Children and Families Bill Debate
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Lord Nash
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Children and Families Bill
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Baroness Hughes of Stretford
My Lords, I shall briefly, but strongly, support both amendments. On Amendment 34A, the noble Baroness, Lady Howe, has fully explained her concerns, which I share, about the possible consequences of allowing specialist SEN academies to admit children without an ECH plan. That seems to run counter to the principle of inclusion and it also seems dangerous to admit children without that comprehensive assessment of their specific needs. I hope that the Minister will respond positively to that point.
When the noble Lord, Lord Low, moved Amendment 16A in Committee, he rightly said that although the code of practice had improved guidance on inclusion, in the Bill as it stands, inclusion is not referred to anywhere. Given the commitment of the Government and of noble Lords across this House to increase access to mainstream schools and to act in accordance with the recommendations of the JCHR, it seems very odd that this overarching principle is not enshrined in the legislation.
The purpose of the amendment is to insert that general principle alongside other general principles that are included in the Bill. As the noble Baroness, Lady Warnock, has said, this is not about pushing inclusion above everything else; it is about parental choice. At the moment, because local authorities and schools have not moved far enough towards making mainstream schools accessible to disabled children, many children are denied that choice.
Clause 19 sets out other key principles to which local authorities must have regard in fulfilling their obligations under Part 3: the wishes and feelings of children and their parents; the importance of child and family participation in decisions; providing adequate information; and supporting the child’s development and educational progress. Those are all very important. But equally important, I would argue, is the principle that local authorities should seek to maximise the opportunities for inclusion.
As the noble Lord, Lord Low, told us, when the Minister was arguing against the amendment in Committee, he said that the Bill maintained the general principle of inclusion in a number of other provisions and went on to list some of them. He also said that schools and colleges had important duties under the Equality Act and he told us about other measures that the Government were adopting to help mainstream schools improve their ability to include disabled children more effectively. However, he did not tell us why the Government would not accept this amendment alongside the other general principles that appear on the face of the Bill. If the Minister is not minded to accept the amendment today, I hope that he will not rehearse that information as we have already heard it and it is on the record. What we really want to know is why he will not accept the general principle of inclusion sitting alongside the other principles in Clause 19. That would send a strong signal to all educational settings, and to local authorities, that they must up their game and move closer and faster to being able to offer places to disabled children. That would catalyse a very positive and marked shift. I hope that the Minister will accept the amendment today.
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Warnock and Lady Wilkins, for tabling Amendment 16A, and the noble Baroness, Lady Howe, for tabling Amendment 34A. I had an extremely helpful meeting with the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, recently, and I am grateful to them for helping me to understand these issues. As noble Lords know, they are, of course, immensely knowledgeable on this matter. They have spoken eloquently about an issue that I know is important to many in this House—inclusive provision for children and young people who have SEN or are disabled. We have had an informed and passionate debate.
Amendment 16A picks up a recommendation from the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, a member of the committee, mentioned. The Joint Committee welcomed the Bill as containing,
“a number of provisions which … enhance the UK’s implementation of some of the relevant rights of children and young people”.
Those include the general principles in Clause 19; the extension of education, health and care plans to young people up to 25; the requirement for academies to be covered directly by the statutory framework for SEN; the duty to provide SEN information to children and young people; the measures to ease transition from children’s to adult services; the explicit reference to assist in preparation for independent living in a local offer; and the provision of direct rights of appeal for young people and the proposed piloting of children’s rights of appeal. However, the Joint Committee felt that including a principle on inclusive provision in Clause 19 would demonstrate the Government’s commitment, under the UN Convention on the Rights of Persons with Disabilities, to the progressive realisation of the right to inclusive education.
I make it clear at the outset that the Government are fulfilling their commitments under the UN convention. The Bill maintains the general principle of inclusion and does so through some 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 and holds a presumption for inclusion in relation to choice of schools and colleges through Clause 33. However, 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. That is entirely consistent with the reservation and interpretative declaration that the Government made to Article 24 of the UN convention recognising special schools as part of the general schools system.
Beyond the Bill, as we have discussed in previous debates, local authorities, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to increase access over time and to make reasonable adjustments to their policies and practices. Indeed, it was this Government, in 2012, who included schools in the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty under the Equality Act. I made a commitment in Grand Committee to look at the scope for improving the links to the Equality Act duties in the SEN code of practice and I am happy to reaffirm that commitment now.
We have previously discussed the inclusive schooling guidance. One of the striking findings in the responses to the Green Paper Support and Aspiration was that nearly half of those who responded to a question about the guidance did not know that it existed. That is why we put the key elements of it into the code of practice. I am happy to consider how the code of practice can be further improved in that regard. In view of all that, we do not believe that it is necessary to add to the principles in Clause 19 to fulfil our commitments under the UN convention. The principles in Clause 19 are designed to underpin the key features of the reforms, placing the views, wishes and feelings of children, young people and parents at the heart of the system and placing a focus on improving outcomes. They apply irrespective of where children and young people are educated.
We have heard in other debates about the important role that specialist provision plays in supporting disabled children and young people and those with SEN. The noble Lord, Lord Low, referred to the importance to parents of having that choice. Amendment 16A could run the risk of being perceived as a threat to specialist provision and as encouragement to local authorities not to place children and young people in specialist provision where that is appropriate for meeting their needs and where parents wish it, and could threaten the viability of high-quality provision for children and young people with SEN. I know that that is not in any way the purpose of the amendment, but it is an example of the kind of balance of arguments that we have to weigh.
The Government take very seriously their commitment to the convention. In addition to the provisions in the Bill and the government amendments on disabled children and young people that we will be debating later, we have taken a number of practical steps to build the capacity of mainstream schools and colleges to support children and young people who have SEN or are disabled. I spoke about these in Grand Committee. The noble Lord, Lord Low, referred to them as “soft measures”, but I would not describe them as such. They are certainly extensive. I will not go through them in detail, because I know that noble Lords have heard this before. However, we have invested considerable sums of money in training: there are over 10,000 new SEN co-ordinators, a number of schemes to develop the training of SEN, we have made grants to the Institute of Education, and we are involved in many other projects.
Chapter 6 of the draft SEN code of practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need additional support and provide 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 we recognise the key role played by the SEN co-ordinator in this and in other ways. In addition, as noble Lords know, the Bill now includes a new clause on supporting children with health conditions. Noble Lords will see that a number of government amendments have now been tabled to include disabled children and young people with SEN in the scope of a number of key provisions in the Bill. I will speak about those amendments shortly.
On Amendment 34A, tabled by the noble Baroness, Lady Howe, I understand her concerns and those of other noble Lords about the provisions in Clause 34(9), but I hope to reassure them. Clause 34(9) would enable a child or young person with special educational needs but without an EHC plan to be admitted to an individual special academy or special post-16 academy whose academy arrangements permit this. The admission of children or young people without EHC plans to special academies or special post-16 academies would be limited to those academies where the Secretary of State for Education had specifically agreed to permit that in the funding agreement in relation to specific types of children.
I reiterate what I said when we debated this issue in Committee. This is not a blanket policy and it is also definitely not part of any dark plan. On the contrary, the Government’s intention is to facilitate innovative new approaches and provision for the benefit of children and young people with SEN. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy and would consider its educational merits and viability. Indeed, we have approved 16 free special schools. All are able, as things stand, to apply to the Secretary of State to have the competence within their funding agreements to admit non-statemented pupils. That is the status quo. Only one has so applied. They were approved to admit, on a temporary basis only, children with autistic spectrum disorder or with specific communication and language difficulties, but as far as we know none has been so admitted.
Concerns have been expressed by the noble Lord, Lord Low, the noble Baroness, Lady Howe, and others that children and young people might be forced into special provision and parents coerced by local authorities into placing their children in special schools. We will ensure safeguards against that are in place. First, the relevant academy’s funding agreement must stipulate that the special academy or special post-16 academy could admit only children or young people without plans who had a particular type of SEN set out in the agreement. Changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority and by parents, and a lack of demand for statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the academy only if their parents or the young person had applied to go to it. Thirdly, the child or young person should have those particular needs and their admission should be supported by a relevant professional opinion, such as that of an educational psychologist. Of course, parents of young people will continue to have the right to ask for a statutory assessment of their child’s needs to be undertaken and a right of appeal to the tribunal if the local authority decides not to carry one out. The academy would also have to adopt fair practices for such admissions in line with the principles of the school admission code. We would take very seriously indeed any instances where these freedoms were being abused. Very significantly, the new secondary accountability, the best eight progress measures, will become the main measure by which we assess the performance of all maintained schools and academies. This new approach will strip away the previous perverse incentives and will hold schools to account for the progress made by all their pupils, not just blunt measures of absolute attainment at grade C. This will move schools that have focused too much on those pupils who can achieve a C grade to focus on the progress of all their pupils and should particularly benefit SEN pupils in those schools.
Baroness Hughes of Stretford
My Lords, Amendment 17 would, for the purposes of Sections 22, 24, 25, 26, 27, 30, 32 and 62 of Part 3, include children with a disability under the Equality Act. It would interpret children and young people with SEN to include children and young people with a disability as well. The Government have tabled a number of amendments, I think, to achieve the same thing.
I will be very brief as this is not now contentious, given that the Government have moved on the issue, but my amendment would ensure that key clauses that relate to identifying children with needs, duties of the health authority, joint commissioning arrangements, the duty to keep provision under review, the local offer, advice and information for parents and so on would all now apply equally to disabled children without a special educational need under the terms of the Equality Act. This is important, not only in principle, but also in its practical effects, particularly for the local offer, which we will debate later on Report. The local offer is particularly important for children with a disability but without a special educational need because that is now to be the only way in which they can get services that they and their families need. It is very important for the local offer, particularly Clause 26 on the joint commissioning arrangements between health education and social care. When they are looking at what is needed in an area they will have to take into account the needs of all children with a disability, including those without a special educational need, which was not the case under the Bill as it was drafted.
I very much welcome the Government’s concession here, as far as it goes. The Minister knows that I would have preferred to have an amendment to apply the whole of Part 3 to children with a disability as well. That would have achieved a truly inclusive, integrated and comprehensive system for all disabled children, whatever their disability and whatever the extent of their need. Many feel that this was the promise of the Green Paper. However, we have come part way and that is to be welcomed.
Turning to the government amendments, I think that my Amendment 17 has the advantage of being completely comprehensible when you read it, but the 40-odd government amendments are not so easily understood. I understand that it has been done in this way to achieve a more comprehensive effect and I look forward to the Minister explaining that. I beg to move.
Lord Nash
My Lords, it may be helpful if I outline our government amendments in this group to enable noble Lords to have a debate if they wish to. In Grand Committee we had an extensive debate about the support for disabled children and young people and I know that this is an issue on which the noble Baroness, Lady Hughes, has reflected deeply, as have I since then. Many Peers expressed concern that disabled children and young people without SEN would miss out on the benefit of our reforms and, at the time of the debate, I introduced a government amendment to require schools to make arrangements for supporting children with medical needs. I also asked for help from noble Lords in understanding which groups of disabled children would not be supported by this Bill, the government amendment in respect of children with medical needs, the provisions of the Equality Act 2010 and Part 3 of the National Health Service Act 2006.
Following the debate, the Every Disabled Child Matters campaign sent some very helpful advice to the department in which it said:
“The Government rightly made the point in the debate yesterday that disabled children and young people are already protected by a range of other legislation, such as the Equality Act 2010, the NHS Act 2006 and the Children Act 1989.
We would like to stress that our concern is not about the rights of individual children and young people who may have a disability but no SEN. We completely accept that on an individual level they are protected under the Equality Act 2010 and other legislation. Our concern is about disabled children and young people as a group not being included in the joint commissioning arrangements, review functions, and local offer duty”.
It went on to suggest which clauses in the Bill might be amended to achieve this—Clauses 22, 24, 25, 26, 27, 30 and 32—and drafted a single amendment to deliver this. I am grateful to the noble Baronesses, Lady Hughes of Stretford and Lady Jones of Whitchurch, for their amendment, which is largely based on the Every Disabled Child Matters amendment.
We agree with Every Disabled Child Matters that the clauses identified should be amended. However, our view is that, by relating the provision for disabled children and the young people to special educational provision, a single amendment would not deliver the outcome that we all want, and that we need to amend each clause.
Clause 22 would be amended to require local authorities to exercise their functions with a view to identifying both the children and young people with SEN and disabled children and young people. Clause 24 would be extended to require health bodies to inform the child’s parents and their local authority where they are of the opinion that a child under compulsory school age has, or probably has, a disability. Clause 25 would now require local authorities to exercise their functions with a view to ensuring the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people, where they think that this would promote their well-being, including in relation to their participation in education, training and recreation. In Clause 26, the duties on local authorities and their partner commissioning bodies to make joint arrangements for the commissioning of education, health and care provision for children and young people with SEN would be amended to include disabled children and young people.
Clause 27, which currently requires local authorities to keep under review the special educational provision and social care provision for those with SEN, would be extended to cover provision for disabled children and young people. They will broaden it to cover all education and training provision, not just special educational provision, for children and young people who have SEN or are disabled.
The amendments also require local authorities to consult disabled children and young people and their parents when carrying out that duty. The provisions in the local offer would include disabled children and young people, both in relation to the information to be published and in developing and reviewing the local offer and publishing comments. In Clause 32, the requirement on local authorities to arrange for young people with SEN and parents of children with SEN to receive advice and information on SEN would be extended to include provision for disabled young people and the parents of disabled children to be provided with information about matters related to disability. I have also tabled an amendment, which we shall come to later, to extend the requirement to cover children themselves as well as their parents. Clause 73 would make it clear that the definition of disability applied to the provisions covered by these government amendments is that in the Equality Act 2010.
Noble Lords will also be aware from commitments that I made in Committee that we are looking at ways of strengthening links to the Equality Act duties, including those to make reasonable adjustments in the SEN code of practice. The amendments that I am speaking to today will sharpen the focus on the Equality Act duties considerably. Since the code of practice is statutory, the guidance that it provides cannot be ignored. I will respond to the debate in the normal way in due course but I hope that noble Lords are reassured by these amendments.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his explanation and I beg leave to withdraw the amendment.
Baroness Jones of Whitchurch (Lab)
My Lords, I support Amendment 18C and very much echo the arguments put forward by my noble friend Lady Wilkins and other noble Lords in this short debate.
Clause 22 already sets out that it is a requirement on local authorities to identify all children in their area with SEN. The Government obviously intend this data gathering to take place and this work to be done; otherwise they would not have put this in the Bill. It therefore needs to be collected and collated in an organised and effective way. It cannot be argued that it is an extra administrative burden when the basic requirement for the information to be gathered is already in the Bill. Noble Lords have raised genuine concerns about the quality of data in the past and the challenge of improving that quality in the future. I would also like to ask the Minister how the Government, if they think that it is important for the information to be collected, intend to make sure that the quality is delivered so that a proper planning process can take place. Obviously, it is necessary to have this information as a precursor to planning service delivery for all those people with SEN in local authorities.
The amendment is partially about transparency. It is about making sure that the data are not only collected but shared in an appropriate way so that they help both planners and service users to have a more informed input into the local offer and help devise better services in the future. The data might also have the advantage of providing isolated families with the knowledge of how many other families, children and young people in their area share a similar type of SEN or disability, which may help to bring people together.
The amendment is very much in the spirit and intent of the local offer, which is designed to help parents, children and young people shape services for the future. That is part of an ongoing debate that we have been having. The data collection and the quality of that data are crucial to help make this happen. Therefore, I hope that the Minister will see the wisdom in the amendment and will be able to support it.
Lord Nash
My Lords, I would like to thank the noble Baroness, Lady Wilkins, for raising this important issue and noble Lords who have spoken on this matter. I accept noble Lords’ concerns on this. I understand that the noble Baroness’s purpose behind tabling the amendment is to put, as the noble Baroness, Lady Howarth, has said, local authorities and schools in a better position to make good commissioning decisions. Good commissioning is clearly an important underpinning to the reforms that we are making and the Bill already provides for joint commissioning arrangements across education, health and care for the provision that is reasonably required for local children and young people with SEN. That commissioning will be informed by the local joint strategic needs assessment and the data that are already available on these children and young people.
I accept absolutely that good data need to be available to inform commissioning, but I do not think that the local offer is the right place to publish that data. The purpose of the local offer is to set out what provision children, young people and families can expect in their local areas and it is to be used as a vehicle for discussion about the development of local services. It is not designed to publish information on the numbers of children and young people in the area with different types of SEN. It would not be appropriate to clutter up the local offer with such data. We accept that that information will be material to discussions about the development of provision in the local area, but that information is available elsewhere.
The department already collects data from schools and local authorities on the number of children with special educational needs and publishes this annually on the department’s website. This includes data about the number of children by type of special educational need and we will be expanding this information. At present, we publish data by type of need for children at school action plus and with SEN statements. However, as we move to the new system for school-based SEN support, we will also publish data by type of need for children who are currently at school action.
For disabled children, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of, and Schedule 2 to, the Children Act 1989. The draft, new SEN code of practice reminds local authorities of that duty. The department also collects data on children in the early years through the early years census. For post-16, the Education Funding Agency and the Skills Funding Agency also collect data on young people in the further education sector, through the individualised learner record on a range of types of need. Requiring local authorities to publish this data in the local offer would just replicate data that is already available.
So far as bringing together these different data sets into one place is concerned, as I said, I do not believe that the local offer is the appropriate place to do this, and I do not think it is right that central government should impose on local authorities something that they should already be doing. Some local authorities may well be poor at carrying out their duties in this regard, but that is not a legislative issue: it is a matter of practice. We have made it clear in the code that local authorities have this duty.
The noble Lord, Lord Low, talked about incomplete data. It is true that SEN data from the early years census, although available on request, is not routinely published publicly, but we will make sure in future that it will be and will be linked up to the main SEN statistical publication. I assure noble Lords that the department is thinking about what the new arrangements in the Bill imply for data collection and we are seeing where there are possibilities for greater clarity and the joining up of data sets. The post-16 data that are collected by the department, the Education Funding Agency and the Skills Funding Agency are publicly available on a number of websites, and we are looking at ways to bring these together for greater clarity.
Indeed, more generally, we are looking to see how data can be brought together to reflect the new nought to 25 arrangements under the Bill. We will also consider whether there should be a collection of disability data from schools. I would be happy to discuss this further with the noble Baroness and any other noble Lords who are interested. On that basis, I ask the noble Baroness to withdraw her amendment.
Baroness Wilkins
My Lords, I thank the Minister for that reply. Unfortunately, agreement has not continued from previous amendments. I thank all other noble Lords who contributed to this debate, but I find the Minister's reply extremely disappointing. He said that the local offer was not the place to put this information and that it would be cluttered up by it. But he then went on to enumerate various forms of collection of the data which fail to recognise that it is the quality of the data that are collected that is so criticised at the moment: it is failing to provide its purpose. It seems key that, without reliable data, local authorities will not be able to commission the services that are needed.
I will read what the Minister has said in Hansard and consider this further. As I said, I am disappointed in his reply, but, for the moment, I beg leave to withdraw the amendment.
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