Children and Families Bill

Lord Nash Excerpts

Wednesday 23rd October 2013 Grand Committee

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have tabled Amendments 69, 70, 90 and 91, and we have added our names to Amendment 223 in this group. We have had a very long debate and I hope that I am not going to repeat too much of what colleagues have said. I start by echoing the points that the noble Lord, Lord Low, made in his contribution. The first batch of our amendments very much dwells on that issue. It is important and it picks up the point that the noble Baroness, Lady Sharp has just made: it goes to our concerns about the heart of Part 3 of the Bill. We believe that, despite the very good intentions in the Bill to be inclusive, it appears that it still intends to exclude those with a recognised disability or chronic illness from a whole swathe of its provisions, and we believe that that is essentially still divisive.

We also feel that it is important that this issue is addressed and resolved now, at the outset, because it is a flaw that runs through the heart of Part 3. It needs to be tackled at this stage, not least because when we talked to the clerks about future amendments, they identified another 40 areas where we would have to table amendments to achieve a similar effect if we are not able to resolve it at the outset in the original definitions. So it is important that we come to a proper understanding and agreement with the Minister at this point about what is intended.

Our amendments, in common with those of a number of noble Lords, have sought to tackle whether the definition of SEN includes disability by amending the definition. Our intention and the way we have gone about it—a number of noble Lords have attempted to do the same thing—is to extend the scope of the Bill to refer to the definitions in the Equality Act 2010, to which the noble Baroness, Lady Howe, and others have referred. Our aim is to provide an overriding, inclusive definition which will apply throughout Part 3. We think that this is important and we feel that the arguments are overwhelming and compelling on this count.

The noble Lord, Lord Low, referred to research that we already have from the universities of Bath and Bristol, which was commissioned by the department and estimated at that time that in the region of 25% of disabled children may not have special educational needs. Indeed, that evidence was quoted by the Minister, Edward Timpson, in the Commons, when he said that,

“it is estimated that 75% of disabled children will also have special educational needs and so will be covered by the reforms”.—[Official Report, Commons, Children and Families Bill Committee, 19/3/13; col. 356.]

By definition, then, 25% are not. He also made it clear that the definition of SEN in the Bill mirrors the current definition, which, as we know, excludes many children. Again, noble Lords have cited statistics in that respect. The Minister himself took a similar line in his letter after Second Reading, in which he said that 75% of disabled children would be classed as having special educational needs. We have heard some examples this afternoon of the problems that this causes.

The noble Baroness, Lady Grey-Thompson, made the point very eloquently and we have heard other examples of children with a physical disability who, because the school was completely accessible, were not categorised as having SEN, or a child with serious health conditions that do not impact on their learning also not being classified as having SEN. We really need to bottom out whether it is the Government’s intention that such children would continue to be excluded from the provision in the Bill. This matters enormously because the truth is that assessment of SEN is the gateway in the Bill to all the other support provisions. As it stands, the joint commissioning provision and the local offer would be available to those defined as having SEN but not to the 25% who are not defined in that way. It would exclude the non-SEN children from health and social care provision to which some of them may already be entitled—we might be going backwards. This cannot be right and it goes against the whole ethos of the Government’s original proposals.

We know from this debate and from the level of correspondence and meetings that we have had that this remains a key ask of the sector; its frustration with the current proposals in understandable and urgently in need of resolution. The principles of the Green Paper were to make a system that would be simpler for parents, children and young people. At that stage, it was understood that education, care and health plans and the local offer would bring together current entitlements for disabled children and young people, regardless of what combination of education, health and social provision they require. That seems to us to a good principle, but we seem to have moved a long way from that excellent aspiration in the Green Paper.

Despite attending various meetings and briefings with the Minister, as well as looking back over the Commons debate, I have yet to hear a coherent argument as to why the Government are now insisting on this narrow definition of SEN, which appears profoundly to limit access to services. More recently we have heard that they do not feel that there is enough evidence that some groups of young people would be excluded from that provision but their own research seems to disprove that. Again, today we have heard examples of people which help to prove the point being raised.

Another argument seems to be that the code of practice will address some of those issues. Having looked at the draft code, it does not seem to shed sufficient further light on those key concerns. Anyway, reference to the code of practice is not good enough. We want this Bill to bring together all the different types of support that children need, which was promised in the Green Paper. That is key to ensuring that the needs of those children and young people are taken into account in joint strategic planning and commissioning, and that their educational progress is tracked.

I hope that the Minister will recognise the strength of feeling on this issue and put the sector’s mind at rest by agreeing to take this issue away to find a more acceptable, fully inclusive definition of SEN. If the Government intend the Bill to cover all children with a recognised disability or chronic illness, will he agree to work with us on a wording that would definitely and genuinely achieve that?

I now turn to the amendments tabled by the Government which address children with longer-term medical conditions. Again, we have added our name to Amendment 223 which addresses this issue. Obviously, we very much welcome the progress that has been made. It seems that the amendment remains quite general in its current form. I know that several other noble Lords have already posed questions to the Minister but I should like to add some of my own. How will a medical condition be defined and who will be covered by it? What is meant by the requirement for schools to “make arrangements” for support? Is that the same as a duty to secure the support? Where is the role of health authorities in working with schools on this? Why are requirements to consult parents and to provide appropriate staff training not set out more clearly? Perhaps more fundamentally—again, this challenge has been raised today—when will the draft guidelines be available and will we see them before Report?

We have had a good debate today. I am sorry to have held up the debate further but there are important questions that need to be answered. I very much look forward to hearing the Minister’s response. I hope that on all these issues he will continue dialogue to find forms of wording that will provide the necessary assurance to the sector on these issues.

[Lord Nash (Con)]

My Lords, this is our first debate on Part 3, and it has been excellent and extensive. I should particularly like to thank the noble Baroness, Lady Howarth, for her opening remarks. I thank all noble Lords who have contributed and shared their great experience and expertise. I am also grateful to those who have taken time over the summer to help me, as the new boy, to understand the issues and the history in this area, particularly the noble Lords, Lord Low, Lord Rix and Lord Ramsbotham, the noble Baroness, Lady Warnock, and my noble friends Lady Cumberlege, Lady Eaton and Lord Storey.

Before moving my Amendments 241A and 274 and respond to specific points in the debate, I hope that the Committee will find it helpful if I set out the context of our reform programme. Part 3 will deliver the biggest change to the system since the reforms that flowed from the report of the noble Baroness, Lady Warnock, in 1978. Her work transformed the lives of many children and young people, allowing them to enjoy the benefits that a high quality education can bring. We have seen other changes in law and society that have shaped this country’s view of disabled children, including such important legislation as the Disability Discrimination Act 1995 and the Equality Act 2010 and, of course, the great success of the Paralympics last year.

The changes we have seen for this group of children in our lifetimes and the challenges ahead were brought home strongly to me when I visited Chailey Heritage School with my noble friend Lady Cumberlege at the start of the school year. There I saw an institution that was founded out of charity to provide training in crafts to children born “crippled”, as it was termed then in the East End of London. Now it offers outstanding education, care and support to children and young people with the most profound and complex needs who, with excellent teaching, care and the aid of modern technology, are being supported to learn and to fulfil their great potential. Disabled children and children with special educational needs must all be treated first as individuals. They all have different needs. It is the Government’s concern, as I know it is of everyone in this room, to ensure that our services are supporting each of them and their families in the best way they possibly can.

I pay tribute to the work and legacy of the noble Baroness, Lady Warnock, and to the tireless work of many of your Lordships in championing the rights of children with SEN and disabled children. I also know that I do not need to tell you that, despite all the successes of the past 30 years, the current system is not working as it should. Fundamentally, successful reform will be about a change of culture. As we all know, it is tempting to think that by legislating a word here and a new duty there we can solve complex issues. However, what matters is how professionals work with children and families. Many noble Lords here have direct experience of the struggles that families can face. All of us know people who have had to fight to get the support that their child needs, grappling a faceless and apparently endless bureaucracy in a system that seems set up not to help but to frustrate.

This reform aims to change that. Its simple but ambitious aim is to unite services around the needs of the family, putting children, young people and parents at its heart. Legislation cannot do that alone but the Bill sets the framework to support the right ways of working. The detail is in the code of practice, which I hope noble Lords have now had the opportunity to read. It has been informed by the experience of the pathfinders. They are showing how services can come together and how families can help share the available support. I hope that those noble Lords who were able to hear from some of the pathfinders last week found their experiences both helpful and encouraging. I was struck then, and on my visits to pathfinders in Greenwich and Hertfordshire, how they were working with families to develop support that meets their needs and the impact that that support and the new ways of working were having in a much more co-operative environment.

Turning to the definition of SEN, this group of amendments reflects concerns that some children and young people might miss out on the benefits of the new system. A great many noble Lords have spoken about this and I apologise if I do not mention them all by name. It is not the Government’s intention to prevent any group of disabled children from receiving the support they need. We must ensure that all children who need support to access education because of disability or a special educational need can do so. The definition of SEN is deliberately broad:

“A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her”.

The Bill defines a learning difficulty or disability as,

“a significantly greater difficulty in learning than the majority of others of the same age, or … a disability which prevents or hinders”—

a child or young person—

“from making use of facilities”.

[Baroness Hughes of Stretford]

On that point, I wonder if the Minister will accept—as we talked about when we met him this week, and based on the contributions from others today—that there is a degree of circularity in language and in practice around this definition. As we heard from the noble Baroness, Lady Grey-Thompson, and others, very often the access to education and learning implications of a disability are not recognised by schools or local authorities as a special educational need and, under the definition of this Bill, if they are not recognised as a special educational need then they will not fall into the scope of the Bill. This is a big problem that everyone has been trying to clarify. I realise that it is very complex but we need to get to the hub of this. I would be grateful if the Minister could explain, outside the circularity of this language, why the Government are excluding the kind of young people that the noble Baroness, Lady Grey-Thompson, and others were referring to.

[Lord Nash]

I am grateful for the noble Baroness’s intervention. I shall take away all the points that have been made today and consider them further, including, I hope, understanding more clearly the point that the noble Baroness made. The Bill defines a learning difficulty or disability as significantly greater difficulty in learning than the majority of others of the same age, or a disability that prevents or hinders a child or young person from making use of facilities. This means that the majority of disabled children also have special educational needs, and we have seen from the pathfinders that they have taken a broad view of the definition in shaping their local offers and joint commissioning arrangements.

In addition to the SEN framework, there is other important legislation that protects disabled children and young people. The Equality Act 2010 makes it clear that all education providers and commissioners must make sure that reasonable adjustments are made for those with disabilities, including providing auxiliary aids and services such as specialised computer programmes, hoists and sign language interpreters. Parents can legitimately complain if education providers fail to deliver those adjustments.

Equally, in the health system there are legal protections. Section 3 of the NHS Act 2006 gives CCGs a statutory duty to provide health services to meet the reasonable needs of a child with a complex health need. Section 17 of the Children Act 1989 gives local authorities a general duty to safeguard and promote the welfare of children in need in their area. Together, therefore, the provisions in the Bill and existing legislative arrangements provide important protections and support for disabled children and their families.

Before amending the Bill, we need to understand which children might not be supported by these provisions and how changing the Bill would help them. I turn to health conditions and my amendment. A number of the amendments in this group—those tabled by the noble Lords, Lord Low, Lord Storey and Lord Kennedy, and the noble Baroness, Lady Howarth—concern children with long-term health conditions. I agree that children and young people with medical needs should not miss out on a full education simply because they have a medical condition. They should not be prevented from active participation in wider school activities that are so vital to their academic attainment and social well-being.

I have heard the evidence that suggests that current arrangements do not always work as they should. That evidence included a meeting with the noble Baroness, Lady Young, and the case made very powerfully by two young people, Beth and Max, whom she brought to see me. I find it appalling that some schools fail their pupils in such a fundamental way. While it remains the case that most schools manage this issue well, and it is important to acknowledge that, it would be wrong to ignore the instances of poor practice. Where there is poor practice, pupils can be placed at disadvantage or risk simply because they are not receiving the right support for their health needs.

Noble Lords will have heard me say on many occasions that this Government trust teachers and head teachers to run their schools and to adjust their provisions for the particular circumstances of their pupils. We believe that this applies to provisions such as PSHE and careers; all good schools should have an active programme on these matters, but they must be free to adjust to the local needs of their particular pupils. However, in the case of medical conditions, this is not a question of subjectivity. When a pupil has an epileptic seizure, there is a clear procedure that needs to be followed; it is not a question of interpretation. At certain times, a diabetic child will need more insulin or more glucose—it is as simple as that, and there is no scope for subjectivity. The same will apply to asthmatic pupils.

That is why I have tabled an amendment giving schools a new duty to make arrangements for supporting pupils with medical conditions and to have regard to statutory guidance when meeting the duty. I do not do that lightly; I am aware that many other duties could be placed on schools. However, ensuring that children who already have medical issues are not placed at further risk seems to me to be extremely important and obvious. This builds on the commitment made in the other place by my honourable friend the Minister for Children and Families to revise and reissue the managing medicines guidance for schools later this year, and I thank all noble Lords who have spoken in support of this amendment.

[Baroness Benjamin]

My Lords, will children with sickle cell disorder also be included? The Minister did not mention them in the list that he just gave.

[Lord Nash]

I reassure the noble Baroness that the amendment is not just about managing medicines but is about supporting pupils with medical conditions. We do not plan to set out a long list of particular medical conditions but I believe that we intend to cover her concerns in the regulations. I shall go on to explain how we might do that.

I am pleased to hear that news of the new duty has been warmly received by stakeholders. Unison has welcomed the guidance and what it will mean for its members. The Council for Disabled Children has said that this should ensure that the,

“needs of children with medical conditions … are fully met in school, enabling them to achieve the best possible health and education outcomes”.

Diabetes UK has described the duty as a “major step” to help to ensure that children with long-term medical conditions receive the support that they need at school. Those are just three among many stakeholders who have offered their assistance with developing the guidance, and signals strong commitment and determination to deliver guidance that will make a real difference.

The noble Baroness, Lady Howe, and others asked for assurance that we will really make this work. I have therefore asked officials to work with noble Lords who are interested, the Health Conditions in Schools Alliance and other partners, including unions, the Council for Disabled Children and the Department of Health, on the content of that guidance. I hope to be able to report on progress before Report. I note the point that the noble Lord, Lord Northbourne, made in this regard.

Early discussions have already taken place with members of the alliance and other stakeholders, focused specifically on the content of the guidance. We are fully aware of the need for the guidance to cover issues such as the role of school policies and the appropriate use of individual healthcare plans. Other key issues that we would expect to see covered in the guidance include staff training, co-operative working with healthcare and other professionals, and working with parents in the best interests of their children. In addition, we would expect that the guidance will signpost to good-practice case studies and other useful information relevant to specific medical conditions.

I assure the Committee that, in my view, advice from our stakeholders will be invaluable in ensuring that we get the content of the guidance right. Their help will be critical in enabling us to produce guidance that is accepted by schools and that is effective in helping them to support pupils with medical conditions.

[Lord Storey]

Can my noble friend clarify that the schools in Part 4 also include free schools and early-years settings?

[Lord Nash]

The answer is yes.

In developing the guidance, we would welcome discussions either bilaterally or by hosting a round table discussion, whichever is more helpful. Once the draft guidance is prepared, we intend to consult publicly before publishing a final version next year. This will give schools one term’s notice of when the new duty comes into force.

I have listened with interest to the debate on the other grouped amendments. I hope the Committee will agree that the amendment I have tabled will help to support a significant group of children, many of whom meet the Equality Act definition of disability, who previously may not have been explicitly covered by the provisions of the Bill. I would like to reflect further on the other points raised in debate today in relation to the other amendments before us and consider them further. In doing so, I would be grateful for the Committee’s help in providing specific examples of other conditions or other groups of children who are having their educational opportunities restricted, and who are not supported by either existing legislation or the provisions of the Bill as they currently stand.

The noble Lord, Lord Low, gave some specific examples, most of which would be covered by the amendment that I have tabled, but other examples would be helpful. It is always a pleasure to reply to the noble Baroness, Lady Grey-Thompson, who is one of our country’s greatest athletes—

[Baroness Butler-Sloss]

I have listened to this debate with great interest, very much as a novice in this area, although I have been governor of two schools where we had disabled children. I got the impression from what various speakers have said in this debate that there are problems for all disabled children, not just individual groups. The Minister should take away the problems of all disabled children in all sorts of schools.

[Lord Nash]

I thank the noble and learned Baroness for that intervention. Clearly, we all got that impression, but we would like help on precisely what category of children are not covered by the existing legislation. I will take away all the points made today and we will reflect further.

[Baroness Jones of Whitchurch]

Perhaps I may also push the Minister on a point of clarification? I have a quote from the Minister in the Commons, who said that the SEN provision was in line with the current SEN provision which, as we have heard, excludes a whole series of categories of children. Does the Minister endorse the view that the SEN definition has not substantially changed, and that whole swathes of children will fall outside that definition?

[Lord Nash]

The noble Baroness is right that the definition has not substantially changed. Our position is that most disabled children—75%, according to one study—have a special educational need, and the others are covered by other legislation, particularly after the amendment that we tabled today. I would be grateful for guidance on those categories of children that we may have missed and how we could help them further.

[Baroness Hughes of Stretford]

On that point, I think that it would be helpful, if we are to help the Minister, if he could first tell us which other legislation he thinks covers the other 25%, and then we can think about which other groups might not be covered. Is it not anyway the case that what the Government are attempting to introduce here is a new integrated system with a local offer attached? That would still mean that 25% of children could not be avail themselves of the integrated provision in the new integrated system proposed under the Bill.

[Lord Nash]

The Equality Act, the Children Act and the NHS Act are the relevant legislation, but I will provide further details and more granularity on that. I repeat that the Bill is about educational needs—but we will go away to consider this further.

On categories of children who are not covered by existing legislation, the noble Baroness, Lady Grey-Thompson, made the point about physiotherapy and missing school, among others. I would like to understand more about whether, in the modern day, children to which she referred would be covered by the Bill or existing legislation. In response to the concerns expressed by my noble friend Lord Storey about whether special educational provision includes provision to enable children to access education, the answer is yes. I will write to him with more details.

The noble Baroness, Lady Howe, asked whether the code of practice is intended to marry up with the Equality Act. The answer is that it does. We believe that it does—and we are clear that we must make appropriate links between SEN and the Equality Act duties in the code of practice, and are happy to look again at the scope for improving the draft code of practice on this.

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[Lord Kennedy of Southwark]

Looking at my Amendment 223 and the government amendment—I am very pleased with it—an omission is the NHS. My amendment places a duty on NHS bodies to co-operate with school governing bodies; the government amendment does not. I want to avoid coming back on this on Report. We are now so close to getting this. I do not want to find that the guidance is great and it all works fine, but that it all falls over because there are problems between the NHS and schools. Is the Minister prepared to facilitate a discussion between the NHS, the Department of Health and representatives here and elsewhere before Report to close that point? It would be wonderful.

[Lord Nash]

I am happy to stimulate that discussion. The guidance will make clear our expectation that schools, local authorities and health professions work together in the interests of the child. That is essential. I am happy to discuss this further with the noble Lord.

[Lord Low of Dalston]

My Lords, this has been quite a long debate. We have been going for nearly a couple of hours. It has been a very wide-ranging debate. I have not totted up the number of amendments that have been spoken to, but it seems to be 10 or a dozen. I am sure that at this advanced stage in the Committee’s deliberations this afternoon, your Lordships would not want me to make a full response on all the amendments that have been spoken to and to which the Minister has responded. I am not quite sure whether that is my role or whether I should simply respond to my own amendment, although I will not do even that in any detail. A lot of observations have been made and the Minister has responded. I believe that we all will want to read what everyone has said and what the Minister said in his response to this wide-ranging debate. Then we will know to what extent we want to focus on issues on Report. Certainly, a great many issues have been raised and I am sure that we will wish to return to some of them after having read and reflected on this debate. Having said that, I beg leave to withdraw my amendment.

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[Lord Ramsbotham]

Briefly, I support my noble friends Lady Howe and Lord Low on Amendment 219. I commend to the Minister, in forming the regulations, an enormous number of examples of good practice around the country which should be taken note of, as the noble Baroness, Lady Brinton, said. Some of them were drawn to attention in the report of my committee on the links between social disadvantage and speech, language and communication needs. We were fascinated that, for example, in Walsall, assessments were made of children in secondary schools. Nowhere else in the country could we find that being done in the same way. In Stoke, they were training lollipop men and dinner ladies to identify conditions in children which they might bring to the attention of the authorities so that they could be followed up, based on the fact that no longer is child development a requirement in teacher education, which I find an extraordinary state of affairs.

I speak here on behalf of a coalition called the Communication Trust, which would be more than happy to share all that it has learnt with the Minister and the officials responsible for drawing up the regulations to make certain that they incorporate as much as possible of what is already known.

[Lord Nash]

I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, for tabling their amendments on inclusive provision. I had the great pleasure of meeting the noble Lord, Lord Low, recently. I was grateful for his time and singularly impressed by his breadth of knowledge and wisdom in this area. As I said before, I am indebted to noble Lords for their help in developing my understanding.

Thankfully, we have come a long way since 1970, when some children were written off as uneducable. It was in the 1970s that the noble Baroness, Lady Warnock, and her committee of inquiry published their report. As I have already said, we owe a huge debt of gratitude to the noble Baroness and her committee, as their work led to the Education Act 1981 and the special educational needs framework, which did so much to improve the identification of and support for children and young people with SEN, particularly in the mainstream. Subsequent changes were made to that framework through the Special Education Needs and Disability Act 2001, which applied disability discrimination law to education and strengthened the right to a mainstream education where parents want it.

In 2012 this Government included the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty for schools under the Equality Act 2010. With the Bill, the Government are seeking to build on what has gone before and create a new framework to improve support for children and young people and increase choice for parents and young people. All the amendments in this group are concerned in some way with the principle of inclusion. The debate today has demonstrated that while we all share a common desire to improve provision for children and young people, we may differ on how that objective is best achieved. I hope that we can make much of our common ground and shared objectives as the Bill progresses.

I shall speak first to Amendment 65D, in the name of the noble Lord, Lord Low. I know that this is an area that was raised by the Joint Commission on Human Rights in its consideration of the Bill. This Government have taken action in a number of ways to support the objective sought by this amendment and to meet our obligations under the UN convention, which we take very seriously. I welcome the opportunity to set these out. In doing so, I hope to be able to persuade your Lordships of the case for giving effect to this principle in a range of ways other than by amending Clause 19. The Bill maintains the general principle of inclusion in a number of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need. It also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges, and seeks to improve the options available to them.

Beyond the Bill, as I have mentioned, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people; to promote equality of opportunity; to plan to increase access over time; and to make reasonable adjustments to their policy and practice. I want to make it clear that nothing in the Bill replaces or overrides those provisions. Indeed, we have drawn attention to those duties and set out examples of the reasonable steps schools and colleges can take to include children and young people in mainstream settings in Section 7(11) of the draft SEN code of practice. Chapter 6 of the draft code provides strong guidance to all mainstream early years settings, schools and colleges to ensure they have high expectations for all their pupils and students, provide high-quality teaching and have clear systems for identifying those who need additional support and providing that support as quickly as possible.

We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and recognise the key role played by the SENCO in this and other ways. A number of steps are being taken to support schools and colleges in developing their staff. The teaching schools programme is supporting the development of expertise in supporting children with SEN. We are also providing bursaries of up to £9,000 to high-quality graduates undertaking training programmes with a focus on teaching learners with SEN and £1 million in bursaries to support existing further education teachers in undertaking training to develop their specialist skills and knowledge to support those with SEN.

Following recommendations from the Rose review 3,200 teachers have obtained specialist qualifications in dyslexia and since 2009 10,000 new SENCOs have been funded through the master’s-level National Award for SEN Co-ordination with a further 800 places on this award in 2013-14. We worked with the Training and Development Agency—now the National College for Teaching and Learning—to develop specialist resources for initial teacher training and new advanced-level online modules on areas including dyslexia, autism and speech and language needs, to enhance teachers’ knowledge, understanding and skills. We have also funded the National Association for Special Educational Needs to deliver additional training in SEN for established SENCOs; this has now offered training to around 5,000 SENCOs.

We have also awarded contracts to a number of sector specialists including the Autism Trust, Communications Trust—to which the noble Lord, Lord Ramsbotham referred—Dyslexia-SpLD Trust and National Sensory Impairment Partnership to provide information and advice to schools and teachers. We have also provided resources in a number of other areas and I will be very happy to write to the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, with further details. Taken together, I believe these measures help mainstream schools to develop an effective approach to inclusion and help to equip teaching staff with the skills to support a broad range of pupils and students.

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[Lord Nash]

We do not accept it. We feel that we deal with it in the provisions that I have mentioned. I will be happy to discuss this further.

Inclusive and accessible provision is clearly an issue that many noble Lords feel strongly about and have genuine concerns. I hope that I have explained how the Government are approaching the issue and the steps that we are taking. As I said at the beginning of my response, I welcome the opportunity to meet noble Lords and will be happy to do so further on this point. In view of what I have said, though, I would be grateful if the noble Lord could withdraw his amendments.

[Lord Low of Dalston]

I am grateful to all those who have spoken unanimously in support of these amendments. I am particularly grateful to the Minister for his painstaking and comprehensive response. However, I am slightly reminded of a meeting that we had with DfE officials, before the Minister’s time, when after the meeting I said to someone, “How do you think that went?”, and he said, “Well, I think they agreed with everything we said provided it didn’t mean they had to change the Bill”.

I acknowledge straight away that we are in the same place, including the Minister and those on this side of the Table, in our support for the principle of inclusion, and that is a good thing. The Minister ran through a large number of measures that the Government are taking in support of the principle of inclusion, some of them legal and some of them other forms of support. I am inclined to regard them as what you might call “soft” measures—soft support for inclusion. However, the Minister wanted to steer away from anchoring the principle too firmly in hard law in the Bill. We were not seeking law that was too hard; the JCHR’s amendment is couched in terms of general principle and is not very coercive.

Amendment 157B simply seeks to achieve a common approach between the unsuitability limbs and the incompatibility limb by applying the “reasonable steps” obligation in relation to both of them. It is incontestable that both ought to be approached in the same way; it does not make sense to have a “reasonable steps” operation in relation to one but not the other. That is the position at the moment and we have an opportunity to put it right. There cannot be an objection to having a “reasonable steps” obligation at all in the legislation because it is there at the moment. What is wrong with the legislation is it is there in relation to one ground of objection but not the other; it seems only sensible to apply it to both. Then there is Amendment 219, which, as we have heard, is more wide-ranging.

I should not overlook the fact that the Minister made some reference to anchoring the principle of inclusion in legal form in the legislation, but it took the form of schools using their best endeavours. My heart sank a bit at that point, because it seemed to take us back to the Education Act 1981, which made the first tentative steps in legislation towards enshrining the principle of inclusion in legislation. There it was enshrined in terms of schools and authorities using their best endeavours. As the Minister made clear, we have moved on a bit since then, so to offer a best endeavours provision as a consolation prize for us in tabling these amendments is a bit disappointing.

However, I am grateful to the Minister for his offer to meet us to have discussions on these issues before Report. I am sure that we are all in the same place in wanting some clear recognition of inclusion in the legislation, and I hope that by a process of discussion we can come to agreement on a form in which to enshrine that in the legislation. On that basis, I am happy to beg leave to withdraw the amendment this evening.

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[Lord Ramsbotham]

The noble Lord has completely misunderstood what I was saying about Amendments 76 and 78. I suggest that the best thing is probably for me to talk to him and explain what I was trying to say, because that was certainly not my intention at all; it could not be further from it.

[Lord Nash]

My Lords, Clause 22 extends the current requirement on local authorities to exercise their powers with a view to identifying special needs to all children and young people aged from nought to 25. I am grateful to my noble friend Lord Addington for his support for that. Amendments 76 and 78 from the noble Lord, Lord Ramsbotham, would strengthen the local authority duty to identify SEN. There are many ways in which a local authority will identify children and young people, and each authority will know the most effective way to do so. Paragraph 2.2 of the draft code of practice makes clear that local authorities must carry out all their functions with a view to identifying where children and young people aged nought to 25 have SEN. The duty applies to all of a local authority's functions, not just those under the Bill. Paragraph 5.2 of the code further sets out the requirements for the local offer. It must cover the arrangements for identifying the special educational needs of children and young people across all the providers covered by the offer. That will for the first time bring together information on how SEN is identified across the area and give families and young people a chance to comment on its effectiveness.

On the points raised by the noble Lord, Lord Ramsbotham, about speech, language and communication needs, they are included in the definition of SEN. The code of practice refers specifically to speech, language and communication needs as an SEN, and data are collected annually on that. We recognise that identification may not always be what it should, and our new guidance in chapter 6 of the code of practice gives much stronger guidance on that.

Amendment 70A, moved by the noble Lord, Lord Ramsbotham, would ensure that pupils who receive more than one fixed-term exclusion did not fall through the net. There are already extensive protections in that respect. As a result of his representations and those of other noble Lords during debates on the Education Act 2011, statutory guidance to schools on exclusion reinforces the point that early intervention for poor behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have. It also sets out that head teachers should consider the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour. Chapter 6 of the draft code reflects that approach in providing guidance on identifying different types of SEN. However, schools need the flexibility to identify the most appropriate trigger for such assessments.

While I support the principle underlying this amendment, the steps that we are taking through the Bill and the revised code of practice already reinforce the importance of early intervention. Introducing an automatic trigger for an assessment of pupils’ learning difficulties could have the unintended consequence of creating a box-ticking exercise or lead to schools that are not certain delaying assessments until a second exclusion has occurred.

Concerning the point made by the noble Lord, Lord Touhig, about unlawful exclusion, the department’s statutory exclusion guidance sets out the responsibilities of schools and states explicitly that excluding pupils simply because they have additional needs or sending pupils home to cool off is unlawful. Any evidence of unlawful exclusion is taken seriously by the department and Ofsted.

Amendment 77, tabled by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hughes, emphasises that the identification of SEN should happen as early as possible. Clause 24 reproduces an existing provision that is designed to ensure that action is taken as soon as special educational needs are identified, rather than waiting until the start of compulsory education. For children under school age, health services are often the main point of contact, so it is important that they take action where they identify an issue. The draft code of practice sets out a number of practical steps that will support early identification, including early health assessments such as the hearing screening test, the progress check at the age of two, and an assessment at the end of the early years foundation stage profile at the age of five.

In addition, provisions in this Bill mean that in future anyone will be able to bring a child or young person who they believe has or may have SEN to the attention of a local authority. That includes parents, relatives, professionals, social workers and health visitors. Young people also may refer themselves. That is a significant improvement to the existing position that will help to avoid delays in identifying children and young people with SEN.

Amendment 80, tabled by my noble friends Lady Brinton and Lady Walmsley, raises the important issue of publishing data. We agree that that is important. The department already publishes local authority level data each summer on the number of schoolchildren with SEN and the prevalence of different types of need. Those data are contained in a publication called Special Educational Needs in England. We will continue to publish those data. The department also collects data on children in the early years through the Early Years Census. For post-16, the Educational Funding Agency and the Skills Funding Agency, through the individualised learner record, also collect data on young people in the further education sector on a range of types of need.

Amendments 82 to 85 in the name of the noble Lord, Lord Touhig, together seek to ensure that health bodies take action and notify parents and local authorities where they believe that any child or young person has special educational needs. The Clause 24 duty that I have already mentioned does not extend to children of compulsory school age because they will be enrolled with an educational institution responsible for ensuring that their educational needs are being met. It ensures that health professionals tell the local authority of young children not yet in education who may have SEN. That helps in the planning of support for when they enter education.

The responsibilities of early education settings in schools and post-16 providers for identifying and meeting special educational needs are clearly set out in the draft code of practice. On the point made by the noble Lord, Lord Touhig, about the role of area SENCOs in earlier years, page 70 of the new code of practice states that local authorities,

“should ensure that there is sufficient expertise and experience amongst local early years providers to support children with SEN”.

He goes on to outline the role of area SENCOs in the early years. This is the first time that this role has been included in statutory guidance.

I have set out how the Bill and code of practice together make extensive provision to increase requirements that pupils with SEN are identified as early as possible by whatever services they come into contact with, and that data are published on those identified needs. I hope that noble Lords will therefore not press their amendments.

[Lord Ramsbotham]

I am very grateful to all those who have spoken, including the Minister for his summing up. When I was Chief Inspector of Prisons I used to report on what I found, sometimes finding that Ministers had been given what we used to call the virtual prison, which was a description by other people of what they thought the prison ought to be or what they felt it was, which was not in agreement with fact. I must say to the Minister that I heard what he said, but I do not think that it agrees with the briefing that we have been given by practitioners on the ground. We may want a lot of that to happen, but it is not actually happening now. Far from wanting to have a tick-box approach, I would like to make certain that practitioners come together with officials—because the Bill is far too important to be let to go by default—to make absolutely certain that the things that the Minister said are put to the people who are saying that that is not happening. Then we can work out what the actual position is. In that case, I am very willing to withdraw my amendment.