Children and Families Bill

Lord Storey Excerpts

Wednesday 6th November 2013 Grand Committee

Moved by

[Lord Storey]

181: Clause 51, page 38, line 12, at end insert—
“(g) the social care provision specified in an EHC plan;(h) the healthcare provision specified in an EHC plan”

[Lord Storey (LD)]

I will be quite brief; I do not have all my papers together. I feel that all of us in this Room realise the importance of this piece of legislation. We are looking to support the work that has been going on. The needs of children with special educational needs are not purely educational, or purely to do with health or social care; a combination of provision might be needed. For the first time, as it says on the label, parents will be supported by this legislation and will not have to go through a great difficult bureaucratic system. Their children will have a plan that will clearly spell out their needs. I say again how much I appreciate the revised code of practice, which is excellent and shows clearly the steps that need to be taken.

If a parent wants to appeal against the fact that they have not succeeded in gaining a plan, or if there are aspects of the plan that they are not happy about, we should make it as easy as possible. As it says, this legislation concerns children and families; it is family-friendly and children-friendly. The notion that parents and the child or young person then have to go through a labyrinthine method to resolve issues seems to go against the grain of what we are trying to achieve. As the document says, we are supporting parents all the way through. When there is an appeal, the code of conduct rightly refers to arbitration and how it can be resolved. However, if you then have to take your “complaint” somewhere, you do not want to have to go to three different bodies. You want to be able to take it to one person or one body who can sort it out for you one way or another. That seems to be in the whole spirit of this legislation.

Without pre-empting what the Minister will say, I guess that he will point out that we are talking about very different animals here. Health people are very different from education people and local authorities. I understand that, and that it might cause problems in trying to have that single point of appeal. My preference is to have a single point of appeal so that parents know where they are going and for it to be included in the code of conduct. If that is not possible, is there any way for parents to be supported and guided through the difficult processes? We are all interested in the well-being of the parent and the child or young person. I beg to move.

[Baroness Hughes of Stretford (Lab)]

My Lords, I support Amendment 181, moved by the noble Lord, Lord Storey, to which I have added my name. I shall also speak to Amendments 182 and 272. To some extent, we are rehearsing today, in these amendments, some of the arguments that we had earlier this week about social care. They concern the fundamental question of how serious the Government are about instigating a new system that is integrated right through from the point of early identification, assessment, provision and appeal.

As the Bill stands, we have integrated assessment, at least in the EHC plans, but we do not have equal accountability in terms of integration of provision because of the social care situation. Here we do not have integration from the very important perspective of parents’ and children’s experience in relation to appeals. Therefore, I strongly support Amendment 181, which would add social care and healthcare provision specified in EHC plans to the First-tier Tribunal as a mechanism of appeal. I would be grateful if, in his reply, the Minister would go beyond what he has already said to us, which is that there are established routes of complaint about social care through local authority complaints procedures and the Local Government Ombudsman, and clear and specific routes of redress within the NHS, its complaints processes and the health ombudsman.

Anybody who has tried to help a family to negotiate those two avenues of appeal will know how complicated they are. In addition, it is very important that, in relation to the substance of the complaint—as opposed to maladministration—they do not end up with an independent adjudication between the views of the complainant and the views of the service provider. The parents in this case would have to, for example, fully exhaust the local authority’s own complaints procedures as a first step; that could take many months. Of course, that adjudication is not independent; it is the local authority adjudicating on the complaint. They can then go to the Local Government Ombudsman, but that person will adjudicate only on the principle of maladministration—that is, on whether the authority has not followed the proper procedure. He will obviously not adjudicate on the substance of the complaint. It is a similar situation in relation to health.

Therefore, if the parent has to negotiate those two systems, it can take a very long time. Many noble Lords will have had a number of pieces of correspondence from Jane Raca, who is a lawyer and author and has a 13 year-old, very disabled son. She outlines the detail of the Local Government Ombudsman procedure and shows that it takes months and sometimes years. I know from my previous constituency experience that that is the case and, furthermore, it does not actually judge independently on the substance of the complaint.

The other important point is the one made by the noble Lord, Lord Storey, that—by their nature, and this is very welcome—EHC plans are meant to integrate an assessment around social care, health and special educational needs. A severely disabled child is likely to have needs in all three categories, so a parent might have concerns or complaints about all three categories of need. Under the current arrangements, as the noble Lord, Lord Storey, said very clearly, they would be faced with the almost impossible task of appealing through three different systems at once, at the same time as coping with a very disabled child and probably other children in the family. That is just not reasonable. If we came at this through the vision of the parent contemplating that system, it would look impossible. It would defeat many of us, let alone parents coping with very disabled children. Therefore, I really hope that the Minister will take this on board and see this very important and welcome principle of integration right the way through from assessment to appeal.

Our Amendment 182 would oblige the Secretary of State to publish information about special educational needs cases going to the tribunal. We feel it is important to bring much needed transparency into the system and put an end to practices by some, though not all, local authorities, such as systematically taking cases to court, keeping the cost down in the knowledge that many families will not challenge a decision or spend any money on legal fees, in order to avoid having to pay for the provision in the first place—taking the step early of going to appeal, rather than trying to get a local resolution. Whatever the Government decide, it is important that we regularly review which kind of cases are going to the tribunal and their outcomes, and that we have this information published regularly.

Amendment 272 simply ensures that the detail of, and any change to, the provisions in Clause 51(4)—that is, the regulations laid to provide for appeals to the First-tier Tribunal—will be subject to an affirmative resolution procedure through statutory instrument. It is right that Parliament should be able to comment on the proposals for appeals that the Government put forward.

--- Later in debate ---

[Lord Low of Dalston]

I did not quite follow the point that the noble Baroness, Lady Perry, made when she talked about the danger of privileging children with special educational needs over other children. The fact is that we have a separate system that children with special educational needs can get into, and if they do not have them they cannot do so. However, for those who can get into the system it is surely right that it is the best possible system that we can make it and is immune from criticism on the sort of grounds that have been advanced this afternoon regarding the need for a single point of redress.

[Lord Storey]

I very much welcome each contribution on this amendment and thank the Minister for his response. I want to reflect carefully on what he has said. I agree with the noble Baroness, Lady Perry, that we would have to consider carefully any suggestion of inequality or people being treated differently. As always, the noble Baroness, Lady Morris, puts her finger on the issue. Those of us who have worked in education know that the culture of social services and health services—please do not take offence—is often different from that of education services, and friction and difficulties can often occur.

When I was researching this topic, I was thinking, “Yeah, come on; it makes sense to have one single point of appeal, doesn’t it? Who could argue against that?”. But then people say to me, “Oh no, because, because, because”. I would want to test that a little more thoroughly. It would have been interesting if the Government had put it the other way around and said, “We want you to make this work. Never mind your different cultures; we want one point of appeal. Go away and do it”. When they come back with the work we would then see whether it was possible. I really want to interrogate this issue because it surely makes sense.

Finally, I thank the Minister and welcome his comments on Amendments 183 and 184. I beg leave to withdraw the amendment.

Amendment 181 withdrawn.

--- Later in debate ---

[Lord Storey]

I want to make a few points on both these amendments. I do not particularly like award ceremonies, but if there was one, the award for the most persistent Lord—the “dog fighting for a bone” award—would have to go to the noble Lord, Lord Addington. No sooner had I become a Lord than he was on at me about how important this matter is. From time to time, we should applaud each other’s efforts. I very much applaud his efforts on this.

The point made by the noble Baroness, Lady Perry, about the support that universities and schools give was important. I know that we do not particularly like giving anecdotal tales, but I will give one. A close friend of mine has a daughter who has mild cerebral palsy. She is dyslexic and dyspraxic. The support that she had at school was amazing. She went on to the University of Leeds, where she was given a scribe to help her work and so forth. When she had difficulty in her first year, the university let her repeat the year. She repeated a term and has now passed and—guess what—she is doing a master’s degree. If we can give that support in higher education and schools, we should give it for apprentices as well.

[Baroness Sharp of Guildford]

I would just like to point out that the support given in further education colleges, which provide much of the off-the-job training for apprentices, is also considerable. They also provide scribes and so forth. The problem is the accreditation procedures that are required for apprenticeships. It is a very narrow issue and it is quite absurd that we have not been able to solve it.

[Lord Storey]

I thank my noble friend for that.

I now turn to the graduated approach. We have come a long way in special educational needs, have we not? Schools must have SENCOs and a written policy. That is all to be applauded. The code of conduct clearly says that there has to be a qualified teacher working at the school, and that a newly appointed SENCO must be a qualified teacher and have the appropriate qualifications. Of course, we have SENCOs in schools who do not have those qualifications and we may need at some stage to visit that issue. The SENCO is important. You can have all the policies in the world but the SENCO makes them happen.

When we were talking about this—and I have experience of school action, school action plus and IEPs—I was quite alarmed. I said, “Man the barricades”. But the code of practice is a realistic response. It is clear in all sorts of ways. It states, on initial identification:

“As part of a graduated approach to tackling need … reviews of progress should be held once a term”.

Maybe that “should” should be “must”. It continues by stating that,

“there should be a plan that focuses on what outcomes are expected and the support that the school, college and any relevant agencies will provide”.

I applaud the document and I am more relaxed about the issue.

I say to the noble Lord, Lord Low, that I thought that IEPs were a real step forward, but my experience of them is that in many cases, sadly, they have become paper-writing exercises and increase the bureaucracy. What is needed is a much more focused and realistic approach, which is why I like the fact that the code states that the teacher has to meet the parents once a term and discuss the progress that has been made, presumably outside the normal parents’ evening.

I am slightly relaxed about the concern about school action and school action plus. What is in a name? It is not about a name. It is about an approach, an ethos, a culture and a doing mentality. I am sure that the progress we are making on that will help towards it.

[Baroness Howarth of Breckland (CB)]

We could talk about both these amendments all night. I just want to say two sentences. First, I agree with the noble Lord, Lord Storey. It is not about the name but about what will happen in the process on the ground in relation to that amendment. Returning to the noble Lord, Lord Addington, I agree with the noble Baroness, Lady Sharp. We need to focus on the very narrow issue of ensuring that this process can be taken forward. Quite frankly, the Labour Government should have got this into their apprenticeship legislation when they brought it forward in the previous Parliament. If the Minister cannot do what the noble Lord suggests, I hope he will take this away, look at it and come back on Report. That is the simplest way, and it is achievable.

--- Later in debate ---

[Lord Storey]

My very first Oral Question was on dyslexia. I have raised the issue on a number of occasions and the Government’s response has always been positive in the sense that they say they have made more money available to universities for courses that they run. It seems very simple and yet very important, first, to ensure that all teachers—not just some—have an understanding of special educational needs and how to identify problems. To have early intervention, you have to be able to identify the problem, otherwise it does not work. Where a classroom teacher sees an issue, they need to be able to understand it and then refer it to the SENCO. The best way of doing that is through training our teachers. It is almost a no-brainer: it is very simple and easy to do and lots of universities and training institutions currently do it. If some do it, why can all not do it?

The second issue, as has been pointed out, is something that we have already put in the code of conduct, where it is very clearly spelled out. We must congratulate the Government on taking the next step and saying that not only should SENCOs be qualified teachers but that, furthermore, newly appointed SENCOs should have the relevant qualification. That is very important—it was not mandatory before and now it is. They are the people who can then deal with all the other issues we have talked about. I would take it a step further and say that existing SENCOs, who are not newly appointed to the SENCO role but may have been in post for several years, should also have to obtain this qualification. They might be doing it for the next 20 years, so should also have that qualification. We should perhaps give them a period of several years’ latitude to take the qualification, but we want to see a situation where teachers, through their training, know the issues and where there is a qualified person in every school to deal with these issues. That way, the excellent work that is suggested in the code of practice will actually happen, because there are people who know what they are talking about and know what to do.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will comment briefly on the amendments and support the noble Lord, Lord Addington, and other noble Lords who have spoken this afternoon. As ever, the noble Lord, Lord Addington, made a very powerful case for quality teaching to identify children with dyslexia and all other specific learning difficulties. It is important that we broaden it and do not just concentrate on the—very important—needs of children with dyslexia.

In earlier debates on the Bill, and again this afternoon, we have stressed the importance of earlier intervention. The noble Lord, Lord Storey, has just done that again. It is important that we identify children at the earliest opportunity so that we can give them the support they need to maximise the opportunities that their education can give them. These amendments clearly build on that theme. However, for early intervention to take place consistently, all teachers should be trained in the technique of spotting where it might be necessary. They need to be aware of the range of support mechanisms that are effective and can make a difference. This cannot be left to chance or to some teachers developing a personal interest in SEN, which is, all too often, what happens at the moment.

For each teacher who is unaware, or fails to act, another child’s life chances are blighted. We very much agree with the mandatory module in teacher training. Leaving it to individual schools to provide the knowledge and skills for teaching staff will leave it too late, and we believe it will result in piecemeal provision if we proceed on that basis. Sorting this provision out is crucial to the success of all other aspects of the Bill when it comes to SEN. If we do not get teacher training right, all the other aspects of support that we are talking about here will fall at the very first hurdle.

We also agree with the proposal that the SEN co-ordinator should be a qualified teacher who has been trained in SEN and specific learning difficulties, and we were pleased that the Minister has now acknowledged that the co-ordinator should be a qualified teacher. These high-level skills are crucial to ensure that the school properly focuses attention on the needs of specific groups of pupils, as specified in the new Ofsted framework. It is an interesting development that, with the Government’s new-found faith in unqualified teachers, special educational needs co-ordinators will be the only posts in a school required to be qualified teachers, but I slightly digress.

This leads to another issue, which is that if the Minister agrees with the amendments with regard to teacher training modules and the status of school SENCOs, we are faced with a considerable knowledge deficit among existing teachers, both qualified and unqualified. What further steps do the Government intend to take to ensure that training for existing teachers and, indeed, existing SENCOs can meet our expectation of early intervention and action? How can we be confident that their knowledge of the latest physical and technical equipment is kept up to date if we are focusing just on newly qualified teachers and new training for SEN teachers? I am echoing the points made by other noble Lords, and I hope that the Minister will be able to address the issues.

--- Later in debate ---

[Lord Addington]

My Lords, for me this is a case of “three times pay for all” when it comes to dyslexia. The reason I have tabled this amendment is because you find abundant evidence of special educational needs among our prison population. The estimates for the number of prisoners on the dyslexia spectrum range from 20% to 50%, the higher figure being the more frequently occurring. It is generally accepted now that every problem to do with literacy and educational attainment occurs in abundance throughout our prison population. I have singled out dyslexia for screening because of my interest in it and because it will probably be the most frequently occurring problem.

Why do we need to conduct screening for dyslexia? A few years ago I became familiar with a project in Chelmsford Prison under the leadership of Jackie Hewitt-Main. She discovered that lots of dyslexics would go nowhere near the education department. One realises in three seconds that they go nowhere near it because it constitutes a bad experience for them. Most prisoners are no longer in school by the age of 14. If someone has not been attaining in the education system, it is an unpleasant experience and they often find themselves getting into enough trouble to send them to prison. It is as if they are saying, “Let us go in there and go through a bad experience in the classroom”. Suddenly, it becomes obvious that they will try to avoid that. The redoubtable individual I mentioned was originally looking at head injuries, of which she found many. She did a survey of prisoners who would not go into the education block. She found that once you had established that link to their previous experience these prisoners became much more open to training and to assistance in changing their lives. The incidence of violence on the wing in question dropped and the prisoners stopped hitting one another quite so much—perhaps they had something to talk about. It was subsequently discovered that half the prison warders were in the same boat. As an aside, dyslexics tend to like regular hours and regular forms et cetera. They do not like promotion when they have to change the form, but that is an aside for another day.

So having a form of assessment on entrance into the system would seem to be sensible idea. Once again, I have one caveat, which I have given before: you should probably extend this to a list of other conditions. For example, I discovered that Asperger’s is overrepresented as well. If you have problems with communication and you have problems with the law, once again it becomes quite obvious how that could happen and you go down the list. But the principle of screening is a good one. Of course, you have to back this up with the correct action. I am afraid that bits of the Prison Service have a history of screening and saying, “Yes you are”, and then doing nothing about it. An awareness programme must back it up. That is what is required.

The noble Lord, Lord Ramsbotham, who I am afraid has had to leave us, asked me to speak to his Amendment 213. The idea that you should maintain the EHC plans once you are inside the prison system or custody service does not require much thought. If you have an identified process going or a pattern of activity, it should be maintained or at least replaced by something extremely similar to it or better. That is fairly straightforward.

Then we come to another thing that the noble Lord, Lord Ramsbotham, has tabled: removing Clause 70 from the Bill. I was half thinking about putting my name to this amendment, but I was beaten on the draw by many other Members of the Committee. Noble Lords should not press this if the Minister can tell us that the Ministry of Justice has a specially constructed programme that will address the needs of its client base that goes beyond, and is more appropriate than, that provided outside. That would be a good reason for not removing the clause because—nobody disputes this—we have a very high need base. If there is something that it is appropriate for adults or young people disaffected with the education system and is especially suited to them, you should not remove it.

If we do not get that quality assurance, we will not get people who will be able to talk about administering educational needs identification or coping strategies for how to access further education, where it is appropriate, and there will be problems. If you do not have people with a degree of sensitivity and skill in there, you should remove the clause. If we hear that we are going to do lots of wonderful things with people who are not properly trained, not skilled and not accustomed to the environment they are going into, the possibility of achieving nothing or even doing damage is high. These are probing amendments and I look forward to hearing what my noble friend has to say.

[Lord Storey]

Any hope of improving the education of detained young people must include addressing their special educational needs. It is a frightening statistic that 70% of those young people have special educational needs and 20% of them currently have statements.

The existing statutory duties placed on those councils that have a youth offender institution in their area—a host authority—by the Apprenticeship, Skills, Children and Learning Act 2009 are to use,

“best endeavours to secure that appropriate special educational provision is made”,

but of course councils have never had the funding or the commissioning responsibility for securing that education. Those duties are currently fulfilled through contracts made by the Education Funding Agency funded by the Ministry of Justice.

As the concept of the host authority has never been implemented in practice, it would perhaps be helpful to see this complicated situation resolved by repealing those clauses in the Apprenticeship, Skills, Children and Learning Act 2009 that refer to the host authorities. The Government have acknowledged that the current situation is not working, and could use the opportunity to make provision for young offenders with special educational needs that can work in practice and really address the needs of those young people.