Children and Families Bill

Lord Nash Excerpts

Monday 4th November 2013 Grand Committee

[Lord Lingfield (Con)]

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

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

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

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

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

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

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

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[Baroness Jones of Whitchurch]

I am very grateful to the Minister for accepting one of our amendments. That is progress. However, I want to press the Minister on Amendment 131. I think I heard the Minister saying that, yes, of course the needs of families would be considered, but only if it was a social care issue. He referred to another piece of legislation. I have two points about that.

First, I would have thought that it made sense to bring everything into this one piece of legislation, rather than to refer people to other outstanding legislation that might apply, and I thought this was what we were aiming to do. Furthermore, I question whether saying that the needs of the family should be considered only when it is a social care issue is the right way to go about this. I thought that the idea of the Bill was to look at education, health and social care in the round, and I would have thought that the families’ needs and capabilities should be looked at in all three aspects of that, to reflect the way that they are going to impinge on the facilities provided for the child. I query whether this should be limited to social care.

[Lord Nash]

My Lords, I am grateful to the noble Baroness for making this point, and we will go away and think about what she has said.

[Lord Patel]

My Lords, I thank the noble Lord for his comments on my amendment. I did not think that the earlier provisions he referred to made it clear that alternative providers of education could initiate an EHC plan, but if his reassurances confirm that, then I am content. I will, however, read exactly what he said and look at the clauses again. I felt the earlier clauses did not clarify that, which is why I tabled the amendment.

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[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.

[Lord Nash]

My Lords, I am grateful to all who have spoken in this important debate. I know that we all share the same concern to ensure that young people who need educational provision up to the age of 25 will receive it. I hope that I can offer some reassurance and will be delighted to discuss the matter further with my noble friends Lady Cumberlege and Lady Sharp, the noble Baronesses, Lady Howe and Lady Howarth, and others if that is not the case. I will first respond to those amendments regarding the genuine worry that the various clauses which require local authorities to “have regard” to a young person’s age when they are over 18 will give local authorities the ability to refuse to assess a young person or to cease their plan based solely on age.

From the outset, I would like to state categorically that this concern is unfounded. Local authorities cannot make decisions based on a young person’s age alone. The legislation requires local authorities to maintain EHC plans while it is necessary for special educational provision to be made for the young person in accordance with a plan. The draft code of practice makes this completely clear, stating in Chapter 7 that local authorities must not make decisions based only on the fact that a young person has turned 18.

Let me be clearer still: our vision is for a system that is ambitious for children and young people with special educational needs. There is no hidden agenda to cut costs or to reduce the number of families we want to help. Instead, we want a system that raises the aspirations not only of children, young people and their parents, but of those professionals working with them, and that has high expectations about what children and young people with SEN can achieve. Our ambition is that with the right support and opportunities, many more of these young people will have completed their education and made a successful transition to adulthood at the age of 18, along with their peers. Our vision is that where young people need longer to complete or consolidate their learning, they are able to remain in education and continue to receive co-ordinated help and support through their EHC plan—until the age of 25 if necessary.

What we must not do is create an expectation in law that all young people with SEN will simply stay in formal education until age 25. Creating an automatic right for all young people with EHC plans to remain in education for that long would dilute the focus on outcomes that we want throughout the new system and particularly from year 9 onwards. Local authorities could delay proper consideration of outcomes until after age 18, by which time it is likely to be too late, and many young people will simply drop out of the system at that point, as happens now. Worse, it could create a cliff-edge at age 25, when support would have to end for all those with EHC plans regardless of whether outcomes had been met. Surely the focus must instead be on supporting them to achieve outcomes and make a successful transition to adulthood, wherever possible, along with their peers. We need to end the presumption of failure attached to special educational needs and make sure that local authorities are doing all that they can to help many more children and young people with SEN achieve positive outcomes by age 18.

Turning to the point made by my noble friend Lady Cumberlege about the word “must”, we think that adding it to Clause 45 would serve to create an expectation that all young people with EHC plans should remain in education until after 25. On the question of why we refer to 18, and not 19, a young person aged over 18 has the legal meaning of a person who is aged 19 to 25, and it is our intention for the clause to apply to 19 to 25 year-olds. I hope that that provides some clarification.

The noble Baroness, Lady Howarth, asked why we use the phrase “have regard to age” at all. Following pre-legislative scrutiny, the Education Select Committee stated that there was confusion about whether the Bill created an entitlement for young people with EHC plans to remain in education until 25. It recommended that we make that clear in the Bill. Including the phrase “have regard to age” is our best solution to address that recommendation. It simply requires local authorities to take a young person’s age into account as part of a range of things that they must consider when making decisions. All other suggestions that we have had err on the side of creating a presumption that young people should remain in education until 25 unless certain conditions are met.

Young people with SEN over the age of 18 must be supported to remain in formal education where this will enable them to complete or consolidate their learning, achieve outcomes and make a successful transition to adulthood. Local authorities must, in consultation with young people, consider whether that has already been achieved by the time compulsory participation ends at age 18 or whether the young person needs, and indeed wants, further support through an EHC plan. We have made it clear in the draft assessment and plan regulations and code of practice that the EHC plan process should prepare and support young people for adulthood, facilitating a successful handover to new opportunities and support in the adult world. That transition planning must start from year 9 of a child’s schooling and continue until they have left formal education and made a successful transition to adulthood. This includes enabling young people to access learning opportunities, such as those offered by the Chailey Heritage Foundation, which prepare young people to live more independently. Such opportunities are a vital part of what is needed and I am grateful to my noble friend Lady Cumberlege for enabling me to see at first hand, in an extremely impressive and moving visit to Chailey, what a difference such approaches can make to the lives of those with complex needs.

Not only do our reforms protect the current position for those aged 19 to 25, they go further by creating a legislative requirement for local authorities to focus on outcomes and prepare young people for adulthood. In addition, where young people disagree with decisions made by local authorities, they now have—for the first time—the right to appeal to the tribunal.

It is right that once these educational outcomes have been achieved, local authorities should no longer be required to maintain EHC plans. Young people with ongoing health and social care needs will continue to receive those from the relevant services; that will not stop simply because they no longer have an EHC plan. Young people who have made a successful transition to adulthood and are now in employment, higher education, adult learning and so on will continue to receive support in those settings to enable them to maintain and build on the outcomes achieved while in formal education. For example, Access to Work is available for those in employment, Disabled Students’ Allowances for those in higher education and so on.

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[Baroness Sharp of Guildford]

My Lords, I have added my name to Amendment 164 and I endorse what has been said on this issue by the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth. The aim of the Bill is to create not just a special educational needs statement but something that embraces health and social care as well. It is absolutely right that we should put social care on a par with health. Clause 42(3) states:

“If a plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person”.

The other place insisted that this subsection should be included, so it seems right that social care should be put on a par with healthcare and education in the Bill.

[Lord Nash]

My Lords, I would like to respond to this group of amendments regarding the placing of a legal requirement on local authorities to secure the social care provision specified in EHC plans. I welcome the opportunity to debate this important issue and I understand the desire to ensure that our most vulnerable children and young people receive the support that they need and are able to seek redress where necessary. I thank the noble Lord, Lord Low, my noble friends Lady Gardner and Lady Sharp and the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth, for speaking on this matter. However, as my honourable friend the Minister for Children and Families noted in the other place, there are already important protections for children and young people aged under 18 in the existing legislative framework for social care support. That is provided in Section 17 of the Children Act 1989, and for disabled children under Section 2 of the Chronically Sick and Disabled Persons Act 1970. Both these Acts will still apply alongside the measures being introduced in the Bill.

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[Lord Nash]

The duty under Section 17 of the Children Act 1989 to meet the needs of all children in need is a general duty in recognition of the fact that social care needs are potentially limitless and that local authorities have to be free to decide how to prioritise spending on them, depending on resources. There is individually a duty under Section 2 of the Chronically Sick and Disabled Persons Act 1970, but that too is subject to resources.

[Baroness Howarth of Breckland]

I apologise for intervening. Having been a director of social services and having had to set those priorities, I understand completely what the Minister has said, but what I do not understand here is that if all these things are already set out in statute and are “may” duties, not “must” duties, as the noble Baroness, Lady Hughes, pointed out, why can we not pull them all together in this Bill? It would make it a fine Bill rather than a good Bill. Nothing is being added if the Minister is saying that the Chronically Sick and Disabled Persons Act and the children legislation already have these things. Are the local authorities not going to have to set their priorities anyway?

The other point I want to make is that we will have education and health but not social care; social care will again be relegated as the poor relation. I have not seen how the pathfinders have looked at this, but if they have considered them all as one, that would be a good indicator of the way forward.

[Baroness Hughes of Stretford]

Before the Minister responds, perhaps I may also give him the opportunity to deal with a point. He seems to be making a distinction between social care, special educational needs and healthcare. He said that there is a general duty in the Chronically Sick and Disabled Persons Act because social care needs, and therefore duties, are essentially limitless. That is why local authorities must be protected so that they can decide their priorities in the context of their resources. However, surely the same argument could be made about healthcare. Health needs and their care are essentially limitless, so the health service has to decide on its priorities in relation to its resources. Yet here the health service “must” provide the services set out in the plan while the same does not apply to social care. I do not see the distinction, certainly not between social care and healthcare in regard to the point about being essentially limitless.

[Lord Nash]

I am grateful to both noble Baronesses for their interruptions. As I said in my letter—and will now elaborate on a little—the reason is that we do not wish to imbalance the system so that giving children EHC plans results in deprioritising other children, given a climate of limited resources, which we all know —I hope—that we live in.

It is expected that any social care service specified in the EHC plan will be provided. We do not want to create a situation where local authorities specify only a bare minimum of services, because they cannot know the precise resource constraints that may apply in the future.

Noble Lords will be aware that the Bill places a duty on health commissioners—taking the point of the noble Baroness, Lady Howarth—to deliver the health elements of an EHC plan. As part of the SEN reforms, the Government have agreed to take specific action to protect children and young people with EHC plans within the newly reformed NHS. The education and health services are universal and it makes sense that there should be equivalent duties to provide the services in EHC plans. On the other hand, social care support for children in need is targeted only at those with greater needs, of whom disabled children form a significant proportion. As I said in my letter, to which the noble Baroness, Lady Hughes, referred:

“There is a greater risk that an individually owned social care duty for children with EHC plans will adversely affect other vulnerable children whose needs could be deprioritised, such as those needing child protection services or young carers”.

Social workers must be free to consider family, educational, social and environmental circumstances and local eligibility criteria when determining which services to provide. Local authorities with finite resources must be able to prioritise appropriately those children and young people with the greatest needs, whether or not they are disabled or have SEN.

[Baroness Sharp of Guildford]

I apologise for interrupting the Minister again. The amendments concerned say that it is where the plan specifies social care; it is not an open sesame to any sort of social care. If what is specified can be overruled anyhow, what is the point of having a plan that specifies it?

[Lord Nash]

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

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

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

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

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

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

[Lord Low of Dalston]

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

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

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

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

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Moved by

[Lord Nash]

148: Clause 37, page 30, line 25, leave out “and maintenance” and insert “, maintenance, amendment and disclosure”

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[Lord Addington]

My Lords, perhaps I may briefly add something. It has been a tradition that the independent sector has periodically supported the state system in specialist areas. If we are to use specialist support and help here, then making sure that it is stated up-front that that is possible will probably be more helpful than otherwise.

[Lord Nash]

My Lords, this group of amendments concerns independent specialist provision. I thank all noble Lords who have spoken in this debate. I particularly thank my noble friend Lord Lexden for his Amendments 153, 157 and 159, which seek to ensure that independent schools, including those specially organised to cater for children with special educational needs, continue to play an important part in SEN provision.

Currently, parents can request that a maintained school is named in a statement of special educational needs. The local authority is then under a qualified duty to name that school and, if so named, the school has to admit the child. The Bill extends to young people the right to ask for a particular institution to be named in an EHC plan and the coverage is extended to a wider range of institutions. Parents or young people will also be able to ask for an academy, including a free school, a further education or sixth-form college, a non-maintained special school or an independent institution approved under Clause 41 to be named in an EHC plan. The local authority will then be under the same qualified duty to name the institution and the institution will be under the same duty to admit the child or young person. For this change to be of real benefit to parents and young people, it is important that, when a parent or young person requests one of these institutions, the local authority is under a qualified duty to name that institution in the EHC plan and that the institution is under a duty to admit the child or young person.

Turning to Amendment 153, I understand my noble friend’s desire to ensure that parents and young people can ask for any independent school to be named on an EHC plan and not just those on the list under Clause 41. I reassure my noble friend that parents and young people will be able to make representations for any independent school, and the local authority must consider their request. In doing so, it must have regard to the general principle in Section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. Paragraph 7.11 on page 111 of the draft SEN code of practice makes this clear. Of course, the local authority would not be under the same conditional duty to name the school in the EHC plan as it would in the case of an institution approved under Clause 41, and the school would not be under a duty to admit the child or young person.

My noble friend’s amendment would place local authorities under a duty to name an independent school in an EHC plan with no guarantee that the independent school would admit the child or young person, leaving the local authority unable to fulfil its statutory duty to secure the special educational provision in the plan. As we have heard many times from noble Lords in this debate, it is important that children, parents and young people are clear about what they are entitled to. This is key to their confidence in the new system.

Turning to Amendments 157 and 159, I reassure my noble friend that Clauses 39 and 40 require the local authority to consult the institution which might be named in an EHC plan, including an independent special school or independent specialist provider approved under Clause 41. This will allow meaningful discussions, especially if a school or college feels that it cannot make appropriate provision to meet the pupil’s needs. After this consultation, the authority will name the institution that it feels is appropriate. If it is decided that an institution approved under Section 41 is appropriate and that institution is named in the EHC plan, the institution is under a duty to admit the child or young person. It is important to remember that only those institutions that have chosen to apply to be approved under Clause 41 and are subsequently approved will be under such a duty.

Amendment 158, tabled by the noble Baronesses, Lady Hughes and Lady Jones, and the noble Lord, Lord Touhig, seeks to protect the right of children, young people and their parents to choose the school or institution named in their EHC plan. I agree with the intention behind the amendment—the importance of a person-centred system is at the heart of our reforms. The Bill places specific duties on local authorities to consult a child’s parents or a young person while drawing up an EHC plan. Clause 38 requires the local authority to send the draft plan to the parents or young person and to make clear their right to make representations about its contents, including the right to request a particular school or institution. In the event that a parent or young person is not satisfied with the school or institution named in their EHC plan, they have recourse to mediation and an independent tribunal.

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[Baroness Howarth of Breckland]

My Lords, I spoke at more length than is usual for me on this when I raised it, under Clause 30, in relation to the arrangements to assist young people and parents managing a personal budget, should they choose one. I therefore wish to support the noble Baronesses, Lady Hughes and Lady Jones, on Amendment 180. It is clear that some families find that personal budgets bring them freedom, and freedom of choice, but only if they have help in understanding how to manage that budget. I agree with the noble Baronesses that this is little researched, yet we have more information from the adult services which could be looked at. Some of the problems for these young people and for the families of these children will be the same as those experienced by adults who have disabilities. There is no reason why we should not be able to gather that information together and extrapolate from it into some of these areas.

I certainly have grave anxieties about this moving forward quickly, and not only on behalf of the parents and young people. If it is not thought through, in terms of funding, there is a grave danger that educational institutions that depend on payments could find themselves unable to plan; if families have personal budgets with which to pay for the educational element, it could cause serious difficulties. I therefore support the amendment, which moves forward on personal budgets to give families freedom—where there is proper research—but takes it steady so that we do not cause even more difficulties than we already have in the adult field.

[Lord Nash]

My Lords, I would like to speak to this group of amendments concerning personal budgets and the recommendations of the Delegated Powers and Regulatory Reform Committee on personal budgets and Clauses 54 and 55, on appeals and claims by children.

I first turn to Amendments 180, 271 and 273 and government Amendment 269, which respond to recommendations from the Delegated Powers and Regulatory Reform Committee.

I hope that the noble Baronesses, Lady Hughes and Lady Jones, will be pleased to note that government Amendment 269 to Clause 107 takes forward the advice of the DPRRC, as sought by Amendments 271 and 273. Amendment 269 will require affirmative resolution by both Houses of Parliament for the first order to be made under Clause 49(3) and for affirmative resolution in both Houses, in relation to Clause 54(2), on pilot schemes for appeals by children.

With Amendment 180, the noble Baronesses, Lady Jones and Lady Hughes, also seek assurance that the pilot scheme for direct payments for special educational provision will be evaluated. I am pleased to be able to reassure noble Lords that we are meeting the commitments, given when the pilot scheme was established, to evaluate the scheme. For example, the Process and Implementation Research Report on the pathfinder programme, published by the department in June, includes a standalone chapter on the testing up to March this year.

However, we recognise that there is more to learn. That is why, as the noble Baroness, Lady Jones, mentioned, we established our accelerated testing group of pathfinders, whose work has been fundamental in developing the draft regulations made under Clause 49 and section 7.13 of the draft code. It is also why we have asked the evaluators of the pathfinder programme to deliver a standalone thematic report on this subject in 2014.

The specification for the report has yet to be finalised, but it will involve in-depth work with a small cohort of pathfinders and include further research on how direct payments for special educational provision have operated. In addition to the thematic research, I should stress that this is not the only source of evidence to support this policy. A quick comparison of the indicative code, published to aid consideration of this Bill in the other place, against the consultation draft, shows how far our knowledge and understanding have developed this year. This knowledge continues to grow. Pathfinders are increasingly offering personal budgets to all new EHC plan-holders with a resultant increase in numbers. We have also recently supported the development and publication of an implementation framework, for personal budgets for children and young people, by In Control and SQW, the pathfinder evaluators that are widely acknowledged to be the experts in this field.

We are therefore confident that we will have the knowledge and understanding to make the regulations ahead of the initial implementation of our reforms in September 2014, while accepting through my Amendment 271 that the House must have the opportunity to debate this issue further before we do so.

I turn to Amendments 176, 177 and 179. I completely agree with my noble friend Lady Sharp that schools, colleges and other institutions need to retain control where provision is delivered on their premises. I hope that Regulation 11 in the draft regulations to be made under Clause 49 reassures my noble friend, as it states:

“A local authority may not make a direct payment in respect of agreed provision which will be used or provided in a school or post-16 institution unless the head teacher, principal or the person occupying an equivalent position at the school or that institution agrees”.

Amendment 179 brings the issue of transparency to our attention. I agree that this is extremely important and is a key point of learning from the pathfinder programme, in relation to personal budgets. I hope that I can reassure my noble friend that we have made comprehensive provision in draft regulations and the draft code of practice.

Regulations to be made under Clause 30 will require that the local offer provides information about how to request an assessment for an EHC plan. The draft code of practice builds on this requirement and explains in section 5.2, on page 34, that this should include information about eligibility for personal budgets.

Draft regulations relating to Clause 49 set out the right of parents to request a review and require the local authority to provide in writing the reason for any decision to decline a request for a direct payment. Again, the draft code builds on this requirement. Section 7.12 states:

“The decision making process to establish and agree a budget should be clear and must be open to challenge, with parents able to request a review of decisions in relation to direct payments”.

With these reassurances, I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

Can I just ask for a point of clarification? I thought that the Minister was beginning to say that he agreed with our Amendment 180. That would be lovely, but I just want to clarify the timescale on this. As I understand it, the pathfinders are due to finish in June next year. The Minister then said, I think, that a report would be written by September 2014. Is the idea that when the Houses reconvene in October 2014 they will have before them a report that we would then agree through an affirmative process before the personal budget regulations have gone ahead? That is my question; it is quite simple.

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[Lord Nash]

I think I will have to respond to the noble Baroness in more detail. I think the top and bottom of her point is that we will try to do it in the timescale, but I understand that that may not be possible. I will come back to her on this.

[Baroness Sharp of Guildford]

I am very grateful to the Minister for his reassurances, about the role that school or college principals might play when direct payments are proposed and it is not necessarily in the interests of either the child or economy and efficiency to proceed along that route, and that the process of decision-making will be an explicit one.

I am also glad to have the assurance that, when decisions are made, they will take account of the pathfinders and that the process will not be put into effect until the full evaluation has been made. I welcome government Amendment 269 implementing the recommendations of the Delegated Powers Committee relating to the positive agreement of the House that we should go forward with this. In the light of this, I beg leave to withdraw the amendment.