Children and Families Bill

Lord Storey Excerpts

Wednesday 5th February 2014 Lords Chamber

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

My Lords, I want to speak to the group of amendments beginning with Amendment 4, which are tabled in my name. The amendments follow previous, very constructive discussions in Committee and on Report about the SEND tribunal and redress, with contributions from a number of noble Lords. I thank in particular the noble Lords, Lord Rix and Lord Low, my noble friend Lord Storey and the noble Baronesses, Lady Hollins, Lady Hughes and Lady Howarth, for their contributions in those debates and subsequent discussions with me and my noble friend Lord Howe.

As noble Lords will have heard me say previously, one of our main aims in introducing the special educational needs clauses in the Bill has been to reduce the adversarial nature of the SEN system. We want children, young people and parents to have a better experience when engaging with the SEN system, particularly when children and young people are being assessed and, if people have complaints, when they are seeking redress.

We have taken action to ensure that people have a better experience of the system. Just recently, the Minister for Children and Families announced a £30 million programme to provide parents and young people with independent supporters to help them through the process of assessment and drawing up EHC plans. The new assessment process which will be brought in by the Bill will be more joined up and participative, with the education, health and social care services being more directly involved and with a more active role for parents, children and young people. Education and health will work together jointly to commission the services that children and young people with SEN will need.

With reference to complaints, we have maintained in the Bill the duty on local authorities to arrange disagreement resolution services so that parents and young people can resolve disagreement with local authorities about authorities’ duties under this part of the Bill, and with schools and further education colleges about their provision for individual children and young people with SEN.

We have introduced consideration of mediation and the opportunity to go to mediation before parents and young people can register appeals with the tribunal. We know that many parents currently find appealing to the tribunal stressful and off-putting, despite the tribunal’s efforts to hold the appeal hearing in an informal venue where the lay person feels comfortable presenting their own case.

Mediation offers parents and young people an excellent opportunity to discuss their concerns about assessments and education, health and care plans in a non-adversarial setting, assisted by a trained mediator. If they are able to reach agreement with the local authority, it means that they or their children will be provided with the support that they want more quickly than if they waited for a tribunal hearing to be arranged. There is no compulsion on the parties to agree, so if parents and young people are still concerned about what special educational provision is being offered, they can appeal to the tribunal.

However, the Bill as currently drafted means that health and care provision is excluded from the disagreement resolution, mediation and appeal processes. Noble Lords have rightly raised their concerns about this. Following the commitment that I gave on Report, we have worked with colleagues at the Department of Health and the Ministry of Justice to develop a package of proposals to address this issue. These amendments provide that package.

The amendments will widen the disagreement resolution and mediation arrangements to cover health and social care and will require the holding of a review of the complaints and redress arrangements for those with education, health and care needs, with the review including pilots to test the tribunal making recommendations about health and social care.

On disagreement resolution and mediation, all local authorities currently have to make disagreement resolution services available. We will widen these so that when an assessment or reassessment is being carried out, or an EHC plan being drawn up or reviewed, parents and young people will be able to ask for disagreement resolution on health and social care complaints as well as on education complaints. As with the current arrangements, engaging disagreement resolution services will be voluntary on both sides—the parent or young person and the local authority or CCG. Similarly we are proposing to widen mediation to cover health and social care. This will mean that after an EHC plan has been drawn up, parents and young people will be able to go to mediation about the health and social care elements even if they did not have a concern about the education element. If they wanted mediation on health or social care, the CCG and local authority, respectively, would have to take part.

On Report we had an extensive discussion about the merits of a review of redress in the system. I am pleased to have tabled Amendment 33 today, which will establish such a review. The Secretary of State and the Lord Chancellor will hold the review to look at how well the redress arrangements under the Bill are working; and more widely at other complaint arrangements relevant to children and young people with education, health and social care difficulties. The review will take account of the Francis and Clwyd reviews of complaints in the health service. We will involve other organisations which have an interest, such as the tribunal, Healthwatch, the Local Government Ombudsman, the Health Service Ombudsman and Parent Carer Forums.

The Secretary of State and the Lord Chancellor will report back to Parliament within three years of the implementation of the SEN provisions making recommendations as to the future of redress and complaint arrangements, including recommendations on the role of the tribunal. We believe that we would have to give sufficient time to build up the evidence on which to make recommendations. However, three years is a maximum and if the review felt it had the evidence in less than that time it could report to Parliament earlier. I estimate that we might have sufficient evidence by the summer of 2016, so I can say that the review would report no less than two years from the implementation of the Bill and no more than three years.

Part of the review will involve pilots testing the tribunal making recommendations on the health and social care aspects of plans where parents and young people have complaints about them and they are already appealing to the tribunal about the special educational element of the plan. This would mean that they could have their complaints about the plan considered as a whole rather than in isolation. The recommendations would not be binding on CCGs and local authorities as social care providers but we would expect them to consider seriously any recommendations the tribunal made. The pilots would begin in the spring of 2015 as the first appeals about EHC plans begin to be heard, be carried out in at least four local authority areas and would last for two years while it builds up evidence on which to base any recommendations about the future role of the tribunal.

I believe that, taken together, this is a strong package which addresses the need to provide parents and young people with a more joined-up way of dealing with complaints which go across education, health and social care. I beg to move.

[Lord Storey (LD)]

My Lords, my noble friend Lady Northover used the term “consensual”. That is a very appropriate word to use—it is almost the hallmark of the Bill. On every issue we have tried to come to a consensual agreement, understanding the needs of children and families. These amendments are very helpful. I said on Report that if we could not agree a single point of appeal as part of this Bill that would happen in the future without a shadow of doubt.

It seems to me that people who look at this objectively would think, “Wow—amazing. We have a plan for each child that’s joined up for education, health and social care. That’s very progressive legislation”. And then they would scratch their head and say “But if something goes wrong, or you want to make an appeal about something, why are there three separate appeals mechanisms and three different routes?” That is very confusing and intimidating to parents—there should be one point of appeal. That has been the line that many of us have taken all the way through the passage of this Bill.

I am absolutely sure that the Minister and his team have tried to accommodate that view. I have met with various Ministers and civil servants from other departments. I actually think the amendments probably make sense, because the culture of those departments is very different. There would be a danger that if we did not tread carefully, we would make a mess of the appeals process. So yes, we want a single point of appeal in the future. Yes, it makes sense to deal with disagreement in mediation. Yes, it makes sense to have pilot schemes that we can look at. That will be a really important step forward.

I do not intend to speak again today so I will end my comments by thanking the Minister and my noble friend Lady Northover for the incredible commitment and amount of time they have given during the passage of the Bill. They have been prepared to meet at any time, almost at the drop of a hat, any group on any subject. That has been amazing. I also thank the members of the Bill team, who have been absolutely stunning. I do not think I have come across a group of people who have been so prepared to help in a neutral, fair and supportive way—if you can have those three words linked together. I thank all concerned.