graduated approach that I believe the noble Lord, Lord Low, and other noble Lords are calling for.

The noble Lord, Lord Low, in effect asked for evidence of the need for change. We are making these changes because, as Ofsted’s 2010 review of SEN found,

“current systems focus too much on whether pupils receive additional services, and too little on the impact of their support”.

In the other place, my honourable friend the Minister for Children and Families made a commitment that, while developing the code, we would refine these proposals through work with a broad range of experts. Since then, officials within the Department for Education have met academics, school leaders, members of the Special Educational Consortium and more than 300 SENCOs. We are extremely grateful to all those who gave their time. As a result, I believe that the current code provides a much clearer framework for schools, informed by those working directly with pupils.

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[Lord Addington]

My Lords, to give the noble Earl, Lord Attlee, a rugby analogy—good players catch bad balls and take the tackle. The noble Earl has been tackled, stood on and everything else—it has all happened—but I congratulate him on being man enough to stand up to it in the first place. The subtext that I take from the response is, “Oh, it can happen but it does not”. I am afraid that that is not good enough; it is more of the same with regard to what I have already spoken about. Technical assistance is provided in the Access to Work programme; it is not just a question of DSAs. The thinking appears to be that we help dyslexics by providing them with a government grant from another department to enable them to go to work but we do not let them take a qualification. We provide that metal box with those little gadgets on the side of it to allow someone to function after they have obtained a qualification, but not before. The point about English and maths just does not stand up for anybody who requires minor assistance, and never did. I will, of course, withdraw the amendment but I do not want to come back in two or three years’ time, or wait for another Bill, to correct the position. I do not think that anybody’s interest, including that of the Minister, would be served by going through this again.

[Lord Low of Dalston]

My Lords, just before the noble Lord withdraws the amendment and sits down, I would say to the Minister, on behalf of the Committee, that, as was said in relation to Amendment 192, it is not the form of words that matters, it is the outcome. As regards this amendment, I think what the Committee is saying to the Minister is that it is not the meeting that matters, it is the outcome.

[Lord Addington]

I thank the noble Lord, Lord Low, and say to him that the grouping of these two very important amendments did him no favours. I would have commented further on that matter if I had felt there was time to do so. I think that we have gone as far as we can today but we must have an end game soon. I beg leave to withdraw the amendment.

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Moved by

[Lord Low of Dalston]

206: Clause 67, page 48, line 4, at end insert “in a plain English style and make it available on the internet”

[Lord Low of Dalston]

My Lords, I rise to move Amendment 206 and shall speak also to Amendments 207 to 209. I will do these two things separately as Amendment 206 deals with one issue and Amendments 207 to 209 deal together with a somewhat separate but interrelated set of issues. I hope that I will be able to do both fairly briefly.

Turning first to Amendment 206, it would require that a plain English version of the code of practice should be made available. Much of the detail of the reforms contained in this Bill will be enshrined in the code of practice. Indeed, the code of practice will be the Bible, both for providers and users of the system. I recall an experience I had when I was one of the founder members of the Special Educational Needs Tribunal back in 1994. We attended a training session and somebody came along to brief us on the old code of practice. She said, “Well, I expect that you would like me to tell you what are the most important parts of this code of practice that you need to be most familiar with. What I am here to tell you is that you need to be fully familiar with it all”, so it is obviously a crucial document. The new code of practice will be the same as the old one in that respect. It was—and the new one will be—a crucial document, and I am sure that we are all most grateful to the Government for making the latest draft available in time for the Committee. That shows just what a crucial document it is.

It is also a very lengthy document—more than 170 pages—and although it will no doubt be subject to change over time, it will remain quite a complex document, so it is incumbent on us to ensure that the document is made as accessible as possible to young people and their families. A version of the code that provided clarity about a person’s rights and choices, made readily accessible in plain English, would be extremely valuable. As the Plain English Campaign has stated:

“The law is the most important example of how words affect people’s lives. If we cannot understand our rights, we have no rights”.

There are precedents for the use of plain English versions, for example, in relation to the Localism Act, so I hope that the Minister will agree to this amendment to ensure that families do not have to grapple with an impenetrable document and get the information that they need made easily accessible to them

Turning to Amendments 206 to 209, at first sight, the Government, with their Amendments 210 and 211, have gone a long way to meeting what these amendments were asking for. Indeed, I readily acknowledge that the Government’s amendments are very helpful, but they do not take us all the way. In two respects they do not take us all the way. Amendment 207 specifies a 90-day consultation period, which I think is perhaps more in accord with usual practice. The Government’s Amendments 210 and 211 seem, at first sight, to concede all that the amendments are asking for in terms of the code needing to be approved by the affirmative procedure in both Houses of Parliament. The wording of these amendments is a bit opaque but, when you unravel it, it becomes clear that the affirmative procedure is being conceded in relation to the first iteration of the new code, but not in relation to subsequent iterations which are simply subject to the negative procedure. The Delegated Powers and Regulatory Reform Committee pointed this out in its report last week, I think, and said that if the Government are conceding the affirmative procedure in relation to the first iteration of the code of practice, they are effectively conceding that any subsequent iteration of the code needs the affirmative procedure.

I therefore think we will want to continue to push Amendments 207 to 209. While expressing gratitude to the Government for the distance that they have moved with their Amendments 210 and 211, I express a little disappointment that they have not moved all the way and, indeed, made the further concession that the Delegated Powers and Regulatory Reform Committee has suggested is essentially implied by their concession of the affirmative procedure for the first iteration of the code of practice. I beg to move.

[Baroness Hughes of Stretford]

My Lords, I support Amendments 207, 208 and 209, to which I have added my name. I think we are all very clear that the code of practice is a very important document, as the noble Lord, Lord Low, has just said. It will determine the detail of implementation of the Government’s legislation in a very marked respect. Therefore, the mechanism by which the code is approved, and then subsequently revised, is also very important.

We have been round the houses somewhat with the mechanism of approval. There was a great deal of pressure from the Delegated Powers and Regulatory Reform Committee in response to the Government’s initial proposals that the code of practice, even in its first iteration, should be subject to the negative resolution procedure. As the noble Lord, Lord Low, has just said, the Government have conceded that the first iteration should be subject to the affirmative procedure. That is very welcome. However, as he also said, the most recent report from the DPRR Committee said that although that is welcome,

“there is nothing in the Government’s response to suggest that revisions to the code will necessarily be of any less significance or importance so as to warrant a lower level of scrutiny. Accordingly, we remain of the view that the case has not been made for applying the draft negative procedure, and for this reason we consider the draft affirmative procedure should also apply where the code is being revised”.

That is what Amendment 209 would achieve.

I will just briefly mention Amendments 207 and 208, because they also deal with some aspects of the Bill that are not being redrafted by government Amendments 210 and 211. Clause 68(2), in particular, says that, in putting forward the code or any revisions:

“The Secretary of State must consult such persons as the Secretary of State thinks fit”.

We think that it should not be the decision of the Secretary of State as to who he or she consults about the code but that there should be a public consultation lasting 90 days, which is what Amendment 207 in particular would also achieve.

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I hope my responses on these points have reassured noble Lords of the intention behind our Government’s amendments and of our understanding of the importance noble Lords rightly place on the code and its approvals process. I therefore ask the noble Lord to withdraw his amendment.

[Lord Low of Dalston]

I am very grateful to the Minister for his careful response and the way in which he dealt with the arguments and to all other noble Lords who have spoken in support of my amendments. As I say, I am very grateful to the noble Lord but I am not entirely persuaded. I think he said that the previous code had been introduced in 2001 and that, because of the pressure on parliamentary time, it had not been possible to find any time to update it between then and now. I cannot believe that it would not be possible to find any parliamentary time—not a lot is required—for a debate on the affirmative procedure. I find it hard to believe that one could not find any time in 12 years, so I was not entirely persuaded there, nor, it seems, was the Delegated Powers and Regulatory Reform Committee. However, I will not press the point any further at this stage, so I beg leave to withdraw the amendment.

Amendment 206 withdrawn.