Children and Families Bill

Debate between Lord Low of Dalston and Baroness Wilkins

Wednesday 6th November 2013 Grand Committee

[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.

Children and Families Bill

Debate between Lord Low of Dalston and Baroness Wilkins

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.

Children and Families Bill

Debate between Lord Low of Dalston and Baroness Wilkins

Wednesday 30th October 2013 Grand Committee

[Lord Low of Dalston]

My Lords, I shall speak also to Amendment 102 in my name. These amendments would specify that local authorities must publish information about the provision both within and outside their area “which is”, rather than “it expects to be”, available,

“at the time of publication for children and young people who have special educational needs”.

I have received a number of briefs that make the case for these amendments with considerable rhetorical flourish. However, the matter can be put much more simply.

The amendments simply require a local authority to call a spade a spade and to set out in the local offer what actually is the case, rather than what it “expects to be” the case, which is much more slippery and imprecise. Expects when? On what does the fulfilment of the expectation depend? Parents, practitioners and the special educational needs and disability sector are concerned that the language of expectation rather than actuality could easily be used to let local authorities off the hook and slide out of delivering what they had appeared to promise.

I should like to make a couple of other points. We should be clear about who the local offer covers and who it does not. Independent research by the University of Bath, to which we have already referred in these proceedings, has shown that 25% of disabled children and young people do not have a special educational need and as such will not be entitled to an education, health and care plan or to access the local offer because it is only for those with a special educational need. It is not clear how these 400,000-odd children and young people who have a disability but not a special educational need will secure the support they need if they are not entitled to access an education, health and care plan or the local offer.

Finally, I underline the importance of the local offer including provision which exists to meet the needs of children and young people with special educational needs outside the authority’s own area. This can be especially important in the case of those with particularly severe disabilities, who need to know about the full range of services, often consisting of highly specialised provision not available in the local area.

There is a concern that local authorities will provide information on provision available in only their own area. This is not the same as providing all the relevant information about what is available to meet special educational needs, including provision out of the local authority’s area. If out-of-area providers are routinely left off the list, it will undermine young people’s ability to access the provision which best meets their needs, as well as potentially threatening the viability of highly specialised but vital services.

Young people and families cannot be expected to find all this information about what may be of help to them for themselves without assistance. Local offers should be robust, accessible and effective in promoting choice. I therefore hope that the Minister will give serious consideration to accepting these amendments. I beg to move.

[Baroness Wilkins (Lab)]

My Lords, I shall speak to Amendment 104, which returns to the issue of funding. The amendment would require local authorities to include information about funding for SEN provision within their local offers.

I set out at the last meeting of the Grand Committee the concerns of the National Deaf Children’s Society, RNIB, Sense and many other charities that local authority spending cuts will fatally undermine this Bill. In her reply the Minister undertook to propose to her “far more significant” noble friend that their department might discuss this matter with the organisations concerned. I look forward to hearing whether any progress has been made.

In her reply to me in Grand Committee, at column GC 545, the Minister assured me that the Government were not cutting services for deaf children and set out the funding situation. However, we know from the National Deaf Children’s Society Stolen Futures report that many local authorities are already cutting support services for children with SEN. The society found that 29% of local authorities will be cutting specialist support services for deaf children this year.

The Government have argued that the Bill will improve transparency and accountability and that it is this which will enable parents to ensure that their local authority provides the services that their children need. However, on looking at the Bill and at the draft regulations and guidance underpinning it, nothing that I can see would require local authorities to be more transparent about the funding. If the local offer is intended to bring together all the relevant information about SEN provision in one place, in a way that is easy to understand, accessible and improves accountability, surely it must include information about funding. Without that parents will be powerless.

The local offer must give parents clear information about how much funding has been allocated by the authority to support children and young people with SEN; it must allow and empower parents to compare local authority spending; and it must allow parents to identify if cuts have been made from year to year. There is a clear need for transparency. The National Deaf Children’s Society had great difficulties in extracting reliable information about funding of specialist support services for deaf children from the local authorities.

In 2012, 49 local authorities—nearly a third—did not respond to freedom of information requests on budgets for deaf children’s services within the legal deadline. One local authority did not respond until six months later, and only after the Information Commissioner’s Office intervened. Its response confirmed a cut to the education service for deaf children. However, as this was not disclosed until so long afterwards, parents were denied any opportunity to legally challenge this decision before it had been implemented.

This is the battle that the parents and charities must face. If the Government were to accept this amendment and require local authorities to publish information about funding in the local offer in an easy and accessible way, it would certainly give parents and charities real leverage to get the services that they need.

Academies Bill [HL]

Debate between Lord Low of Dalston and Baroness Wilkins

Wednesday 7th July 2010 Lords Chamber

[Lord Low of Dalston]

My Lords, I wish to speak to Amendments 12 to 14 and to Amendment 39, all of which are in my name. I very much welcome government Amendment 11, to which the Minister has just spoken. In Committee, there was a widespread concern throughout the Chamber to ensure that academies were put on the same footing as maintained schools as regards admitting and meeting the needs of pupils with special educational needs. The Minister said then that he would reflect and come back with proposals on how parity could be achieved. As we have heard, he has been as good as his word. I am very grateful to him for this and for the time and trouble that he has taken to meet Peers to discuss their concerns. I am also most grateful to officials for the time that they have taken to make sure that we get this absolutely right.

For my part, I think that we have very nearly got it right, but not quite. That is why I have put down the amendments to which I am speaking this evening. I spoke on this at some length in Committee, so I shall not weary the House by going over the same ground all over again. The Minister has met very many of the concerns that I raised in Committee, but one or two issues still remain. The first is whether the new provisions will relate to existing as well as new academies. In moving his amendment, the Minister has clarified that because he has said that they will do so. However, I think he said that they would apply to existing academies when they entered into a new agreement. That could be some years away. I hope that the Minister can reassure us that steps will be taken to apply the new provisions to existing academies at the earliest possible date and not necessarily waiting several years before doing so.

Secondly, there is the question of whether obligations that are equivalent to the SEN obligations in the Minister’s amendment are the same in their effect as the SEN obligations. If not, it will be argued in court that Parliament’s decision not to make these obligations direct statutory obligations must indicate an intention to permit variation from the statutory framework. I should therefore be grateful if the Minister could confirm that the intention is for academies to be subject to exactly the same obligations as maintained schools as regards admitting and meeting the needs of pupils with special educational needs, which the notion of parity would imply.

My main concern is with the enforceability of the rights implied by these obligations. The Minister has chosen to confer the obligations by importing the statutory SEN framework into the contractual framework of academy arrangements. These are contractual agreements between the Secretary of State and an academy to which parents and pupils are not a party. There is a complex legal argument as to whether the duties imported into academy arrangements by this means are enforceable by parents or pupils. I shall spare the House all the legal technicalities, but there are essentially three ways that one might seek to ensure that the duties are enforceable.

The first is by laying on academies the same statutory obligations as those laid on maintained schools directly by statute, not by statutorily importing them into a contract. That is what my Amendment 14 would do and I still think that it is the simplest and surest way to achieve my aim, which is why I have tabled that amendment again and why it would save a lot of bother by putting everything beyond doubt, if the Minister agreed to it.

Assuming that the Minister’s preference is to proceed by the contractual route and to maintain the contractual relationship with academies, there are two further ways that one might seek to enforce the contractual obligations. One is through a complaints procedure and the other is by making it clear that pupils and parents can enforce their rights by judicial review.

As for complaints procedures, complaints would presumably be made to the Secretary of State, but there is nothing that establishes such a procedure and nothing is proposed. Even if there were, it would need to be clear that if the Secretary of State found that an academy had not complied with the relevant provisions of the academy arrangements, he would require the academy to comply, and the arrangements would need to make clear that he could compel compliance. This would place a considerable additional burden on the Secretary of State, whose process for dealing with complaints is already widely perceived to be slow and ineffective—as is illustrated by the fact that it is never suggested by defendants in proceedings for judicial review that the court should decline jurisdiction because a complaint to the Secretary of State would provide an effective alternative remedy.

As for judicial review, the availability of this remedy could be put beyond doubt simply by making clear that the rights accorded to pupils and parents under academy arrangements could be enforced through judicial review. This could be done on a narrow basis relating to SEN only, as is provided for in Amendment 12, or on a wider basis covering all rights given to parents and pupils, as provided for in Amendment 13. Amendment 12 would sort out the problem relating to special educational needs, but would, if anything, weaken the position in relation to other rights—say, those relating to admissions—because it would imply that those rights could not be enforced through judicial review.

The Minister has shown himself to be very accommodating of our concerns in the quest to achieve full parity between academies and maintained schools. I hope that further discussion may be possible before Third Reading, with a view to finding a formula which would ensure that enforceability is not only a reality, but is seen to be a reality, either through a robust complaints procedure or by putting it beyond doubt that judicial review is available as a remedy.

Something along the lines of Amendments 12 or 13 would do the job for judicial review, and I have suggestions for a robust complaints procedure that I would be happy to put to the Minister. Amendment 39 begins the job, but even that requires fleshing out in some respects to reflect the ingredients of a robust complaints procedure. If the Minister would be happy to proceed along these lines, I am sure that we could reach an arrangement that would put enforceability beyond doubt and would be satisfactory to everyone. If full parity is the Minister’s aim, I cannot see a reason not to do this.

[Baroness Wilkins]

My Lords, I echo the thanks of the noble Lord, Lord Low, to the Minister for all his time and the concern that he has given to this issue. I support the noble Lord, Lord Low, in his amendments and hope that the Minister will meet his concerns and satisfy him fully.