Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Lord Touhig Excerpts

Monday 16th January 2012 Grand Committee

[Lord Low of Dalston]

My Lords, I am extremely grateful to the Minister for writing to me personally to give me maximum notice of this debate, which has been brought on fairly quickly after the new year. I am not complaining about that. We asked the Minister to make debating the order a priority in the parliamentary timetable when the order-making power was inserted into the Bill on Report so that the proposals could be given the fullest opportunity to show their worth. It is therefore good that we have this early opportunity of scrutinising the order. Like the department, we want to get on with the pilots and evaluating them in order to understand how much substance, if any, there is in the concerns that have been expressed. It was nevertheless considerate of the Minister to give me maximum notice.

The Government have been very accommodating in the approach that they have adopted in the development of the order. In response to representations, they agreed that it should require the affirmative rather than the negative procedure. The sunset horizon has been reduced from five years to two years and the pilots will be undertaken only in pathfinder authorities or those that are piloting direct payments in health.

Some further safeguards asked for have also been introduced. In response to representations from the Special Educational Consortium, the order has been reworded with a view to ensuring that the receipt of a direct payment in no way threatens the statutory right of the child to receive the educational provisions set out in their statement and that the viability of specialist SEN services is not threatened by direct payments taking resources out of the system. Nevertheless, I confess to retaining a degree of scepticism about the Government's ability to ensure all of that and as to what will be the effect of direct payments in practice.

I hope that the Minister will not feel that, having been absent on the occasion when the order-making power was added to the Bill, I have turned up as a bit of a wet blanket as regards the general consensus established on a previous occasion and that he does not wish that I had stayed away again this time. I do not wish to be a wet blanket but just like the noble Lord, Lord Rix, I wish to draw attention to a number of concerns that need to be bottomed, which I believe the Minister is as keen to bottom as anybody.

Education is a universal service for all children. What will be the effect of resources being taken out of the system by way of direct payments? What will be the effect on other children with SEN who do not have direct payments? Will they see services reduced? What will be the effect on the ability of schools, colleges and local authorities whose responsibility it is to educate disabled children and children with SEN to plan for the coherent delivery of the relevant services?

I understand that all relevant statutory duties, such as the duty to provide or arrange special educational provision contained in Section 324 of the Education Act 1996, remain in place throughout the pilots. I also understand that the order includes a requirement in paragraphs 11(c) and 17(f)(i) that local authorities consider the potential adverse impact on other services that they provide or arrange for other children and young people in their areas and that they stop making direct payments if it becomes apparent that the payments are having such an impact. But direct payments take money out of the system. How can the Government be sure that this will not threaten the viability of specialist services? How can they be sure that giving responsibility to the parent instead of the local authority or school will not undermine the legal right of children to receive the provision that they are entitled to? The Government may say that they do not want these things to happen, but how can they ensure it?

There may be unintended consequences too. Some schools and local authorities may wash their hands of difficult children by encouraging parents to take a direct payment. Parents and young people may be encouraged to take a direct payment when assessments are unclear as to what they are entitled to, thus putting their ability to purchase the necessary support at risk. What if parents do not use the direct payment for the purpose for which it was intended? Parents do not always behave as responsibly as we would like. Of course, the local authority might be able to take them to court, but that is surely not where we want to end up.

The Special Educational Consortium is concerned that the Government have not fully considered the impact of resources for this universal service being taken away from schools and local authorities and being held by individuals. Careful thought will need to be given to the impact of parents or young people holding the budget. Direct payments held by parents and young people will inevitably interact with school and college finances and employment policies. This may have implications for the way schools and local authorities plan for the education of children with special educational needs. For example, if a parent employs a teaching assistant to work with their child in school, who will be responsible for managing that teaching assistant? Who ensures that the child’s teacher works collaboratively with the teaching assistant? Who is accountable for the education outcomes for the child, and ultimately how will schools’ ability to plan provision for all children with SEN be affected? Safeguards to ensure the sustainability of specialist support services, particularly for children not eligible for direct payments, need to be copper-bottomed.

There are other concerns, such as how the Government will ensure that the provisions set out in the statement are properly quantified and specified before a direct payment is made. I will not go on listing them in more tedious detail now. The department is aware of these concerns from the Special Educational Consortium. They clearly place a premium on the evaluation of the pilots for bottoming the extensive range of issues to which this order gives rise.

I was greatly encouraged by the way in which the Minister was seized of the importance of evaluation when the order-making power was inserted into the Bill on Report and, most important of all, that he clearly saw the importance of approaching the evaluation with an open mind and not with a preconceived idea about what should come out of the pilots. The fact that the department is also working so co-operatively with the Special Educational Consortium on the development of the order and, I hope, with the development of the pilots is very much to be welcomed and is very encouraging. Undertaken in that spirit, I greatly look forward to the results of the evaluation.

[Lord Touhig]

My Lords, I join other noble Lords in thanking the Minister for sharing with us the correspondence that his fellow Ministers have had with others because that was very helpful in updating us on progress. As a result of the Education Act 2011, the Secretary of State now has the power to create pilot schemes to test the use of direct payments for meeting special educational needs in education settings. During the passage of the Bill, the Government accepted that this important proposal should receive the appropriate level of parliamentary scrutiny and that it should be done by the affirmative resolution procedure. The Government introduced that at that stage. In his opening remarks today, the Minister very kindly gave me some credit for that idea, but it was not really due to me: it was a holy trinity as the noble Lords, Lord Low and Lord Rix, had the same idea. Unfortunately, they could not be present on Report, so I actually spoke the words and got the credit that the Minister has given me. A holy trinity and not one part of the deity alone was responsible for this proposal, and I am delighted that the Government welcomed it.

On Report, I and others welcomed the greater personalisation of education provision for children and young people with special educational needs because it is right. However, there are some particular risks in the use of direct payments in education, particularly in schools. This is a major change in the way that education is delivered, and it is right that it is being carefully considered. I know the Special Educational Consortium has been working closely with the Minister’s officials. I am very grateful for and appreciative of the hard work that his officials have put in and the understanding that they have had in trying to mitigate some of the worries that the Special Educational Consortium and others have had about aspects of the Bill.