Children and Families Bill Debate
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Lord Nash
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Children and Families Bill
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Baroness Howarth of Breckland (CB)
My Lords, I support the noble Baroness, Lady Sharp, in what she was saying. I was rather taken by the government amendment because of its involvement of parents, children and young people themselves, but I could not see the follow-through. What we are looking for is an interrelationship between the legislation, the code and how it is applied and then how that is reported back, so that you have a virtuous circle and you can measure against what you are attempting to do.
In order to do that, you have to have absolute transparency. That is why I am also concerned about the phrase,
“it expects to be available”.
Unless families know with absolute clarity what is available and have some idea of what the local authority might be planning to make available—that might be what the “expects” is trying to achieve—how can they be engaged in a debate with the local authority in some sort of forum to move things forward in an innovative way? Being involved in two charities that work nationally, I know how very different the provision is across the country, but I still have grave anxieties about setting minimum standards, having also worked in a local authority that was strapped for cash in the 1970s, where we looked for any area of legislation where we could move back and save money. At this time, as I have said several times in this debate, we have to be absolutely open with families about what is and is not available. It is only if they are absolutely clear about that within the constraints of the finances that are available that they will be able to campaign, if you like, for an alternative that would better meet their needs. I encourage the Minister to look again at the phrase, “expects to be available”.
I find it far more difficult to know how I would vote on any of the other amendments, recognising the sheer complexity of the discussion that we have been having. I happen to have more faith in local authorities, and believe that if they have the opportunity and the resource they will do their best for the people that they want to serve.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, this is our first opportunity after the Recess to consider Part 3 of the Children and Families Bill. This is a good time to reflect on how far we have come in taking forward our shared ambition of a new framework for supporting children, young people and their parents—one that raises aspirations, improves outcomes and enables young people to prepare successfully for adult life.
On 17 December, the House passed a number of government amendments responding to important issues raised by noble Lords in Committee. These amendments will include disabled children and young people without SEN in key provisions of the Bill and ensure that local authorities exercise their functions with a view to securing that they identify both children and young people with SEN and disabled children and young people, and that health bodies inform the child’s parents and local authority where they are of the opinion that a child under compulsory school age has or probably has a disability. Local authorities will 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 this would promote their well-being, including in relation to their participation in education, training and recreation. Local authorities and their partner commissioning bodies making joint arrangements for the commissioning of education, health and care provision for children and young people with SEN will be amended to include disabled children and young people. Local authorities will keep under review all the education and training provision and social care provision for disabled children and young people and consult disabled children and young people and their parents when doing so. Local authorities will arrange 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—and local authorities will include disabled children and young people both in relation to the information to be published and in developing and reviewing the local offer and in publishing comments.
The definition of disability applied in relation to these government amendments is that in the Equality Act 2010. Since I have already given an undertaking to strengthen the links to the Equality Act duties in the SEN code of practice, they will sharpen the focus on those duties considerably. The code of practice is, of course, statutory and the guidance it provides cannot be ignored.
These changes followed a government amendment in Committee requiring schools to make arrangements for supporting children with medical needs, including children with long-term medical conditions, about whom noble Lords had particular concerns. These changes have improved the Bill and will improve provision for children, young people and families.
We have now had an interesting debate on accountability for services and the local offer. It is an important issue, and one on which a range of views was expressed in Grand Committee. I would like to thank the noble Lord, Lord Low, and the noble Baronesses, Lady Howe, Lady Hughes, and Lady Jones, for their contribution today and for bringing their experience into this debate.
I think it is important at the outset to reflect for a moment on the purposes of the local offer and on how the provisions in the Bill, the draft regulations and the draft SEN code of practice have been developed. The Lamb inquiry highlighted the need for parents to have clearer information about the support available and how decisions are made. Brian Lamb was clear that greater clarity and transparency reduces conflict and builds trust. That is why the SEN Green Paper proposed the local offer.
Since the Green Paper, we have worked with our local pathfinders and others to develop the statutory framework for the local offer. From this work, we know that local services will be much more responsive to local needs if local offers are developed with children and young people and their parents. This is precisely what we provide for in the Bill.
I appreciate the concerns that have prompted Amendment 25E, which was tabled by the noble Baroness, Lady Howe, on the review of education and care provision. I understand why she is seeking the publication of an action plan if the education and social care is deemed insufficient. I also understand her wish to ensure that local authorities address any shortcomings, but I think that Clause 30 rather than Clause 27 is the right place to address these issues, and I will say more about this shortly.
The provisions in the Bill will ensure that children and young people with SEN and disabled children and young people and the parents of children with SEN and disabilities are involved in improving provision where it is insufficient. Local authorities must consult and involve them when reviewing local provision, but I believe that the detailed mechanics of how local authorities work with local people and those providing services for them to improve provision are best left to the local authority—I take the point the noble Baroness, Lady Howarth, has just made—if we are really to secure services that are responsive to local needs.
As many noble Lords have mentioned, there is a government amendment in this group—Amendment 33C —which I would now like to explain. Local authorities must publish comments from children and young people with SEN and disabilities and parents of children with SEN and disabilities about the local offer, including comments about the quality of the provision available and about any provision that is not available. We make it clear in the draft SEN code that when local authorities publish their response to comments they should include the action local authorities propose to take. However, in view of the concerns raised in Committee I have tabled Amendment 33C to make this explicit in the Bill.
This amendment will add a requirement to Clause 30(6) to make it absolutely clear that local authorities cannot simply publish their response to comments but then ignore them. They must say what action they intend to take. This will provide even greater transparency and help to improve local accountability. As with every other part of the development of the local offer, children, young people and parents will be involved in discussions with local authorities about the action they propose to take.
“( ) children and young people in its area with special educational needs, and the parents of children in its area with special educational needs;( ) children and young people in its area who have a disability, and the parents of children in its area who have a disability;”
“( ) a person in charge of relevant youth accommodation—(i) in which there are detained persons aged 18 or under for whom the authority was responsible immediately before the beginning of their detention, or(ii) that the authority thinks is accommodation in which such persons are likely to be detained;”
Lord Nash
My Lords, I rise to move the group of government amendments starting with Amendment 27A. These amendments will strengthen provision for children and young people with special educational needs in the youth justice system. Provision for young offenders has been the subject of considerable debate during the passage of this Bill, both in this Chamber and in the other place. This is an issue that we must get right. Evidence suggests that nearly one in five young people in custody has a statement of special educational needs. I offer my sincere gratitude to the noble Lords who have pursued this matter, particularly the noble Lord, Lord Ramsbotham. I have benefited considerably from his expertise in this area, and I pay tribute to his tireless efforts to secure better outcomes for those with SEN in custody.
I also offer my thanks and appreciation to the noble Baroness, Lady Howarth, and my noble friends Lord Addington, Lord Storey and Lady Walmsley, all of whom have contributed valuably to this discussion. I have considered all representations on this issue very carefully, and I am now pleased to bring forward a series of amendments that will considerably strengthen protections for this vulnerable group.
The noble Lord, Lord Ramsbotham, has tabled Amendment 50, which I support, removing Clause 70 of the Bill, which currently disapplies Part 3 of the Bill to children and young people in detention. The Government’s amendments would replace Clause 70 with new provisions after Clause 65, which would enable education, health and care assessments to take place for a detained child or young person; require home local authorities and health service commissioners to use their best endeavours to arrange the special education and health provision specified in a plan during the period in custody; and require relevant youth custodial institutions—that is, young offender institutions, secure children’s homes and secure training centres—to co-operate with the home local authority when arranging support for young offenders with SEN. These changes will ensure that needs are identified and assessed at the earliest opportunity, that the best possible support is provided to young people in custody, and that there is a single point of accountability before, during and after their period in detention.
The first clause affected by this group of amendments is Clause 28, hence our consideration at this time. However, in the interests of clarity, I will firstly explain the substantive amendments that we would introduce after Clause 65. The point at which a child or young person is first detained is a crucial opportunity to identify special educational needs. Amendments 47B and 47C would allow the custodial institution, and the detained person or their parent, to request a full, statutory education, health and care assessment from the detained person’s home local authority. Under our amendments, a home local authority must also determine whether to conduct an assessment when a detained child or young person has been brought to its attention by someone else—for example, a professional working with the child or young person. This will support early identification of needs; it will also make best use of the time that a young person is in detention so that an assessment can get under way and support be put in place immediately upon release.
Amendment 47D would extend the right to appeal to a detained young person or a detained child’s parent when they were unhappy with a local authority decision not to carry out an assessment or a decision not to make provision following an assessment.
Amendment 47E would require a child or young person’s home local authority to use its best endeavours to arrange the special educational provision specified in the EHC plan while they are in custody. This is a strong and robust statutory duty, requiring the home local authority to do everything in its power to arrange the specified provision, or provision corresponding as closely as possible to it, or other appropriate provision while the individual is detained. Placing this duty on the home local authority will provide continuity and stability that is not present under existing arrangements. It will significantly improve accountability and ensure that, wherever a child or young person is detained, there remains a single point of accountability and a single contact for their families. It also creates a strong incentive for the home authority to arrange the best possible provision, as it will remain responsible for that child or young person throughout their period of detention and afterwards when they return home.
Amendment 47E would also create a parallel requirement for a detained child or young person’s health services commissioner to use its best endeavours to arrange the healthcare provision specified in an EHC plan. Where a child or young person is detained in custody, the relevant health services commissioner would be NHS England. This is a new duty, which would require the health service commissioner to do everything in its power to arrange the specified provision, or provision corresponding as closely as possible to it, or other appropriate provision while the individual is detained.
Amendment 27A to Clause 28 and Amendments 33HA to 33HK to Clause 31 would require relevant secure institutions—young offender institutions, secure children’s homes and secure training centres—to co-operate with the local authority. These amendments will require governors of young offender institutions or those in charge of other establishments in the youth secure estate to work with local authorities to deliver the best possible support for those in custody. These new statutory requirements will give local authorities the backing they need to ensure that custodial institutions play their part. This also reflects the Government’s ambition to place education at the heart of youth detention, set out in the Transforming Youth Custody consultation paper.
In addition to these substantive changes, we have also made a series of technical supporting amendments to Clauses 36 and 48, and to Schedule 3. These supporting amendments also include adding a new clause, “Application of Part to detained persons”, which includes a regulatory power to apply further provisions to detained people. These regulations, along with a revised section within the code of practice, will allow us to set out more detail about how we expect these new duties to operate in practice, and the relative roles and responsibilities of each party.
Amendments to Schedule 3 make consequential amendments to the Education Act 1996 to reflect the fact that these new provisions would replace existing provisions in England, but not in Wales. The Government, in consultation with the Welsh Ministers, would have the power to amend provisions by regulation. This package of amendments represents a much more robust statutory framework for detained young people, which responds to the valuable contributions and issues raised by noble Lords, for which, as I say, I am extremely grateful. I beg to move.
Lord Ramsbotham (CB)
My Lords, I begin by thanking the Minister for his courteous words in his introduction. I feel that we are almost there on children in detention, but not quite. I fear that some work remains to be done to ensure that the intent outlined in the Government’s amendments is brought to pass. I am very grateful for the many meetings and discussions which have resulted in the amendments that the Minister outlined, which make my Clause 70 stand part debate irrelevant. However, both as a former soldier and Chief Inspector of Prisons, I admit to remaining unease, fuelled in particular by proposed new subsection (4) of Amendment 47E, which requires a home local authority to,
“use its best endeavours to arrange appropriate special educational provision for the detained person”.
Those words seem far too weak to ensure that anything actually happens.
I refer to the intent behind my Amendment 49, which—despite much of the content having been, like my stand part debate, made irrelevant by the government amendments—remains very much extant in intent. To me, “best endeavours” is too weak because it leaves too much open for too many individuals to interpret to allow consistent provision of what is intended. Therefore, I plead guilty to falling back on a concept that underpins consistent provision of what is intended in the Army, namely duty. In the long-term interests of young people with special educational needs, quite apart from the best interests of the country as a whole, I can see no reason why, rather than leave such provision to chance, a duty should not be put both on a local authority to arrange that provision be made for an EHC plan to be continued in custody, and on places of detention to deliver what is required in such a plan. That is what it appears that the Government intend, because proposed new subsection (1) of Amendment 47C states that a home local authority must secure that an EHC plan is prepared for a detained person. Unfortunately, though, as I have bemoaned on many previous occasions, such an intent is unachievable because the Ministry of Justice cannot guarantee to deliver what is arranged, prepared or required.
Unlike any other operational organisation such as a school, hospital or business, the Prison Service makes no one responsible or accountable for the treatment and conditions of any group of people in custody such as women, children or young people. Not only is the governor of any place of detention not bound to continue any practice that was in place when he or she took over, but alone determines what is or is not appropriate and will or will not be provided. Having campaigned unsuccessfully for 19 years to have this changed, and having seen far too many promising initiatives and developments dropped—wholly wrongly and unnecessarily—I suggest that if the Government mean what appears to be the intent of this group of amendments they must do something about the wording in proposed new subsection (1) of Amendment 47C and proposed new subsection (4) of Amendment 47E because, as set down, they are incapable of securing anything. I put it to the Minister that neither the Government nor any local authority should feel comfortable that the Ministry of Justice at present lacks the means of ensuring EHC plan provision in places of detention. Therefore, not least to ensure the credibility of government legislation, he should be seeking other means of securing it.
I turn to the code of practice, which has been mentioned many times during the passage of the Bill and is currently out for consultation. At present, certainly to a lay man such as me, the code appears to be a vast document, full of “musts”, without any specification about who is to deliver them or oversee their provision. The Minister has often emphasised the store the Government set by the code, and I therefore ask him whether he sees it as the vehicle by which the problem I have outlined is to be remedied. If he does, I ask him whether he will reconsider the wording in the government amendments and tell the House, probably at Third Reading, exactly how the code of practice will be worded so that provision of EHC plans is secure. I understand that NHS England is responsible for contracting provision of the healthcare part of any plan from an appropriate local provider, but I would be grateful for information on how exactly that is to be secured. I use the word “security” deliberately because local authorities, which are responsible for the continuation of any provision after the release of anyone from detention, will have a vested interest in the quantity and quality of the provision of what they are told that they must secure, but over whose provision they have virtually no control. In other words, as I said at the start of my contribution, we are nearly there but I suggest that we need one last shove before we can feel certain that provision of what the Government want is secure.
Lord Addington (LD)
My Lords, Amendment 48A is in my name. The noble Baroness, Lady Hughes, made the point, also made in the amendment, that hidden disabilities—my interest in dyslexia is very well known in the House—are, by definition, difficult to spot. We also know that they are grossly overrepresented in all sections of the prison and youth justice systems. My amendment suggests that there should be some duty on those institutions to try to identify people in them with such disabilities. Providing education, training and, indeed, even socialisation for people who have been denied the ability, for instance, to access the written word and education is going to be incredibly difficult. They do not respond well and it is something that they cannot do. For example, you cannot even access social security when you leave prison. That might be going slightly off the point, but it is important that the Government give us an idea about the pressure that will be placed on these institutions to try to identify those who have these problems. Most of the work that has been done in this area shows that there is a much better chance of them not reoffending if that is done.
Lord Nash
My Lords, I am delighted that the noble Lord, Lord Ramsbotham, is satisfied that we are nearly there. However, as always, we do not quite seem to be there. The best endeavours clause that we are proposing for home local authorities would place incentives, we believe, in the right place—it is in the home local authority’s best interests to arrange quality provision, as it will remain accountable for the young person while they are detained and when they return from detention.
I remember many late nights in lawyers’ meetings when I have been strongly advised not to give a “best endeavours” undertaking, as it is a very strong under- taking, but to try to get away with a “reasonable endeavours” one. My legal training teaches me to believe that a best-endeavours undertaking is actually a very strong one.
The amendments specifically require the local authority to secure the special educational provision that is specified in the plan. If that is not possible, best endeavours would require home local authorities to do everything they could to arrange the special education provision specified in a young offender’s EHC plan while they are in custody—or provision that corresponds as closely as possible to it or to other appropriate provision. Some provision specified in EHC plans cannot be arranged by local authorities while a person is in custody: most notably and obviously, any requirement for a young person to attend a particular school or college, which of course they cannot attend while detained. It is for this reason that it is necessary to use the term “best endeavours”. It is a technical term that avoids placing a legal duty on local authorities which is impractical or impossible for them to deliver.
Amendment 47E does not, we believe, provide a get-out enabling home local authorities to have a free choice about which services they arrange for detained children and young people. They cannot simply decide, without robust justification, that some provision is no longer appropriate, just to avoid arranging it. Under the best endeavours duty, their starting point must be to arrange the provision specified in the EHC plan. They can arrange alternative or other appropriate provision only once they have done everything they can to arrange the provision specified in the plan.
Local authorities and the health services commissioner will be accountable to parents and young people in respect of this best endeavours duty. Parents and young people will be able to complain to their home local authority or to the health body—with ultimate recourse to judicial review. Our strengthened best endeavours duties will be accompanied by a robust code of practice.
The existing contracts for education services in public sector young offender institutions are due to end later this year. We will ensure that the arrangements made with the new education providers support local authorities as they seek to fulfil their best endeavours duty to ensure that provision in EHC plans continues to be delivered while a child or young person is in custody.
The current draft code of practice was of course written before we tabled these amendments. We will now rewrite the code to reflect them and the intent that I have today set out. I am very happy to discuss the wording of the code with the noble Lord, Lord Ramsbotham, outside the Chamber. The code is of course subject to affirmative procedure. I hope that the noble Lord will find that helpful. I look forward to those discussions with him so that it will not be necessary for us to come back to this at Third Reading.
Baroness Hughes of Stretford
I am not clear: could any requirements in relation to young offender or custodial institutions included in the code of practice actually be applied to those institutions? Could they come within the purview of the code of practice legally?
Lord Nash
I have no idea, but I hope that by the time I have finished dealing with the amendment of my noble friend Lord Addington, I might have an answer.
My noble friend Lord Addington tabled Amendment 48A to require the host local authority to make arrangements to ensure that the workforce has the skills and knowledge to identify special educational needs and put in place effective interventions. It is already a requirement of those we commission to deliver education in the youth secure estate to ensure that the needs of those young people with SEN are properly identified and addressed. Education providers in the youth secure estate are contractually required to have an appropriately trained and qualified workforce to conduct assessments. They will also have a SENCO who is responsible for managing the effective delivery of specialist SEN services.
Education providers are required to conduct an educational assessment of anyone entering custody unless this information is already known. That includes both assessments of levels of literacy, language and numeracy, and the screening of anyone who shows signs of a specific learning difficulty or special educational need. They also use a variety of tools for this purpose, including the hidden disabilities questionnaire developed by Dyslexia Action which screens for a range of hidden disabilities. Provision is subject to regular inspection by Ofsted, where appropriate working with HM Inspectorate of Prisons.
The current contract between the Education Funding Agency and education providers for young offender institutions requires all secure settings to have: procedures for ensuring that the identification and support of specific learning difficulties in young offenders is inspected, evaluated, monitored, reviewed and developed; and an appropriately trained workforce that will identify and support a young offender’s individual learning needs and deliver relevant and individually tailored programmes of learning support to those young offenders whose profiles provide evidence of specific learning difficulties. With the amendments I have proposed today, a young person identified as being at risk as a result of the screening process could be referred for a full EHC assessment. In view of this, and the existing requirements on providers and the amendments I have outlined, I hope that my noble friend will not press his amendment.
I am confident that the government amendments in this group will result in vastly improved provision for children and young people with SEN in custody, and that they address the views and concerns of noble Lords. We have made significant steps on this. As I said, I would be very happy to continue discussing this further—including, if I may, the point made by the noble Baroness, Lady Hughes.
Lord Ramsbotham
I thank the Minister for the way in which, as other noble Lords said, he has listened during all our discussions. We have come a long way, but I am still nervous that we have people under the age of 18 in young offender institutions, but health and care plans continue from nought to 25; and we have the problem of the over-18s who will be dispersed elsewhere and who will now, under plans from the Ministry of Justice, no longer go to young offender institutions, but may be sent to adult institutions all over the country.
My nervousness is not so much about the home local authority drawing up the plan but about the actual implications. A great gulf seems still to exist between the intent of the Department for Education, which has been so clearly set out by the Minister, and the ability of the Ministry of Justice to deliver what is required and laid down in legislation. I hope that when we discuss the application of the code of practice, the Ministry of Justice will be present and will be required to set out exactly how it will deliver what is in the code.
(i) ”
(i) ”
(i) ”
Lord Nash
My Lords, there has been broad support across this House for our ambition to create a system that raises aspirations and helps young people with SEN to realise their full potential, achieve positive outcomes and prepare for adult life. There has also been broad support for the provisions in the Bill that extend additional rights and support to 16 to 25 year- olds in further education and training.
The Bill enshrines in law the principle that local authorities must take account of young people’s views, wishes and feelings, and involve them in decision-making. It gives young people aged 16 to 25 the right to request an assessment of their needs. It ensures that post-16 institutions will be consulted by the local authority when it reviews its provision, and are included in the local offer. It places FE colleges, sixth form colleges, 16 to 19 academies and free schools under a new duty to use their “best endeavours” for all young people with SEN, and ensures that they have regard to the new nought to 25 code of practice. It gives young people the right to request that these institutions—and approved independent specialist providers—be named in their EHC plan and then admit them, unless exemptions apply. It ensures that young people who become NEET do not lose their EHC support, and are helped back into education. Also, for the first time, it gives 16 to 25 year-olds in further education and training the right to appeal to an SEN first-tier tribunal if they are unhappy with their arrangements. There is a great deal here that we should be proud of and I am grateful for the support that noble Lords have shown on all sides of the House.
However, I also know that there has been genuine concern about the provisions in the Bill that require local authorities to “have regard to” the age of young people aged 19 to 25 when determining their support. We had a particularly helpful round-table discussion on this when a number of noble Lords, including my noble friends Lady Sharp and Lady Cumberlege and the noble Baronesses, Lady Hughes and Lady Howarth, made a number of really helpful comments in this regard. Noble Lords have particularly expressed their fears that the Bill as currently drafted would provide local authorities with an excuse to deny or cease support to a young person based solely on their age. This is not, and has never been, our intention. Young people with SEN aged 19 to 25 should be supported to remain in formal education where this will enable them to complete or consolidate their learning, achieve their outcomes and make a successful transition to adulthood. In achieving this important aim we must not inadvertently create an entitlement or expectation that all young people with SEN remain in education until age 25. That would not be in the interests of many young people, who may need just one or two years of additional education to progress into adult life and work.
I have listened carefully to the concerns of noble Lords, both during debate in Grand Committee and subsequently. In particular, I have listened to concerns that the focus on age is unhelpful or unclear in its intention and could lead to support being denied on the basis of a young person’s age alone. I have therefore tabled government amendments to clarify our intention in the Bill. I am pleased to be presenting these amendments with the support of my noble friends Lady Sharp and Lady Cumberlege, who spoke incisively on this issue in Grand Committee.
Baroness Hughes of Stretford
My Lords, I rise briefly to make two points. First, I welcome the amendments. The wording of the government amendments is very sensible and I am pleased that the Minister has listened. The critical moment was when the Government published their policy position on this issue when it was crystal clear to everyone that the position as outlined was not reflected by the words “having regard to age” in the Bill. That was a kind of “light bulb” moment, and I am pleased that they have recognised that. The wording in so far as it goes is fine, and I am very pleased to support it.
Secondly, I commend the points made by the noble Baroness, Lady Cumberlege, repeated by the noble Baronesses, Lady Sharp and Lady Howarth. It is important that the Government pay attention to the way in which the code of practice reflects this change and make sure that the wording in the code is expansive rather than restrictive on local authorities and other service providers, so that they can look in the round at these young people as they approach and go beyond 18, in terms of their various needs, and not limit it only to a formal definition of education and training. I look forward to the Minister’s remarks on that, but I very much welcome the changes.
Lord Nash
My Lords, I thank again my noble friends Lady Sharp and Lady Cumberlege, as well as the noble Baroness, Lady Howarth, for their insights during Grand Committee. I welcome the opportunity that the noble Lord, Lord Pearson, has given us to clarify how we have secured continuity of adult care for young people with EHC plans. I also thank the noble Baroness, Lady Jones, for her kind remarks.
On the point made by my noble friend Lady Cumberlege, yes, we are making it clear that the outcomes that we are looking for are wider. The outcomes specified in the plan do not have to be formal or accredited; we are happy to make sure that that is clear in the code. On a point made more generally by my noble friend Lady Sharp, the draft code predates the amendments, and we will make sure that the code fully reflects the amendments, including making it clear that outcomes rather than age must be considered.
In response to the important issues raised by the noble Lord, Lord Pearson, I am delighted to state categorically that no young person who turns 18 and is in receipt of children’s social care will face a gap in provision while consideration is made about their adult care. This applies if they move to a new local authority or if their EHC plan comes to an end at that point because they are leaving education. Clause 47 provides for regulations that ensure continuity of support and provision when a child or young person with an EHC plan moves to a different local authority. For those turning 18, Clause 50 enables local authorities to extend children’s services beyond the age of 18 for those with an EHC plan where that is the best option. Provisions in the Care Bill ensure that there is no gap in care services when a young person moves to a different area, turns 18 or their EHC plan comes to an end. Those 18 year-olds who have eligible needs for care and support will in future receive a statutory care and support plan. Both we and the Department of Health are clear that this will form the care part of their EHC plan when one is in place and would continue in its own right as a statutory plan once their EHC plan is no longer maintained.
Furthermore, Clauses 37 and 38 of the Care Bill ensure that support is continued when someone with a statutory care and support plan moves to a new local authority. When a young person turns 18, Clauses 59 to 67 of the Care Bill ensure that assessments for adult care are carried out in good time so that support can be put in place promptly. In particular, Clause 67 requires local authorities to continue to provide existing support under Section 17 of the Children Act 1989 or under the Chronically Sick and Disabled Persons Act 1970 until adult care begins, or a decision is made that an adult care and support plan is not required. Young people who have made a successful transition to adulthood and are now in employment, higher education or adult learning, will continue to receive support in those settings that will 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.
As regards the point made by the noble Lord, Lord Pearson, about the reading of the words “for some other reason”, the Department of Health is clear that this phrase does not in any way change a local authority’s duty to meet an adult’s eligible needs for care and support under Clause 81 of the Care Bill. “Other reasons” could refer to, for example, a person changing their place of residence to a different local authority area before the assessment has been completed. It does not provide carte blanche for local authorities to refuse to provide services for spurious reasons. I hope that is helpful. I believe that the amendments I am moving today represent a genuinely positive change to the Bill, which, along with reforms in the Care Bill, further strengthen arrangements for young people making the transition to adulthood. I hope that noble Lords will support them.
Lord Nash
My Lords, I thank the noble Lords, Lord Rix and Lord Low, the noble Baroness, Lady Hughes, and my noble friend Lady Sharp for raising this important matter. I also welcomed the high-quality debate on social care in Grand Committee. I understand fully all the concerns expressed by noble Lords and I say again that it remains our clear expectation that any social care services specified in an EHC plan will be provided by local authorities. As I shall explain, I hope that at Third Reading we will be able to bring forward amendments to address some of those concerns.
However, it is vital that local authorities are able to decide how to prioritise expenditure on social care based on the needs of children and young people, whether or not they have an EHC plan. As a targeted service for vulnerable children and young people, social care is different from education and health services. Education and health services are universal and it makes sense that there should be equivalent duties to provide the services in EHC plans in order to prioritise, over others, children and young people with greater needs.
Social care is a targeted service and is available only for vulnerable children and young people, so there is a greater risk that an individually owed duty for those with plans could adversely affect other vulnerable groups, including children at risk of neglect. We do not think that that is the right thing to do. In answer to a point made by the noble Baroness, Lady Hughes, and the right reverend Prelate the Bishop of Ripon and Leeds, I am afraid that it is really a question of resources. However, I am delighted to hear the noble Baroness, Lady Hughes, say that this is one of two remaining pieces in the jigsaw. I am dying to hear what the second one is and I am sure that I will not have to wait long. However, I hope that I shall be able to be helpful in relation to this point.
I do not propose to rehearse further all the important arguments that were made in Grand Committee except to recognise that a number of points have been raised by noble Lords about the Chronically Sick and Disabled Persons Act 1970. It is important to re-emphasise that, regardless of whether social care provision is included in the EHC plan, the duties in existing legislation will continue to apply, as a number of noble Lords have said. Therefore, the requirement for EHC plans to include social care provision “reasonably required” by the learning difficulty or disability which gives rise to the SEN will not introduce a new test for which social care services are to be provided. The duty of local authorities to provide services to disabled children where it is decided that they are necessary under the CSDPA will continue to apply.
I recognise that a number of noble Lords, along with representatives of Every Disabled Child Matters and the Special Educational Consortium, are attracted to including the CSDPA in the Bill as a means of, first, providing assurance that assessed social care needs for disabled children will be met under the existing duty in Section 2 of the CSDPA and, secondly, ensuring that the EHC plan includes all the relevant social care services needed by disabled children.
The Minister for Children and Families and I have had helpful meetings with representatives of the Special Educational Consortium and noble Lords where we have discussed this proposal, and officials at the Department for Education are continuing those discussions. There are of course a number of important issues to consider and we need to avoid unintended consequences. For example, we need to ensure that including the 1970 Act in the Bill will not cause confusion if other relevant legislation is not also listed. We must also ensure that we do all we can in the SEN code of practice to explain the existing legislation clearly to parents and professionals. However, I am hopeful of a positive outcome to these discussions and hope to bring forward an amendment at Third Reading to reflect this. In view of these ongoing discussions and my undertaking, I urge the noble Lords, Lord Rix and Lord Low, the noble Baroness, Lady Hughes, and my noble friend Lady Sharp not to press their amendment.
Lord Rix
My Lords, I thank every noble Lord who spoke in support of this amendment. Clearly there is greater support than the number of noble Lords present at the moment and I most grateful, too, to the Minister for his response. I can only take him at his word, which I am sure is totally unassailable, and trust that the amendment that he brings forward at Third Reading will, indeed, support all of us who have wished for Amendment 38 to be accepted. Obviously, he will bring forth something which is not quite Amendment 38, but I hope that it will satisfy all of us here concerned and ensure that social care is, in some form or another, in the Bill. With that assurance ringing in my ears, I beg leave to withdraw the amendment.
Baroness Howe of Idlicote (CB)
My Lords, rather like my noble friend who has just spoken, from listening to the arguments, I feel it is clear that something pretty sharp has to happen. I am assuming that one can have both the amendments. If we can, I am in favour of both of them.
Lord Nash
My Lords, I thank the noble Lords, Lord Rix and Lord Low, and the noble Baronesses, Lady Hughes, Lady Hollins and Lady Jones, for tabling the amendments, for their contributions and for bringing their experience to this debate.
Several noble Lords have been kind enough to discuss with me their questions and concerns about the complaints process for children and young people with SEN, including the noble Lords, Lord Rix and Lord Low, and my noble friend Lord Storey. I have been listening carefully to these points and have discussed them at length with my honourable friend the Minister for Children and Families.
Noble Lords have been right to press the Government hard to deliver an integrated complaints procedure to respond to the needs of a more integrated system. First, I reassure noble Lords that work is already in hand to improve the situation. The new code of practice will require that impartial information, advice and support is commissioned through joint arrangements and available through a single point of access with the capacity to handle initial phone, electronic, or face-to-face inquiries. It will also encourage clinical commissioning groups to ensure that relevant information is available at this single point of access, as well as including information on their local health offer on their website. A one-stop shop will be simpler and much more parent and young person-friendly than having to go to more than one place for advice on a range of issues, including how to complain.
Today, my honourable friend the Minister for Children and Families, who has vast direct personal experience in this area, announced a £30 million package to provide children and young people with SEN and disabilities and their parents with independent support to help them through the new SEN assessment and education, health and care planning process. This funding will be available between April 2014 and March 2016. The aim is to have around 1,800 trained independent supporters from the private, voluntary and community sectors in place by autumn 2014. That equates to about 12 individuals, on average, in each local authority area in England.
This will ensure that many families have access to informed advice and support at a time when the system is changing and new processes are bedding in. These independent supporters will be independent of the local authority, but they will need to work with local authorities and other statutory agencies to help families get the support they need. Where there is disagreement, independent supporters will make sure councils understand what families want, and help families to challenge decision-making. This will mean that children and young people with SEN get the help they really need across education, health and care. This is a major step forward.
On the health side, noble Lords will also be glad to hear that work is under way on how NHS complaints are handled, in the light of the Francis report and the review undertaken by the right honourable Ann Clwyd MP and Professor Tricia Hart into the NHS hospitals complaints system. The Government want to ensure that when things go wrong, the complaints system is clear, fair and open, and that at every level, the NHS scrutinises and learns from mistakes to improve care for patients.
The Parliamentary and Health Service Ombudsman, Healthwatch England and the Department of Health will work with the Patients Association, patients, regulators, commissioners and providers to develop universal expectations for the handling of complaints. These will be used across the NHS to drive improvements in patient satisfaction with complaint-handling. This will benefit children and young people with SEN, so we should be wary of establishing a new set of arrangements for this one group without allowing the wider suite of reforms on NHS complaints to establish itself.
Turning to why extending the remit of the tribunal is difficult, the issues here are extremely complicated. It is tempting to extend the tribunal’s remit across health and social care, but there are legitimate reasons why we cannot do so at this point. Local authorities’ duty to arrange provision that will meet the special educational needs of a child currently with a statement, or, in future, a child or young person with a plan, is absolute. The local authority has to arrange that provision no matter what the cost. This means that when the tribunal makes a decision that will increase the special educational provision for one child, that will have no effect on other children with statements because the local authority has the same absolute duty to arrange provision that meets their needs as well.
The position is different with health and social care. The authority is making decisions having regard to the health and social care needs of the whole population. We have already discussed the issues around social care in some detail. This means that, if the tribunal were to be given powers to make decisions in those areas, any decision the tribunal made to increase provision for one child or young person could mean that other children or young people with similar or even greater health or social care needs could be deprived of provision they require. It would therefore be wrong to give the tribunal the powers implied by the amendment.
The issues are significant. None the less, we should consider what more we should do now better to integrate complaints across services. This is a matter of concern to Ministers in both the Department of Health and the Department for Education. Building on our commitment to funding for key workers to help parents who need to navigate the system, we agree that there is more to be done to ensure that redress works well and feels joined up, where it needs to, and that we will need to keep that under review as the reforms are implemented.
We would therefore be grateful for the opportunity to discuss these issues further with noble Lords before Third Reading to ensure that we can confirm a strong package by that point. The things that we particularly would like to look at include: the role of mediation, including the scope to extend the arrangements in the Bill to cover health and social care as well as special education; notwithstanding the concerns I have set out, whether there could be a role for the tribunal in joining up redress across education, health and care; and what arrangements we should put in place to review how redress works once the new system is bedded in and in the light of wider reforms to complaints in the health service.
I assure noble Lords that that is something that we are taking seriously and about which we are in active discussions, which will continue, with the Department of Health. In view of what I have said, I urge noble Lords not to press their amendments.
Lord Rix
My Lords, this is like opening a Christmas stocking, is it not? You are never quite sure what is going to come out next. The idea that we will be given time to discuss this matter in more detail before Third Reading is a promise which has great merit. To a certain extent it answers the noble Lord, Lord Storey, on his problems, and the noble Baroness, Lady Hughes, who was asking for an extension of up to a year before any final decision were taken. If we can make a decision before Third Reading, it will be quite incredible. I would obviously welcome that, because my amendment is asking for immediate effect, but I am very happy to attend any meeting which makes this possible. Even at Third Reading, if some sort of promise is made to continue the review along the lines laid down by the noble Baroness, Lady Hughes, again, I am sure that I would support that. Without knowing quite what the noble Baroness is going to say, I beg leave to withdraw my amendment.
Baroness Jones of Whitchurch
My Lords, I support these amendments in the name of the noble Lord, Lord Addington. I echo the comments that have been made about his diligence and determination in pursuing these issues. He has today, in his usual style, made a compelling case for the quality of special educational needs co-ordinators in schools to be ensured though appropriate professional development and training, and for all teachers to undergo an SEN module.
That would ensure that all teachers were aware of the range of SEN characteristics that could be identified and the range of services available to support and assist all young children. It would also avoid the SEN responsibility being given to a member of staff who was not prepared to undergo the training to carry out the functions seriously. In other words, it would protect children from the possibility of it becoming a box-ticking exercise in which the school could claim that the requirement had been met without anyone with the requisite skills actually being available. We feel that this ought anyway to be a feature that Ofsted routinely inspects in schools.
We rehearsed these arguments in Grand Committee, and the case was well made then for the importance of early identification and intervention to support children with special educational needs; that can make all the difference to the child’s subsequent education and life chances. The requirement in the Bill to have a comprehensive range of SEN co-ordinators is of course a good step forward, which we welcome, but these amendments would build in the extra requirement for skills and quality, which we also think are important.
The Bill talks of possible regulations in this area and obviously some of the detail of these requirements could, quite rightly, be included in regulation. However, the principle of qualifications and training for what is a specialist field is too important simply to be left to regulation, so we support this requirement being in the Bill and hope that the Minister will be able to reassure us that this will be the case.
Lord Nash
My Lords, I thank my noble friend Lord Addington for tabling these amendments and leading the debate on this important issue of ensuring that schools and other institutions have the right expertise within their workforce to support children and young people with special educational needs. I cannot disagree with my noble friend’s intentions. Ensuring that we have a well trained workforce is essential, and is something that this Government are committed to doing. I hope that I can reassure my noble friend that it is possible to achieve this aim without placing requirements in the Bill.
Schools and other institutions that support children and young people with SEN must build the appropriate skills for their staff, and the draft 0-25 SEN code of practice makes that clear. Chapter 6 of the draft code requires schools to make sure that teachers’ ability to meet SEN is included in the school’s approach to professional development and in their performance management arrangements for all teaching and support staff. The chapter also requires schools to review teachers’ understanding of strategies to identify and support vulnerable pupils, and their knowledge of the special educational needs most frequently encountered. This would particularly cover issues such as dyslexia, which my noble friend has spoken passionately about on a number of occasions.
I mentioned in Committee that the latest newly qualified teacher survey, which at that point had not yet been published but was nevertheless giving off strong signals, reveals that teachers feel that the quality of their training in SEN has improved significantly in recent years. Just 5% of newly qualified teachers surveyed this year rated their training in SEN as poor, while 69% of primary teachers and 74% of secondary teachers rated their training as good or very good in helping them to teach pupils with SEN. That compares to as few as 45% in secondary in 2008. I am sure that noble Lords will agree that this is a significant improvement, and I am sure that we all welcome it.
Furthermore, initial teacher training courses must ensure that they enable trainee teachers to meet the Teachers’ Standards. These standards define the minimum level of practice required of teachers, and no trainee should be recommended for qualified teacher status until they have met those standards. Teachers’ performance is then judged against these standards throughout their career.
The Teachers’ Standards state that teachers must,
“have a clear understanding of the needs of all pupils, including those with special educational needs”.
Teachers must also be able to adapt teaching to the needs of all pupils, and have an understanding of the factors that can inhibit learning and how to overcome them. Of course, noble Lords will know that this Government have a strong drive to have more ITT in schools, and many more teachers are now coming through who have been trained in SCITTs, some of whom are at special schools particularly appropriate for training teachers in SEN.
Ofsted has an important role here as well. It inspects both the quality of initial teacher training and the quality of teaching in our schools. These standards and the ability to adapt teaching to meet special educational needs are central to these inspections.
With regard to further education, chapter 6 of the draft 0-25 code of practice sets out that colleges should ensure their curriculum staff are able to develop their skills and knowledge, and that colleges should have access to specialist skills and support when required to help students with SEN to progress. As autonomous bodies, FE colleges are responsible for ensuring that their staff are properly equipped. To support the development of the FE workforce, we are investing £1 million for the existing workforce to undertake the specialist diploma in teaching disabled learners. We are also providing initial teacher-training bursaries of up to £9,000 to help to attract high-calibre graduates to specialise in teaching students with SEN in FE.
Schools and other institutions have very clear duties to ensure that their staff are equipped to support children and young people with SEN. I do not think that it is necessary to introduce a skills audit in addition to these very clear requirements. The Department for Education is funding a range of specialist organisations covering autism, communications needs and dyslexia to provide information and advice to schools on implementing our reforms. The Dyslexia-SpLD Trust, for example, is providing an online professional development tool for teachers to help to assess their current knowledge of dyslexia and access further training. It will also be providing a toolkit to help teachers to identify and respond to literacy difficulties and dyslexia.
I hope that I have made clear that the Government recognise the importance of good teaching for pupils with SEN and that, through the changes in the code and the requirements of the Teachers’ Standards, there are clear requirements on all schools.
I turn to Amendment 46A. When Clause 63 was debated in Committee, I made clear that the appropriate regulations—the Special Educational Needs (SEN co-ordinators) Regulations—continue to require that the SENCO is a qualified teacher, and that SENCOs new to the role must study for the National Award in SEN Co-ordination. This should ensure that SENCOs have a thorough grounding in the knowledge and skills that are required for the role.
My noble friend Lord Addington’s amendment would go further than that in requiring that these skills are kept up to date and that schools ensure that their SENCO has adequate support and opportunities for training. I entirely agree with that aim but do not believe that the amendment is the best way to achieve it. Schools could fulfil the proposed requirement by providing the bare minimum opportunity for further training, and I fear that it would fall short of my noble friend’s intention.
Instead, I propose revising the section of the SEN code of practice that deals with the SENCO role. We will set out that schools “should ensure that the SENCO has sufficient time, training and resources” to carry out their role. This will place an ongoing expectation on schools to ensure that the SENCO is sufficiently supported and trained. As qualified teachers, SENCOs are also judged against the Teachers’ Standards. The code of practice already makes clear that the quality of teaching for pupils with SEN should be,
“a core part of the school’s performance management arrangements and its approach to professional development for all teaching and support staff”.
I hope my noble friend would agree that, taken together, this should deliver what he is seeking to achieve.
On the point made by the noble Baroness, Lady Howarth, about governance, since I came into office governance has been at the top of my list of priorities. As things stand, it is true that governing bodies should have a governor with specialist responsibility for SEN.
I hope that I have reassured the House and my noble friend that the Government are committed to ensuring that our teaching workforce is well trained in identifying and supporting children and young people with SEN. Continual professional development and training is essential for the whole workforce but it is particularly important for the role of the SENCO and, as I have said, I am committed to ensuring that the code of practice goes further than before to adequately reflect that. On that basis, I urge my noble friend to withdraw his amendment.
Lord Addington
My Lords, I thank my noble friend for that answer. I would, of course, have been happier if we had got a commitment, particularly to initial teacher training having a more comprehensive element, and, basically, if all the amendments had been accepted, and accepted a long time ago, and I did not have to raise the subject.
The Dyslexia-SpLD Trust wrote the amendments and, although it is working with the Government, it would still like slightly more from this. It is a long-established fact that if you know what you are dealing with, you stand a much better chance of getting it right. Although the teachers of today are undoubtedly better trained than those of yesterday, I still feel they could be better trained. Having said that, progress is progress. It is fairly late, and the Government are putting pressure on to go forward on this. I will withdraw the amendment, but I am sure that the House will be addressing this issue on numerous occasions in the future. Unfortunately, we cannot draw a line under this. I beg leave to withdraw the amendment.
Baroness Jones of Whitchurch
My Lords, we are very grateful to the noble Lord, Lord Addington, for raising these concerns about the access of apprenticeship trainees to SEN support. As he pointed out, they already have some entitlements that were laid down in previous legislation, but the rights and provisions are not being supplied consistently. This is leading to otherwise excellent trainees failing particular modules of their training because their learning support needs have not been properly identified. It seems that once again apprenticeships are in danger of being the poor relation in the education hierarchy.
There are two ways that these inconsistencies can be addressed. First, all employers and trainers need to be aware of their responsibilities to make proper provision. This echoes the point the noble Lord is raising here. Secondly, apprentices themselves should have greater awareness of their rights, how to access the help they need and how to appeal if they are unhappy with the provision made.
These amendments go some way to addressing these issues. Amendment 46D deals more specifically with the testing regime. We would expect apprentices with SEN to have their needs identified at an early stage rather than waiting until they have failed a component. However, we would also expect provision to be made for an appeal if the failure is felt to be caused by inadequate support for their special educational needs. I very much endorse the arguments the noble Lord made and hope that the Minister will be able to provide reassurance today that these issues are being addressed so that no young apprentice will suffer because of inadequate support for their learning and skills needs.
Lord Nash
My Lords, progress on this issue has been far too slow, and I am very concerned that some individuals have been denied the reasonable adjustments that could have helped them to demonstrate what they know or can do, and subsequently to achieve an apprenticeship.
I thank my noble friend Lord Addington for bringing this very important issue to the attention of the House. He has been an assiduous campaigner for children and young people with dyslexia, and I pay tribute to the way in which he has presented his concerns in this House, particularly during Grand Committee debates. I pay tribute to his passion and persistence. Saying that I managed by my letter to take the wind out of his sails is high praise indeed. I want to take this opportunity to clarify the system allowing reasonable adjustments to qualifications and appeals, and I hope I will be able to reassure him that additional action will happen with an urgency that has been lacking.
As my noble friend knows from our discussions, I share his desire to see reasonable adjustments offered to all young people on an apprenticeship who need them, so that they have a reasonable opportunity to achieve the required qualifications in English and maths. I want to take this opportunity to clarify the clear duty in Part 6 of the Equality Act 2010 on learning providers and awarding organisations to make reasonable adjustments so that disabled people are, wherever possible, not put at a disadvantage compared to other learners. I share my noble friend’s concern that this duty should be applied in every relevant case.
Where a body breaches this duty, individuals may bring a challenge in a county court. The county court can grant any remedy which the High Court could grant in proceedings in tort or in a claim for judicial review. Available sanctions include damages, injunctions and a declaration. In addition, repeated breaches may lead us to challenge the body’s ability to deliver training or to award qualifications. Following the important points that my noble friend Lord Addington made in Grand Committee, I am pleased to be able to place on record that there is nothing in the Apprenticeships, Skills, Children and Learning Act, or in the associated specification for apprenticeship standards in England, that prevents the use of assistive technology for functional skills qualifications.
I am aware that Ofqual has for some time been working with awarding organisations and the British Dyslexia Association to continue to widen opportunities to use assistive technology as a reasonable adjustment. The Access Consultation Forum meets three to four times a year. The next meeting is on 30 January, and this will be on the agenda. Ofqual assures me that it takes the issue of equality very seriously. I understand that the BDA and my noble friend have examples of individuals who have been disadvantaged, and I invite them to provide details of the specific cases to Ofqual, via officials if that would be helpful. Ofqual has committed to investigate the circumstances of all these cases. In addition, we will include new text in the skills funding statement to remind education and training providers of their duty to support young people with learning difficulties or disabilities and of their responsibility for providing reasonable adjustments, including the use of assistive technology where appropriate.
I also agree with my noble friend that we can do more to provide straightforward advice and information on the support available to individuals with learning difficulties or disabilities, so that they understand their rights and can challenge appropriately if they are not properly supported. Noble Lords will be aware that I wrote to the noble Lord, Lord Addington—as he mentioned—on 2 December and committed in that letter to some additional steps to raise awareness of the support on offer.
I know that my noble friend is also concerned that young people should make a good transition out of school and into their next stage of learning. The system that we are replacing has not always served young people well in this respect. The nought to 25 system created by the Bill will ensure a much greater continuity of support between different phases and types of learning. Local authorities will be under a duty to identify all young people aged up to 25 in their area who have, or may have, special educational needs, and to consider whether local provision is sufficient to meet their needs. They may publish a local offer setting out the full range of post-16 education and training provision, including apprenticeships. Young people who need the most support will receive an EHC plan regardless of whether they stay at school, go to FE college or to work-based provision in the private sector, unlike the current disjointed system.
The new nought to 25 code of practice is clear about how schools and colleges should focus much more strongly on helping children and young people prepare for their transition into post-16 education and on to adult life. Chapter 6 states:
“Schools should help pupils to start planning for their future adult life as early as possible, and by Year 9 at the latest”.
This should of course include,
“the range of post-16 options which may be available”.
The draft code also explains the importance of a school sharing information about a pupil’s special educational needs with the college before the young person starts. As a result of my noble friend’s recent appeal, we are working with the Dyslexia Trust to produce clear information explaining the support available to apprentices with learning difficulties or disabilities. This will be made available through the National Apprenticeship Service website and will also include information about assistive technology and reasonable adjustments.
In response to the concerns raised by the noble Lord, Lord Addington, I also asked officials to look into the process of complaints, retakes and appeals to ensure that it is as fair and transparent as possible. Although a process is in place and is consistent with other national qualifications such as GCSEs, I believe that more could be done by centres and training providers to publicise it. My officials checked several apprenticeship provider websites, and, although there were examples of good practice, many do not provide details of their procedures. This contrasts with information on school or university websites, where it is generally very clear how to get advice about support or exam results, and about how to complain. I will ask officials as a priority to find a way to ensure that centres and provider websites publish good information about complaints and appeals on their websites in future. I hope that my noble friend will recognise that, taken together, these measures represent improvements for those undertaking apprenticeships. I hope also that the House will acknowledge the outstanding personal commitment that the noble Lord, Lord Addington, had demonstrated in bringing this about.
I move now to historic appeals for those who failed key skills tests because of failures to make reasonable adjustments. As noble Lords may know, key skills qualifications have been replaced by functional skills qualifications. The last possible date for certification was in 2013. Key skills were phased out very gradually, allowing plenty of opportunities for learners to resit them. Nevertheless, as my noble friend has so eloquently set out, we cannot ignore cases where there is evidence that legal duties have not been adhered to. I have therefore asked officials to work with the British Dyslexia Association and Ofqual to gather evidence and seek a solution to any issues identified, whether current or historic. Officials will be able to advise on specific cases or systemic issues.
I will now make a further specific commitment. Where an apprentice with learning difficulties or disabilities has previously completed all other requirements of a particular apprenticeship, but was not able to pass a key skills qualification, for example because reasonable adjustments were not made, they will be able to sit the alternative functional skills test. They will be entitled to the appropriate support and reasonable adjustments. If this test is passed at the appropriate level, the Government will enable the individual to receive an apprenticeship certificate, even if a year or two has elapsed.
I hope that this will reassure noble Lords that the issue is of great concern to the Government and that we are taking substantial and appropriate action to address it. I am grateful to my noble friend Lord Addington for his work, as I have already said, and I hope that with these assurances he will feel able to withdraw his amendment.
Lord Addington
My Lords, this is one of the speeches I thought I might never get to make. I thank the noble Lord, Lord Nash. Another Minister might have done the job, but it was he who did it. Other Ministers have not addressed this subject. He has gone in and probably made the lives of a substantial number of people considerably better by his actions. I thank him profoundly on their behalf and on my own.
However, I hope the whole House will pay attention to the fact that we took this long to get here, and that officials provided answers for the noble Lord’s colleagues at the Dispatch Box that did not concur with what he has said. This is something about which this House—and indeed the Government—should be worried. The noble Lord took a bold step and corrected something. Once again I thank him. Unfortunately he should not—as I should not—have had to battle away for this long. I thank him for his efforts and for what has happened here. He has made people’s lives better with one blow. That usually makes the day feel a little better in the end. I beg leave to withdraw the amendment.
“Application of Part to detained persons
(1) Subject to this section and sections (Assessment of post-detention education, health and care needs of detained persons) to (Supply of goods and services: detained persons), nothing in or made under this Part applies to, or in relation to, a child or young person detained in pursuance of—
(a) an order made by a court, or(b) an order of recall made by the Secretary of State.(2) Subsection (1) does not apply to—
(a) section 28;(b) section 31;(c) section 69;(d) section 73;(e) any amendment made by this Part of a provision which applies to, or in relation to, a child or young person detained in pursuance of—(i) an order made by a court, or(ii) an order of recall made by the Secretary of State.(3) Regulations may apply any provision of this Part, with or without modifications, to or in relation to a child or young person detained in pursuance of—
(a) an order made by a court, or(b) an order of recall made by the Secretary of State.(4) The Secretary of State must consult the Welsh Ministers before making regulations under subsection (3) which will apply any provision of this Part to, or in relation to, a child or young person who is detained in Wales.
(5) For the purposes of this Part—
“appropriate person”, in relation to a detained person, means—
(a) where the detained person is a child, the detained person’s parent, or(b) where the detained person is a young person, the detained person;“detained person” means a child or young person who is—
(a) 18 or under,(b) subject to a detention order (within the meaning of section 562(1A)(a) of EA 1996), and(c) detained in relevant youth accommodation,and in provisions applying on a person’s release, includes a person who, immediately before release, was a detained person; “detained person’s EHC needs assessment” means an assessment of what the education, health care and social care needs of a detained person will be on his or her release from detention;
“relevant youth accommodation” has the same meaning as in section 562(1A)(b) of EA 1996, save that it does not include relevant youth accommodation which is not in England.
(6) For the purposes of this Part—
(a) “beginning of the detention” has the same meaning as in Chapter 5A of Part 10 of EA 1996 (persons detained in youth accommodation), and(b) “the home authority” has the same meaning as in that Chapter, subject to regulations under subsection (7) (and regulations under section 562J(4) of EA 1996 made by the Secretary of State may also make provision in relation to the definition of “the home authority” for the purposes of this Part).(7) For the purposes of this Part, regulations may provide for paragraph (a) of the definition of “the home authority” in section 562J(1) of EA 1996 (the home authority of a looked after child) to apply with modifications in relation to such provisions of this Part as may be specified in the regulations.”
Baroness Sharp of Guildford
My Lords, I have some sympathy with the amendment. Earlier today we rejected the notion of minimum standards being laid down for local authorities but we made it very clear in that debate that this was a matter for local authorities and that we wanted to see them use their discretion and compete with each other to provide high-quality services for those with special educational needs. Equally, in discussing the local offer, we were concerned not just with those classed as having special educational needs but with the wider community of children who have special educational needs. That is a very large number of children, as has been mentioned already. Some 1.4 million children fall into that category and are served by their schools but depend very much at the moment on local authority services to supplement what the school SENCOs and the school staff can provide.
There is enormous variation between what local authorities do in this regard. Picking up the point made by the noble Lord, Lord Ramsbotham, I believe I am right in saying that Ofsted currently inspects children’s services within local authorities. In so far as it is inspecting children’s services, including protection services, it would not be so difficult for it to take account also of the special educational needs services provided by local authorities. It seems to me that this is not an impossible situation and that the point that the noble Baronesses, Lady Wilkins and Lady Howe, made on accountability, and the need for it, is very important.
Lord Nash
My Lords, I am grateful to the noble Baroness, Lady Wilkins, for tabling the amendment. Earlier today we discussed the government amendment to Clause 30(6) to strengthen transparency and accountability for the local offer. Local authorities must publish comments from disabled children and young people, those with SEN and the parents of such children, about the local offer, including the quality of the provision available and about any provision that is not available in their area. We make clear in the draft SEN code that when local authorities publish their response to comments this includes the action local authorities propose to take. Amendment 33C makes this explicit in the Bill. Local authorities cannot simply publish their response to comments but then ignore them. They must say what action they intend to take. As with every other part of the development of the local offer, children, young people and parents will be involved in discussions with local authorities about the action they propose to take.
When we debated the local offer, I emphasised that we are not yet clear about whether inspection is necessarily the best way to encourage a good local offer. I hope that the confirmation that we have asked Ofsted to deliver a study to identify best practice in preparing for the SEN reforms, and consider particularly whether there is a need for an inspection framework to drive improvements, is reassuring. It has been asked to deliver the study this summer, not next spring. I hope, too, that the noble Baroness, Lady Wilkins, is reassured that the study will include local authority specialist services supporting children and young people with special educational needs and those who are disabled, and say how Ofsted intends to monitor those services. The study will focus on the extent to which local areas ensure that children and young people with SEN and those who are disabled are identified and their needs met. It will look for improved outcomes and the satisfaction of parents and young people. It will establish a baseline from which to evaluate progress in implementing the reforms; provide guidance to local authorities about the development of effective practice and advice about aspects requiring further development; and consider how, if required, effective accountability could take place.
The study will consider how local authorities identify and assess social care needs and ensure that those needs are met, look at how local authorities will work with clinical commissioning groups to identify and commission the range and sufficiency of specialist services required to support the needs of children with and without EHC plans, and evaluate the effectiveness of these services. The study will also consider arrangements for personal budgets, transition to EHC plans and how school and college inspection and other inspection activity could provide ongoing information about the effectiveness of the local area’s arrangements.
This is a comprehensive study. Should Ofsted recommend that an inspection framework is needed we would, of course, take that very seriously. If it does not make such a recommendation, we will consider what further action is necessary. I should make it clear that we have not ruled out inspection by Ofsted of local authority support services.
In terms of accountability, schools are ultimately responsible for the progress of all pupils where additional support is needed. Schools should use their best endeavours to ensure that those needs are met. The Ofsted inspection framework introduced in September 2012 places a clear emphasis on meeting the needs of disabled pupils and those with SEN. Inspectors must consider the quality of teaching and the progress made by these pupils. Where a school has a specialist resource base or integrated unit, these are covered as part of the inspection. Ofsted also inspects special schools, which provide support for sensory impaired children and others who may currently have a statement of SEN. This means that any deaf child in a mainstream or specialist school would have their education inspected as part of the Ofsted Section 5 framework. I want to stress that the SEN reforms will provide legal protections for families wanting to challenge councils through their involvement in determining local provisions. Not only do the SEN reforms in the Bill provide legal protections, they will also establish a better system for identifying need and commissioning services across education, health and social care to ensure that services provided match local needs as accurately as possible and so that families do not have to battle to get those services.
Of course, the success of the reforms will depend on changing culture and practice locally. We cannot just pass this Bill, walk away and hope that things happen. I agree entirely with the point made by the noble Lord, Lord Ramsbotham, about ensuring that local authorities perform. That is why my department is monitoring closely the readiness of local areas to implement these reforms in preparation for September 2014. There is already a package of support for implementation delivered and co-ordinated by our strategic delivery partners—the Council for Disabled Children and pathfinder champion lead via the pathfinder support team at Mott MacDonald. The Minister for Children and Families has written to all chief executives of local authorities and clinical commissioning groups about the reforms. We will be monitoring local authorities’ progress in implementing the reforms from September 2014. We will consider what further steps may be needed in the light of this information and the findings of the study being conducted by Ofsted into local authority practice in preparing for and taking forward these reforms. I will certainly ensure that we look at the prior art to which the noble Lord referred and that we take seriously the whole issue of ensuring that delivery happens on the ground.
I hope that I have been able to reassure noble Lords about the measures that we have taken to improve transparency and accountability for the local offer. I also hope that what I have said about the Ofsted study and the approach we will take to monitoring the implementation of the reforms in some way reassures the noble Baroness, Lady Wilkins, that we will consider the issue of inspection carefully once we have the findings from that study, and I urge her to withdraw her amendment.
“( ) In subsection (1), after “local authority” insert “in Wales”.
( ) In the title, after “with” insert “statement of”.
55A In section 562D (appropriate special educational provision: arrangements between local authorities), in subsection (2) after “local authority” insert “in Wales”.”
“Children Act 1989 (c. 41)(1) The Children Act 1989 is amended as follows.
(2) In section 23E (pathway plans), in subsection (1A)(a) after “Education Act 1996” insert “or Part 3 of the Children and Families Act 2013”.
(3) In Part 1 of Schedule 2 (provision of services to families) in paragraph 3 (assessment of children’s needs) after paragraph (b) insert—
“(ba) Part 3 of the Children and Families Act 2013;”.”
Lord Nash
My Lords, government Amendment 50A makes consequential amendments to Section 23E of, and Schedule 2 to, the Children Act 1989.
A pathway plan makes plans for a looked-after child leaving care and sets out the role of the local authority once the young person has left care. The pathway plan is about managing that transition. Section 23E of the Children Act 1989 allows the local authority to combine assessments in respect of pathway plans with other assessments, including an SEN assessment under Part IV of the Education Act 1996. This technical government amendment would ensure that Section 23E of, and paragraph 3(b) of Schedule 2 to, the Children Act would be able to include, for England, assessments under Part 3 of the Children and Families Bill. I beg to move.