Children and Families Bill

Lord Rix Excerpts

Tuesday 7th January 2014 Lords Chamber

Moved by

[Lord Rix]

38: Clause 42, page 34, line 10, at end insert—
“( ) If the plan specifies social care provision, the responsible local authority must secure the specified social care provision for the child or young person.”

[Lord Rix (CB)]

Noble Lords will have noticed, no doubt, that Amendment 38 would place a duty to deliver the social care element of the forthcoming education, health and care plans, which gives me an excuse to indulge for a short time in a worry that has bothered me for more than 30 years. In the 1980s, I began to have discussions with civil servants, politicians and administrators, particularly at the old DHSS—then located at the Elephant and Castle—about increasing co-operation between education, health and social care, and was told on many occasions that this was the recognised way forward. The will seems always to have been there, but meaningful co-ordination and collaboration on the ground has failed to emerge. It has been entirely dependent on local circumstance. We need to change that.

To the Government’s credit, they have recognised the problem and have taken the very welcome step forward of amending the Bill so that clinical commissioning groups are under a duty to provide the health element of the plan—but, alas, social care remains the poor cousin. This could easily be remedied by aligning the duty to provide social care services, as laid down in the Chronically Sick and Disabled Persons Act 1970, with the education, health and care plans that appear in the Bill. In this suggestion I am supported by not only my fellow signatories to the amendment but by the Special Educational Consortium and the Every Disabled Child Matters campaign.

Currently, many families do not receive the care they need until they reach breaking point—something to which Mencap drew attention in a recent report of that name. A duty to deliver the care elements of the plan will ensure that children, young people and their families receive services earlier, thus preventing the need for higher levels of support later. I understand that the Government are looking into this matter— something I warmly welcome, if the outcome is correct. I look forward to the Minister’s response. I beg to move.

[Lord Low of Dalston]

My Lords, my name is on the amendment and I wish to give my full support to my noble friend Lord Rix, who moved it. It would place a duty on local authorities to deliver the social care services identified in education, health and care plans. The contention of the noble Lord, myself and the other noble Lords who have their names on the amendment is that there is very little point in assessing a child or young person’s needs, identifying social care needs and putting them in the education and health plan, and then not making the plan enforceable in respect of social care as it is in respect of education provision.

As I think the noble Lord, Lord Rix, indicated, the amendment would add no new duties on local authorities to provide social care in addition to those that already exist. It merely brings together the legislation on education, health and care plans and existing social care legislation. There is currently a misconception that the social care duties in respect of disabled children are not specifically enforceable for an individual child. However, as I think the Government accept, this duty does already exist under Section 2 of the Chronically Sick and Disabled Persons Act 1970. The proposal contained in this amendment would help to correct this misconception.

The Government have argued that a proposal to create an individually owed duty in relation to social care would prioritise one group of children in need over another. However, there is already an individually owed duty to disabled children in Section 2 of the Chronically Sick and Disabled Persons Act, as I indicated, which is not enjoyed by other children in need. We had a good discussion about this in one of the Minister’s meetings with Peers, which I think we all found very valuable in developing our understanding of the Bill. I think we managed to elucidate in that discussion that if one were going to establish priorities between different groups of recipients of social care, it would have to be done at a prior stage to the formulation of the education, health and care plan. If the authority has got to the point of identifying social care needs and putting them in the plan, it really does not make any sense in terms of integrated education, health and social care provision not to make the provision identified in the plan enforceable.

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[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.

Amendment 38 withdrawn.

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Moved by

[Lord Rix]

40A: Clause 51, page 38, line 42, at end insert—
“(g) the social care provision specified in an EHC plan;(h) the healthcare provision specified in an EHC plan.”

[Lord Rix]

My Lords, Amendment 40A, supported by my noble friends Lord Low and Lady Hollins, seeks to create a single point of appeal across education, health and care. If we are to create a joined-up system across education, care and health, we must apply the same principle to an appeals process. The case was well made by noble Lords in Committee, and I know that the Minister sympathises with the arguments.

My concern is for parents whose sons and daughters have profound and complex needs that cut across education, care and health. If in September this year the provision set out in the plans is not up to scratch, parents could end up appealing left, right and centre, across three very different cultures—from the SEN tribunal, to the health ombudsman and on to the social care chamber. Ultimately, this is about making the system run smoothly so that parents can get on with just being parents—often, as I say, to children with the most complex needs. I fear that unless we do something, parents will remain knee-deep in a quagmire of different agencies, desperately battling for support so that their sons and daughters can, rightly, achieve their aspirations.

The noble Baroness, Lady Hughes, has tabled an amendment that could see a review looking at the feasibility of bringing appeals for education, health and care together. It seems that it is a case of fix now or fix later. For the sake of disabled children and young people, and their families, I hope that whatever the outcome, the fix is soon. I beg to move.

[Lord Low of Dalston]

My Lords, I have my name on the amendment and give my noble friend Lord Rix my full support in moving it. The case seems self-evidently made and I do not wish to add a great deal to what my noble friend has said.

The raison d’être of this legislation, by and large, is the Government’s attempt to sweep away the barriers of bureaucracy which, it has been well attested, have come between parents, families, children and young people and the assertion of their rights in relation to special educational provision. The Government have, very laudably, brought forward this legislation to try to tackle some of those barriers by developing an integrated system of provision through the integrated education, health and care plan.

We said in relation to an earlier amendment that it does not make much sense to put things in an education, health and care plan and give people the right to enforce provision only in one or maybe two areas but not a third. Equally, it does not make any sense to create an integrated system of provision using education, health and care plans, with a view to sweeping away barriers of bureaucracy by putting in place an integrated system of provision, and then give people a wholly unintegrated system of enforcing their entitlement to what is specified in those integrated education, health and care plans.

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[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.

Amendment 40A withdrawn.