Children and Families Bill

Neil Carmichael Excerpts

Tuesday 11th June 2013 Commons Chamber

[Mr Timpson]

As ever, I am grateful to the Chair of the Education Committee for raising a crucial element for many young people with a disability, and that is access to other activities outside those of the classroom. I am mindful of that and as I told the Committee this morning have seen for myself, at a special school in Chislehurst only last week, how the integration of sport in schools, where children with both physical and other disabilities are able to participate, can have a huge knock-on effect in other areas of their life. It would not always be appropriate through the identification of the needs and therefore the support for each child in relation to their plan to have a built-in element that incorporates and encompasses physical activity, but clearly we want to provide as much opportunity for them as for any other child. The schools should be doing it anyway under the Equality Act 2010 and the reasonable adjustments for which they are responsible, but it also makes good sense, as we know. I am happy—I made this commitment to the Committee—to look at that in the context of the code of practice, but also to work with many of the organisations and charities who are already out there, through the project ability scheme and others, to see what more they can do to spread good practice in this area. I am happy to keep my hon. Friend informed of that process.

[Neil Carmichael (Stroud) (Con)]

As has been mentioned, the Select Committee held a series of pre-legislative scrutiny meetings. Is the Minister satisfied that there are sufficient accountability mechanisms for agency co-operation, and that the appropriate agency will automatically take the lead? How will that work out in different cases?

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[Mr Timpson]

I have a strong memory of spending a late night in the House a few years ago when my hon. Friend managed to get more than 100 of us to present petitions on behalf of many of those parents who decided to home educate their children. I know that he, as chair of the all-party group on home education, has been a great advocate on their behalf. Clearly we want to ensure that every child with SEN, however they are educated, during the period of compulsory age and beyond, from nought to 25, gets the support they require to meet their full potential. That should be no different in the circumstances he describes. I will be able to respond in more detail when we debate his amendments, and I am happy to continue that conversation with him outside the Chamber.

[Neil Carmichael]

On home education and the obvious issues relating to special educational needs, what consideration has the Minister given to registration of those children who are home educated?

[Mr Timpson]

I am straying slightly outside my portfolio, but where it impinges on special educational needs clearly we want to ensure that those children receive the support they require. There were attempts in the last Parliament to bring about some form of registration, which was eventually put out to grass. I think we have the balance right at this stage, but of course it is something that my ministerial colleagues who are responsible for these matters will no doubt keep under review.

The new duty in the Bill relating to health commissioning also brings in joint commissioning arrangements, which must include those for securing education, health and care needs assessments and the education, health and care provision specified in the education, health and care plans. The new health duty requires health commissioners to ensure that the health elements of those plans are provided for each individual, thus providing direct clarity for parents that the support their child needs will be provided

We have taken an open approach to the Bill, listened carefully to the views of a wide range of people and made changes to improve it. I know that is the approach that my ministerial colleagues in the other place, including Lord Nash, intend to continue when the Bill makes its way to them. However, before it does we have some important business to conclude in this House today.

I will begin our consideration of the Bill’s SEN provisions by speaking to new clause 9 in a little more detail and to Government amendments 17 to 25. These amendments clarify responsibilities and make consequential amendments to legislation as a result of provisions in the Bill. With regard to new clause 9, it is important that the responsibilities of local authorities are clear when a child or young person with an education, health and care plan moves from one area to another. The new clause provides for regulations to specify those responsibilities. Regulations will make it clear that the new local authority is treated as though it had made the plan. This ensures that plans do not lapse when children and young people move from one area to another and that support for their special educational needs is maintained. I therefore urge the House to support new clause 9.

Amendment 17 to clause 41 has been tabled at the request of the Welsh Government. It would enable independent schools that are specially organised for making provision for children and young people with special educational needs, and specialist post-16 institutions in Wales, to apply to the Secretary of State for Education to be on a list of independent institutions that those with education, health and care plans can ask to be named on their plan. If independent schools in Wales wish to put themselves forward for approval, the amendment will be of benefit to children and young people who live close to the Welsh border whose needs would be best met in a Welsh independent school or those who would be appropriately placed in independent boarding provision in Wales. I urge the House to support the amendment.

On amendments 18 to 20 on personal budgets, I signalled our intention to table these consequential amendments when we debated clause 48 on personal budgets in Committee. The changes they make are necessary because of the changes we made to clause 42 in Committee by placing the duty in clause 42(3) on health commissioners to secure the health provision identified in an education, health and care plan. The amendments allow health commissioners to discharge their duty to make health care provision specified in EHC plans when this provision is secured using a direct payment. This replicates the equivalent provision on local authorities set out in clause 48(5). The amendments clarify that when parents or young people exercise their direct payment, this allows the commissioning body to discharge its statutory duty. The proposed use of the words “having been” in clauses 48(5) and 48(7) makes it clear that the duties on commissioning bodies and local authorities to secure provision are discharged only through the use of a direct payment when the child or young person has actually received the provision, in a manner in keeping with the regulations. I urge the House to support these amendments.

Government amendment 21 relates to clause 49, which inserts new section 17ZA into the Children Act 1989, giving local authorities a power to continue to provide services they have been providing under section 17 to a young person before their 18th birthday to that young person when they are 18 and over. This is a technical amendment that makes it clear that the power in section 17ZA applies only to local authorities in England.

Government amendments 22 to 25 relate to schedule 3 and make further amendments to existing legislation as a consequence of the Bill’s provisions—for example, replacing references to statements and learning difficulty assessments throughout. These are necessary changes to ensure the proper implementation of the reforms in part 3, and I therefore urge hon. Members to approve them.

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[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the hon. Member for Washington and Sunderland West (Mrs Hodgson), who rightly said that the Public Bill Committee not only saw a cross-party coming together of minds, but delivered meaningful scrutiny of probably the most important Bill relating to special educational needs that we will see in a generation. It is 30 years since the Education Act 1981 broke the ground after the noble Baroness Warnock made her recommendations. We are in the unique position as legislators of being able to make a step change for the generations to come. That is why it is incumbent on us all to get the detail right.

I thank my hon. Friend the Minister for his constructive engagement with the debate, and not only in the Public Bill Committee. He has engaged not only with Members of this House, but with the disability sector. He has brought understanding and experience to the deliberations of the Bill, which we have enjoyed. I note with enthusiasm his willingness to improve the Bill. As has rightly been said, the Government have introduced important legal duties on clinical commissioning groups to bolt down the health elements of education, health and care plans. That good work goes on today in the form of further amendments.

To get to the meat of the matter, I will deal in turn with each of the amendments that I have tabled; my comments have been foreshadowed by those of the hon. Member for Washington and Sunderland West. I am grateful to her for outlining what I want to say and make no criticism of that at all. Amendment 37, which appears in my name and hers, relates to the social care element of education, health and care plans. It is, as she described it, the last piece in the jigsaw.

I enjoyed the exchange that I had with the Minister about this matter in Committee. It is correct that the groundbreaking Chronically Sick and Disabled Persons Act 1970 contains an important duty that can be applied to social care services for disabled children. However, there is a danger that in failing to link that existing duty with the duties that we are creating, we will not escape the silo effect of assessments. What do I mean by that? There is a danger that a wholly separate social care assessment will continue to be made, without the global approach that I and the Minister believe is the ethos behind the Bill. It would therefore be a missed opportunity if, for want of a few short amendments, we missed this trick.

We should look at this matter from the point of view of the parent of a child who comes fresh to a system of which they have no experience. Surely the thrust of our approach must be oriented around not just the child, but their family. We have heard many stories—I speak from experience—of parents having to reinvent the wheel every time they engage with a separate part of local provision. We must all seek to avoid that. That is why I commend the wording of amendment 37, which would do much to tie together the assessment process in the way that I have described.

On a related theme, and with regard to the point of view of parents and families, amendment 38 deals with the right of appeal against decisions that are made about the creation and ambit of education, health and care plans. The Bill allows the first-tier special educational needs and disability tribunal to hear appeals only about the education aspects of the plan. That means that it covers only part of the plan. I worry that we could end up with a complex and bureaucratic system in which challenges to the health and social care aspects of provision have to be conducted simultaneously through different tribunals, procedures and processes.

I noted with encouragement the Minister’s comments in Committee. I know that the draft code of practice, which is helpfully published alongside the Bill and will be consulted on later this year, states that having a single point of redress for all the provisions in an education, health and care plan would be helpful. He said in Committee that the existing complaints procedures in health and social care meant that it would be unnecessary to extend the powers of the tribunal. However, he made the important concession that a single point of reference would be desirable. That is helpful.

[Neil Carmichael]

When the Education Committee considered that aspect of the measures during pre-legislative scrutiny, two issues arose. The first was the difference in culture between education and health. I wonder whether my hon. Friend wants to comment on that, given that we expect education and health bodies to work together and that any accountability process could be complicated. The second issue was that health would have to take the lead in some cases because it would have the overwhelming portion of the responsibility, but the Bill focuses on education.

[Mr Buckland]

I am grateful to my hon. Friend, because he makes an important umbrella point about the difficulties that could be encountered and that—dare I say it—could be exploited by clever lawyers. I often say that and I have to remind the House that, although I am not sure that I am clever, I must admit that I am of the legal profession. It is proper to concede that point against my profession, because lawyers will be instructed by local authorities that need to conserve their resources and will increasingly look to discharge their statutory duties, but to go no further. We have to avoid the scenario of families having to wait for provision while lawyers dance on the head of a pin over costly and unnecessary arguments.

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[Mr Buckland]

I am extremely grateful to my hon. Friend, who, in effect, gives us a case study. He reminds me that I want to draw back to what we were discussing. I have a hypothetical case study before me. A young 15-year-old with Asperger’s and co-occurring mental health difficulties receives cognitive behavioural therapy. Before starting that therapy, his attendance at school was low, attending as few as two days a week, but with the help of the therapy he attends more like four days a week. His conditions have a huge effect on his home life and the quality of relations with his parents and wider family.

Under the new system, it is not clear whether that young man’s cognitive behavioural therapy would be deemed

“wholly or mainly for the purposes of…education”.

Without it, he could not access education, because he would not attend regularly. We need to answer that question. We do not want to put such people in that position, or to have artificial debates on what the law means.

[Neil Carmichael]

My hon. Friend is making an outstanding speech on a critical issue. I want to reinforce the point made by my hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman) on the importance of access to national facilities, because we must not localise provision at the expense of national organisations. Ruskin Mill in my constituency, and the National Star College in my county, provide expertise that we do not necessarily find elsewhere that is critical to young people’s futures. I want to put down a strong marker that we should ensure that national facilities are not put at risk through the funding—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. We are drifting now. Interventions are supposed to be short points that are relevant to the speech at the time they are made. If Members want to contribute, they can. The hon. Member for South Swindon (Mr Buckland) has had the floor for some time, and other hon. Members wish to speak in this important debate. Despite his generosity in giving way, I am sure he is probably coming towards the end of what he wishes to say in this part of the debate.