Children and Families Bill

Lord Touhig Excerpts

Monday 4th November 2013 Grand Committee

Moved by

[Lord Touhig)]

137: Clause 36, page 29, line 33, leave out subsection (10)

[Lord Touhig (Lab)]

My Lords, Amendment 137 is tabled in my name and those of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch, and the noble Lord, Lord Low of Dalston. I shall speak also to Amendments 145, 165, 173 and 175 in this group. Amendments 137, 145, 165 and 173 seek to amend various clauses, including Clause 36, “Assessment of education, health and care needs”; Clause 37, “Education, health and care plans”; Clause 44, “Reviews and Re-assessments”; and Clause 45, “Ceasing to maintain an EHC plan”. All these clauses refer to a local authority “having regard” to a young person’s age when making a determination. Examples include the review of a plan or the decision to cease to support a plan. Similar amendments to these were tabled in the other place seeking to replace the reference to age with a reference to having regard to “educational outcomes”, but these amendments go further and would simply remove the references to age altogether. This is something that I am sure colleagues in the Committee know that the sector is much exercised about. These amendments seek to ensure that children or young people with education, health and care plans are supported to achieve qualifications similar to other children and young people regardless of their age, so long as they are under 25.

The provisions as currently outlined are restrictive and there is a lot more that should be taken into account by local authorities when deciding whether a young person needs a plan or remains in need of one. Many young people have specific circumstances such as spending periods of time not in education or training, the reasons already discussed in relation to previous amendments, or they may lag behind because of their specific learning difficulties. It is therefore essential that decisions should be based primarily on educational outcomes rather than a young person’s age.

These are probing amendments, and removing the reference to age is not an argument for support to go on indefinitely. Indeed, I think that the age of 25 is a sensible and proper target, but it is also wrong that age should be the overriding factor that is considered by local authorities, as the clauses currently suggest. The Minister in the other place agreed that age should not be the only factor considered when determinations are made, but he did say that the Government,

“want the clause to prompt local authorities, once a young person is aged over 18 … to take a thorough look at whether outcomes have been achieved and the young person has made a successful transition to adulthood”,

and went on to say that:

“The relevant regulation in the draft plan assessment regulations sets out that, when undertaking reviews, local authorities must consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan”.—[Official Report, Commons, Children and Families Public Bill Committee, 16/4/13; col. 562.]

However, Clause 45(3) already requires a local authority,

“to have regard to whether the educational outcomes specified in the plan have been achieved”,

when it is considering whether to cease maintaining a plan. I therefore argue that the emphasis currently placed on age in the legislation is a complicating factor, causing entirely unnecessary ambiguity and potentially undermining the attainment of young people.

For 20 years I served as a councillor in a local authority and I know that colleagues on all sides of the Committee have also served at different times. I can tell the Minister that, from that experience and knowledge, the legislation as drafted will allow cash-strapped councils to drive a coach and horses through it—and they will certainly do so. It is a local council’s great escape and this will rival the film “The Great Escape” if we are not careful. Surely we do not want that to happen. I fear that the emphasis on age will work against what we are seeking to do in the Bill as a whole.

I turn to Amendment 175 tabled in the name of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch. Clause 46 states that:

“A local authority may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person attains the age of 25”.

As with previous clauses and amendments that we have already discussed, there is a concern that too much emphasis is again being placed on age as opposed to the educational outcomes of a young person. There is serious concern that such references to age could lead to local authorities cutting support part way through apprenticeships or other training courses. As I have stated previously, while support cannot continue indefinitely and 25 is a good cut-off point, we have to be careful about using age as a determining factor.

I welcome the fact that apprenticeships are now included in the Bill, and we are all grateful to the Government for listening to the representations made by noble Lords on all sides. However, age or the academic year should not be the only factor. The overwhelming factor should be the educational outcome for the young person. I am pleased that the Government, following an undertaking given by the Minister in the other place, have looked at this and have included the objectives of this amendment in the regulations. I thank the Government for listening because it leads to good and sensible dialogue and we then make better law than would otherwise be the case. In those circumstances, I beg to move.

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[Lord Touhig]

My Lords, the Secretary of State, Mr Gove, said in a speech at what may have been his party conference:

“I’m really lucky to have as the Minister for Children and Families Edward Timpson. In the last year, Edward has transformed the education of children with special needs in order to ensure that all young children living with a disability at last have the support they need all the way up to the age of 25”.

I repeat: all the way up to the age of 25. In the debate in the other place the Minister said, as I said in my opening remarks, that age should not be the only factor considered when determinations are made. In response to this debate the Minister has said that our concerns on the age question are unfounded. If he can assuage our concerns and take out the reference to age altogether, we will all be happy bunnies. It is as simple as that.

The noble Baroness, Lady Sharp, said rightly that age was an artificial link. So far as my Amendments 137, 145, 165 and 173, as well as colleagues’ amendments are concerned, it is important to bear in mind that the Bill says that local authorities should “have regard to” a young person’s age when making a determination, for example, to review or cease a plan. I do not know how this is going to turn out, but we may well come back to it. Recently I spoke to someone I have known for years. He worked with me when I was a councillor and he was a local government official. We discussed this and he said, “Give me half an hour and I will give you three papers in which you as a councillor will be able to say, ‘We do not have to continue this support because of the age question’”. The noble Baroness, Lady Howarth of Breckland, made the important point that councils do not want to do anything bad or wrong in terms of this Bill or what they want for young children with disabilities or learning difficulties, but because of financial difficulties and other reasons they will look at the legislation to see if there is a way to avoid doing a particular thing.

I think we share an ambition to try to resolve this. The Minister cannot fail to have been impressed by the quality of the comments and the expertise of this Committee, and I am sure that every Member will happily volunteer to join his Bill team. We will find the time in our busy lives to help him redraft some of these amendments so that he will not have this problem. I do not think that it is going to go away. We will come back to it on Report. In the mean time, I beg to leave to withdraw the amendment.

Amendment 137 withdrawn.

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Moved by

[Lord Touhig]

144: Clause 37, page 30, line 20, at end insert—
“( ) any provision deemed necessary to be made available to the family of the child or young person which may assist in the promotion of the wellbeing of the child or young person concerned.”

[Lord Touhig]

My Lords, Amendments 144 and 146 are tabled in my name and that of my noble friends Lady Hughes and Lady Jones and Amendment 175A in my name only.

Clause 37 deals with EHC plans and subsection (2) specifies what should be in the plan. Amendment 144 states that the plan should specify any provision necessary to the family of the child or young person. As with a number of other amendments, it seeks to place the capabilities of the child or young person’s family at the heart of any assessment process, which is important in properly informing the provision that they may need to have specified in an EHC plan.

It is prudent that family life and home life are considered when the provision is made. Families are key to the well-being of children and young people with special educational needs and disabilities and to ensuring that they reach their full potential. They are a crucial resource in improving the outcomes of those children and young people and we should not overlook them. In the other place, the Minister said that EHC plans should describe the range of services that are needed to meet the needs of a child or young person and that the focus of plans must be the child or young person. He cited other things that would benefit parents and families, such as short breaks or the provision of transport. He said that the Government did not think it necessary to add anything specific to the legislation but would continue to develop the code of practice. I am not sure that he is right in that respect, but I am encouraged that the Minister said that he will look again and reflect on Amendment 131, tabled and spoken to by my noble friend Lady Jones. As that is very similar to Amendment 144, he might care to reflect on Amendment 144 at the same time and give us some good news afterwards.

Amendment 169 is tabled in response to the report of the Delegated Powers and Regulatory Reform Committee on this Bill. The Government have not tabled any amendments in response to the report, so I hope that the Minister will take this opportunity to explain how the powers will be used.

I turn to Amendment 175A. All too often, we hear of the adversarial struggle that parents face to obtain the right support for their children. If anybody has any doubt about that, I suggest a five-minute conversation with the noble Baroness, Lady Browning, who will enlighten them about the way parents often have to struggle on behalf of their children. The stated intention of the Bill is that it will make it easier for families to get the support they need. That is a noble intention.

However, an oversight in the Bill about what happens when a family moves is causing great uncertainty and anxiety to a great number of families and support organisations. We all know the terrible struggle that families with children and young people with special educational needs and disability too often have to go through to access vital services. Seven out of 10 parents of children with autism, for example, say that it has not been easy to get the educational support that their child needs.

Without Amendment 175A, such families will continue to have to struggle to access the services that they desperately require. The Bill currently perpetuates the status quo, whereby when families move from one local authority area to another, they do so without any clear idea as to what support their child might receive. They can also face the prospect of costly legal battles, with the appalling result that children and young people end up missing out on education while such battles are fought.

In many cases, parents feel trapped. A parent told the National Autistic Society—here I declare an interest as a vice-president of the National Autistic Society—that they feared moving because,

“we would have to start the assessment process from scratch, even though Mohammed has very complex needs. The stress of doing that all over again, along with the risk that we might lose his place at his current school is terrifying for us”.

It cannot be right that, should the family move, they might have to restart the assessment process, potentially disrupting the education and healthcare of children and young people.

The amendment is intended to echo existing clauses in the draft Care and Support Bill, which set out a local authority’s responsibility both when someone moves into the area and when someone moves out. It is impracticable to expect local authorities to replicate exactly the provision agreed by a different authority. However, it should be expected that provision is based on the previous assessment and agreed outcomes rather than starting from scratch. The positives of such streamlining are manifest: withdrawing the shadow of fear for families that they may have to undergo complex assessments for a second time; and ensuring crucial continuity of provision of services for children and young people.

Regulation 3, paragraph 15, entitled “Transfer of EHC plans”, sets out in detail what should happen when a child or young person with an EHC plan moves to another local authority area. Unfortunately, it makes no mention of continuity provision. I wonder whether the Minister will be prepared to review that. Alternatively, will he commit to, at a minimum, strengthening the regulations that will dictate the portability of education, health and care plans to ensure that there is clear guidance for local authorities and coherence between this Bill and the Care Bill?

As a brief aside, when I served as a Defence Minister, I constantly found that servicemen were reluctant to move, sometimes even when it involved a promotion, if they had children with special educational needs and their children were statemented, because they had to go through the whole process again. We were working on a plan for a statement passport. Unfortunately, I had a phone call from No. 10 and Mr Blair awarded me the DCM—don’t come Monday—so I was no longer a Minister and was unable to take that forward. However, there is merit in having such a passport. By ensuring that education, health and care plans are portable across local authorities, we will ensure continuity of service. I think that we all want that, and, therefore, I beg to move.

[Baroness Howe of Idlicote]

My Lords, I have tabled two amendments in this group. Before I speak to them, I want to say how impressed I was by what the noble Lord, Lord Touhig, had to say about his amendment, which I certainly fully support. It is important that movements by families of this kind should be facilitated and that they receive the same care as they would have, had they stayed where they were.

Amendment 147 would insert a new subsection after Clause 37(4) stating that:

“In making a decision for the purposes of this section in relation to a young person aged over 18, a local authority must seek psychological advice from an educational psychologist”.

I have tabled the amendment to explore two specific concerns about this clause. The first is about the support available to young people with special educational needs aged between 19 and 25. Although educational psychologists principally work with children and young people aged from nought to 19, the profession is increasingly supporting young people over the age of 19 in a number of settings, including the further education sector. Currently, educational psychologists across the country are playing an important role in supporting these young people. However, under the provisions of this clause, it is not clear what role educational psychologists will continue to play in post-19 settings, and how this will be promoted. The proposed age extension to 25 years has been welcomed for the assessment process, but that will need careful workforce development planning to ensure that young people aged 19 to 25 years are well supported by a sufficient number of educational psychologists in future.

It would certainly be helpful if the Minister, when he replies, could set out clearly how he envisages the new proposals helping educational psychologists to contribute to supporting young people. It would also be useful if he could explain the impact of the changes on future workforce development. The Government clearly need to ensure that enough educational psychologists are being trained to meet future demand. I would also like some clarification on the role of educational psychologists in the assessment of children and young people who come in from outside the system; that is, if they have moved to the UK from abroad. Under the current proposals, it is unclear how these children and young people will be supported. I hope that the Minister will be able to provide us with adequate reassurance on this important issue.

I turn now to my second amendment, Amendment 168, which would amend Clause 44, headed “Reviews and re-assessments” by inserting a new subsection:

“Following a review of re-assessment, a local authority has to seek psychological advice from an educational psychologist”.

One of the reasons that this whole area is coming to the forefront of our discussion is the increasing emphasis being placed on mental health problems. I hope that this issue is being taken more seriously than perhaps it was in the past.

I am encouraged that the Bill will retain the existing protections for parents, including an explicit right for them and for the school to request education, health and care plans. I know that during scrutiny of these clauses in the other place, the Minister for Children confirmed that under the proposals, there will be access for all children and families to specialist services such as educational psychology on an equitable basis. Currently, under statute, a reassessment of SEN follows essentially the same process as the initial assessment. If a child or young person’s needs change, a further assessment can be requested and, if carried out, the local authority must comply with all the statutory requirements, including meeting time limits and consulting with professionals as specified in the regulations; that is, educational professionals, educational psychologists, social services and health services.

However, under the Bill, a new concept of reassessment is now being introduced which allows a local authority to determine the format of the reassessment. Local authorities will no longer have the same duty to consult and obtain evidence from designated professionals and can choose to review only a specified aspect of the EHC plan. Although the code of practice states that reassessment must follow the same process as an initial assessment, I know that there are concerns that under the Bill, there is no guarantee that EPs will be consulted when a reassessment takes place. The fact that children and young people undergo a reassessment because there is a significant change in their needs makes it more important that educational psychologists are involved, to ensure that the child’s voice is considered. Educational psychologists will also work with parents and schools to ensure that the right support is found for the child.

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The noble Lord, Lord Touhig, mentioned the position of servicemen when they move. I absolutely agree with him about the issues that face service families, which is why we have included a specific section in the code giving guidance and support for the children of service families, including when they move area. When families move, the new authority must maintain the plan until there has been a reassessment. The new authority should use existing assessment information where still relevant as set out in Chapter 7 of the draft code. We are content to come back and check that this is covered adequately in the regulations and code. Finally, the noble Baroness, Lady Wilkins, asked about coverage for Traveller children. Broadly, children will be included as part of the regulations on transfers of plans and we will write to the noble Baroness with further details. I therefore hope that noble Lords will feel able not to press their amendments.

[Lord Touhig]

My Lords, we have had quite a wide-ranging debate and the Minister has had to cover a huge number of issues in his response. I am sure that all noble Lords will want to read Hansard and reflect on his comments to decide whether there is any purpose in taking these matters further. As regards the amendments to which I directly spoke, the Minister’s answer on Amendment 144 was not quite what I had expected, but I will look carefully at what he said in Hansard. On Amendment 169, the Delegated Powers and Regulatory Reform Committee report on the Bill said:

“We invite the House to ask the Minister better to justify the scope of the powers conferred by clause 44(7)(b) which to us, in the absence of an explanation, appears to be inappropriately wide”.

Again, I am sure that I will not be alone in studying the Minister’s reply to see if he has satisfied any concerns. Amendment 175A seeks to ensure portability. I was encouraged because the Minister was nodding vigorously while I was speaking, so I had much hope that we would be going in the direction that I want. Again, I will look carefully at his remarks in Hansard to see whether there is any need to pursue this matter further on Report. I am grateful to all noble Lords who have taken part. We have had a very good debate and I beg leave to withdraw the amendment.

Amendment 144 withdrawn.

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In this context, it is perhaps worth noting that independent schools often have pupils from many local authorities. The ISC specialist schools tell me that they can have statemented pupils from up to 25 local authorities at any one time. Ceding too much control over admissions to local authorities could thus have a much greater impact on specialist independent schools than on those in the maintained sector, which normally deal with just one local authority. Amendments 157 and 159, which provide that local authorities should secure the consent of independent specialist schools before they are named, will address these concerns in full. I beg to move.

[Lord Touhig]

My Lords, I will speak to Amendment 158 in my name and in the names of my noble friends Lady Hughes of Stretford and Lady Jones of Whitchurch, and to Amendment 161 in my name.

Clause 39 deals with requests for particular schools or institutions in EHC plans. As drafted, the clause sets out that if the school requested is unsuitable for the child, or incompatible with either the provision of efficient education for others or the efficient use of resources, the local authority will ensure that the plan names a school or specifies the type of institution which could be appropriate. This amendment would ensure that parents agreed with the school chosen by the local authority when their first choice did not work out, before the local authority is able to name the second choice school in the EHC plan. This issue has already been discussed in relation to a previous clause.

It is, shamefully, already the case that some schools unfairly reject children with special educational needs; the Bill would continue to allow them to do so. I have been taking part in the Lord Speaker’s outreach programme and not so long ago I visited a school. I looked through the school’s prospectus, which said, “We welcome children with disabilities and special educational needs”. The next sentence started, “However”. That is, I fear, too often the case. Concerns have already been expressed about this issue by other noble Lords—notably, at Second Reading, by the noble Baroness, Lady Grey-Thompson. This amendment would ensure that, where parents try to name a school and a local authority relies on an exception under subsection (4) in order to refuse to name that school and then puts forward another school, the second choice school can only be named on a plan if the young person or parents agree.

I turn to Amendment 161. Clause 41 enables the Secretary of State to approve certain institutions, such as independent schools, for the purpose of enabling the institution to be the subject of a request to be named in an EHC plan. Subsection (5) gives the Secretary of State power to make regulations about giving and withdrawing approvals. This amendment would require the regulations to also set out the rights of appeal, the timetable for that and what the relationship with the local offer will be in such circumstances.

A similar amendment was tabled by Robert Buckland MP in the House of Commons. Robert Buckland was my Conservative opponent when I was first elected to Parliament. He is now chairman of the All-Party Group on Autism and is a doughty champion of people with special educational needs. He has done a tremendous amount of work and many of his arguments are well worth listening to. When he argued this in the other place, the Minister said that:

“The indicative regulations set out the procedures and timetable for the Secretary of State to follow on approving institutions … Regulations 5 and 6 set out the procedures for the Secretary of State to follow in withdrawing approval.”

However:

“The regulations do not set out procedures on how to appeal or review the Secretary of State’s decision”.—[Official Report, Commons, Children and Families Bill Committee, 16/4/13; col. 508.]

The Government appear to believe that such regulations are unnecessary. Consequently, without this amendment, families and young people are left without a route of appeal in such circumstances. That is a serious omission from the legislation which serves to undermine the power of children, young people and their families to get the best for their youngsters’ needs. The Minister’s colleague did not see the merits of that argument when it was advanced by Robert Buckland in the other place: I hope he will be convinced by it in this place.

[Baroness Perry of Southwark (Con)]

My Lords, I very much support the amendment in the name of my noble friend Lord Lexden. I recently spent a day at Gretton School in Cambridge: an independent school entirely for children across the whole range of autism. Some of the most severely autistic young people are in classes of four and five. At the end of my visit, I took my hat off to the patience and skill of the school’s teachers. As I said, it is an independent school; it also offers boarding. It takes children from a wide range of local authorities from the eastern and East Anglia regions. Most of them come with statements from their local authorities and are supported by them, but many parents have to pay additional fees for boarding. Gretton School and others such as those my noble friend described have an important part to play in the range of offerings for disabled children. It is important that they are named in the Bill, as otherwise local authorities may simply assume that they cannot be included in EHC statements. I very much hope that the Minister will look sympathetically at these arguments.