Children and Families Bill

Robert Buckland Excerpts

Tuesday 11th June 2013 Commons Chamber

[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.

[Dan Rogerson]

I am grateful for the huge amount of work that the hon. Gentleman has done on this subject during the passage of the Bill and elsewhere. He is making a strong argument for a unified appeals process. There is strong logic, which has been pursued by the Minister and his predecessor, my hon. Friend the Member for Brent Central (Sarah Teather), for bringing the processes together so that families who are looking for support have one point of contact or one meeting to attend. Does the hon. Gentleman agree that if the current tribunal process is not the right way to achieve that, the Government can continue to consider the matter as the evidence comes back from the pilot?

[Mr Buckland]

I am extremely grateful to my hon. Friend for his kind remarks. He makes an important point about a common entry point for families. That is a good start, but more needs to be done to build on it. To be frank, it may not be necessary to do that through primary legislation and the rules of the tribunals might be used. That would be a matter for Her Majesty’s Courts and Tribunals Service. I know my hon. Friend is liaising with counterparts in the Ministry of Justice on other matters that I shall come on to, and I sure he will also give this issue careful and anxious thought.

At the moment, clause 50(4)(a) allows

“other matters relating to EHC plans against which appeals may be brought;”

to be added to the jurisdiction of the tribunal. To be fair to my hon. Friend, there does seem to be a power within the Bill, but it would be wise to go just one furlong further and make it absolutely clear to the families we represent that simplicity is the order of the day when it comes to people’s rights to challenge decisions that—let us not forget this—will affect the life course of the young people we are dealing with.

Let me move on to a rather interesting—well, I hope so—and important matter. Having to admit to being a lawyer is not popular in this House, but words are important and if we change the meaning of something, once again the lawyers will jump all over it. In that spirit, let us consider amendment 39, which relates to the position of current case law, and the synthesis between health care provision, social care provision and education—a point that returns to the comments made by my hon. Friend the Member for Stroud (Neil Carmichael). The Government’s intention seems clear: they wish to replicate current case law when it comes to how local authorities judge their responsibility to make provision in that area. Clause 21 includes the words

“wholly or mainly for the purposes of education”,

and I share the concern that the words “wholly or mainly” set a different and higher threshold than is currently set out in case law. In the 1999 Bromley case, Lord Justice Sedley spoke about a case-by-case analysis of particular applications, rather than a general principle as seems to be suggested by the clause. We should therefore consider a spectrum or range of provision from purely medical to purely educational need. A large number of cases will fall inside that spectrum, bearing in mind the common and well-understood scenario that with a particular need often comes a co-morbid need—a special educational need will often be accompanied by a health need as well.

[Mr Stewart Jackson (Peterborough) (Con)]

I strongly support the points that my hon. Friend is making eloquently and with his normal charm, especially as they relate to particular groups. I speak from my experience of working with children who have Tourette’s. That is one of the most obvious examples of co-morbidities and, for want of a better expression, people fall through the cracks in current legislation and are often failed by educational or health provision. The amendment seeks to ameliorate that difficult situation.

[Mr Buckland]

I am extremely grateful to my hon. Friend, and I pay tribute to him for the work he does with a very challenging condition. A lot of people think Tourette’s syndrome is a funny thing, but for those who suffer from it, it is a challenging and difficult condition that is often misunderstood by members of the public. Perhaps I should pause for a moment and pay tribute to the families and carers who, day in, day out, have to put up with ill-informed and quite frankly abusive comments from members of the public who should know better, whether those parents are taking their child to use a disabled lavatory in a supermarket or going to the cinema and trying to enjoy a film with their child who may have a special need that means they make a lot of noise or have to move about. We still have a long way to go in society to achieve general understanding among a wider section of the public about what it is like to live with a child who has special needs. It is good that an increasing number of towns offer autism-friendly cinema screenings, for example, that allow people to sit in comfort on a Sunday afternoon without needing to have eyes in the back of their head or worrying about what somebody else will say about their child. I have parenthesised a little, but I am grateful to my hon. Friend for his intervention.

I was talking about “wholly or mainly” and the concern shared by many people that we could end up with a wholly artificial argument about a particular type of provision falling between two stools. Thankfully, it has been made clear on case authority that speech and language therapy would be an educational need, but as my hon. Friend the Member for Peterborough (Mr Jackson) said, in a number of examples there will be less clarity and an ugly argument could break out between the health service and the local authority about who is responsible for what.

[Alison Seabeck]

It has been interesting to listen to the hon. Gentleman and his expert comments. Does he accept that young people with disabilities often drift into having mental health problems at different levels, and that that group faces enormous problems? We know that there is often a lot of difficulty in the education and health services when deciding who should manage those young people.

[Mr Buckland]

That is absolutely correct, and I am grateful to the hon. Lady. Sadly, mental health issues are a co-morbidity that becomes prevalent if, for example, a condition such as autism is not identified at an early age. It is a tragedy that so many young people who have autism or Asperger’s-related conditions end up with a mental health problem because their condition is not diagnosed or has been misunderstood or in some cases mistreated. I pay tribute, however, to child and adolescent mental health services that do the job well, understand the needs of people with pre-existing conditions, and adapt their services accordingly. A visit to a CAMHS unit can be quite a regressive experience for a young person with autism, which is why adapting services around the child or young person is so important.

[Jesse Norman (Hereford and South Herefordshire) (Con)]

My hon. Friend makes a powerful case. Does he share my view that, as with the local offer, it is important to avoid confusion between two things—educational provision for local students and educational provision available in the local area? With some conditions, the local area simply might not be capable of providing the educational specialist provision that would be available from national providers.

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[Mr Buckland]

I am extremely grateful to my hon. Friend, who I know represents a wonderful special college in Hereford that does tremendous work, not just on a local basis but on a wider basis. He brings a different strand to some of our debates about the need to ensure that, where necessary, there will still be placements well out of the borough, county or district in which young people live. Colleges such as the one my hon. Friend admirably represents fulfil that need and gap and must be part of our provision.

[Jesse Norman]

rose—

[Stephen McPartland (Stevenage) (Con)]

rose—

[Mr Buckland]

I will give way one more time to my hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman) and then to the right hon. Member for Coatbridge, Chryston and Bellshill (Mr Clarke).

[Jesse Norman]

I am grateful to my hon. Friend for giving way again. He is right to say that the Royal National College for the Blind is an extraordinary institution, in part because it provides, through its own specialist skills, the kind of holistic understanding of how educational and health care needs can come together. That is one reason why it is such an extraordinary and special place and why it must be preserved amid all the other things the Bill seeks to achieve.

[Mr Buckland]

I cannot improve upon perfection.

[Mr Tom Clarke]

In arguing powerfully, as he is, for a holistic approach, including for education, does the hon. Gentleman accept that that can impact on the later lives of such young people, particularly with issues such as employment?

[Mr Buckland]

It is a pleasure to serve in the House with the right hon. Gentleman, who has a long and honourable track record of campaigning for young people and adults with disability. He understands very well from his experience that the repercussions of decisions made at that stage in life echo down the years. We mentioned mental health and employment prospects. Only one in four young people with autism get into employment. I believe we can improve on that shameful statistic. I know there is a will among Ministers, including the noble Lord Freud, to change that, which I believe we can do.

[Mr Graham Stuart]

Will my hon. Friend give way?

[Mr Buckland]

I will give way to my hon. Friend, the Chairman of the Education Committee.

[Mr Stuart]

I am extremely grateful to my hon. Friend, who makes a powerful speech. I wonder whether he is right to propose removing “wholly or mainly”, because the Bill would read:

“Health care provision or social care provision which is made…for the purposes of the education or training of a child”.

Such provision does not have to be made for that purpose to be significant to the education or training of a child. I put it to the Minister that a better wording would result in provision that is significant to the education or training of a child or young person being treated as special educational provision. It would capture that which is important to deliver the education a child needs. The original motivator is not the key point.

[Mr Buckland]

I do not claim a monopoly of wisdom on the precise wording, but it is important to go back to the case law—London Borough of Bromley v. the SEN tribunal in 1999, in which Lord Justice Sedley stated:

“Special educational provision is, in principle, whatever is called for by a child’s learning difficulty,”

which he goes on to define. He states:

“What is special about special educational provision is that it is additional to or different from ordinary educational provision”.

In that phrase, we have a more fundamental definition. Provision is not what is significant, but whatever is necessary. I am grateful to my hon. Friend for looking at that. My hon. Friend the Minister is listening carefully. Either in this House or in the other place, we need to achieve clarity and a replication of the words of the Lord Justice of Appeal, so that we do not end up moving away from the Government’s clearly stated intention.

[Jesse Norman]

Does my hon. Friend share my view that, to be effective and to respect that leading judgment, the idea of a local offer must include national providers? The judgment is not delimited by location; it merely says that provision should be whatever is necessary. A national provision is sometimes the correct option for a person with special needs.

[Mr Buckland]

My hon. Friend is right. Low-incidence special needs can be catered for only by specialist colleges such as the one he represents—another college in Loughborough offers wonderful provision on a national basis.

[Stephen McPartland]

Will my hon. Friend give way?

[Mr Buckland]

My hon. Friend has been very patient, so I shall let him intervene.

[Stephen McPartland]

I thank my hon. Friend very much for giving way. I am interested in the other end of the spectrum—pre-school children and the tension between education and health. In Stevenage, we have a nursery called Tracks, which provides education support for pre-school children with autism. The local education authority does not recognise that such children could have autism, so parents waste a year or two of normal school time while they persuade the authority that their child has autism.

[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.

[Mr Buckland]

I am extremely grateful to you, Madam Deputy Speaker. Your exhortation allows me to move on to the other amendments in my name, which I will deal with as expeditiously as I can.

Amendments 40 to 43 deal with young people over 18. The extension of legal protections for young people with SEN up to 25, which is at the heart of the Bill, is warmly welcome. However, the Bill states a number of times that local authorities “must have regard to” a young person’s age when making decisions on the support they receive after they are 18. We understand that the extension of provision to 25 does not create a blanket right to education for all young people with SEN, but we are concerned that the current drafting could give another get-out to local authorities, which could use the fact that a young person was over 18 to deny them support. Therefore, I suggest the removal of the phrase

“must have regard to his or her age”

to avoid that unintentional consequence.

Amendment 44 relates to the duty of health commissioners. As I have said, I welcome that extension, which is a significant improvement, and which breaks the problem of the silo effect on education and health care plans. However, in the amendment, I am asking whether the provision goes far enough. Clause 37(2)(d) places a duty on local authorities to include in the plans health provision that is “reasonably required” by a child or young person. With clever lawyers, arguments could arise over the meaning of “reasonably”. We should therefore delete that word.

Clause 37(2)(d) also states that health services that must be included in the EHC plan must be linked to the

“learning difficulties and disabilities which result in”

the special educational needs of

“the child or young person.”

In other words, the health provision must be linked to the specific impairment that has resulted in the child or young person being considered to have SEN. If the health need is not specifically linked, it does not need to be included. The danger is that limiting the requirement could result in confusion and, bluntly, injustice. For example, if a child with Down’s syndrome has a related heart condition, health provision needed to support their medical needs would need to be included in the EHC plan. However, if a child with Down’s syndrome has chronic asthma, which is unrelated to their Down’s and does not result in the SEN, there is no requirement to include the medical need in the plan. Such a distinction works against the Government’s intention to create a co-ordinated system. Once again, energy is being wasted on arguments about what is related to the special need. Let us try to cut the Gordian knot and deal with the issue in a straightforward way that does not create confusion and the potential for litigation.

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[Madam Deputy Speaker]

Order. Before the hon. Member for South Swindon (Mr Buckland) gets to his feet again I have to say that he has now been speaking for 32 minutes. Other Members wish to speak, so I hope he will draw his remarks to a conclusion soon—in the next 60 seconds—so we can move on to other contributions to this important debate.

[Mr Buckland]

I bear your strictures seriously, Madam Deputy Speaker.

I pray in aid remarks I have made in the past on the importance of the accountability of the local offer, and echo the comments made by the hon. Member for Washington and Sunderland West on clause 69. I urge my hon. Friend the Minister to redouble his efforts with the Ministry of Justice, so that clause 69 is expunged from the Bill when it returns to this House.

May I very briefly mention new clause 21, which is part of this group? It relates to the duty to ensure that there is inclusion for children and young people. That must not just be a comfortable word that we in this place all use—it has to mean something. In transforming local services, we must stop making an assumption, even for children and young people in special schools, that there will not be times when they will want to access mainstream services. I should add that a large number of children with special needs currently enjoy mainstream education with appropriate support. We need to underpin the spectrum of provision, whether in the form of education or other local provisions, which is why I commend new clause 21, which was tabled with my colleagues on the Joint Committee on Human Rights, the hon. Members for Aberavon (Dr Francis) and for Ealing, Southall (Mr Sharma).

I am grateful to you, Madam Deputy Speaker, for allowing me to address the House at some length. I apologise for that, but this is an important Bill. We have got to get it right.

[Mr Tom Clarke]

It is a pleasure to follow the hon. Member for South Swindon (Mr Buckland). For politicians these days, a few kind words go a long way. I congratulate him on his effective work on autism. The House will be pleased to hear that I do not intend to speak for long, as there is so much business today, but I wish to focus on amendments 46, 66, 67, 68 and 69. If I find myself on a different path, I am sure you will keep me in order, Madam Deputy Speaker.

I would like to pick up on comments made on both sides of the House. I thank sincerely my hon. Friend the Member for Washington and Sunderland West (Mrs Hodgson), who led for the Opposition. She rightly focused on education, which is vital in bringing out the talents and abilities of children, and recognised that these issues should, at every level—for education, certainly, but also employment, health matters and so on—be person-centred. My hon. Friend will agree when I say that disabled people are one of the groups that are the furthest away from the employment market, and education has an impact on that. Disabled people are twice as likely to be unemployed as their non-disabled peers. In 2012, the Office for Disability Issues estimated that 46% of working age disabled people are in employment, compared with 76% of working age non-disabled people. My hon. Friend and other hon. Members were absolutely right to focus on the big issues that have an impact on those with learning disabilities.

I am joint chair, with Lord Rix, of the all-party group on learning disability. We have achieved a great deal, but we still have much more to do. One of the key features of the Bill, for example, under clause 19 is the move to involve young people and children under the age of 16 in decisions about their special educational needs provision. Children and young people with special educational needs, particularly those with a learning disability, have trouble reading and understanding material unless it is fully effective, and that applies to Braille and other things.

Although localism is appropriate and schools should be judged on how well they are doing, there nevertheless ought to be standards that are accepted across the whole of the UK. I remind the House, as a Scottish Member, that although these matters have been devolved to the Scottish Parliament, the annual economic and fiscal settlement has to bear the Barnett formula in mind, so it is as appropriate to discuss these issues in England as it is in the devolved institutions.

It is essential that any information for, or consultation with, people with a learning disability is accessible and meaningful to ensure effective participation and involvement. Mencap has highlighted that this means using easy read formats for blind or partially sighted people. Organisations such as Scope point out that such necessities should not be a postcode lottery, as my hon. Friend the Member for Washington and Sunderland West also rightly said. This is the challenge before us. I am a little envious that I was not on the Committee, because I am sure that its considerations were thoughtful and progressive, and I congratulate it on its work.

I would like to conclude on this note. On the issues that we are dealing with—education, health, care and social matters—coming back to the child and the family is vital. Before I sit down, I shall give one example. A few years ago, I was invited to an exhibition in Glasgow organised by the National Autistic Society demonstrating some of the wonderful work in art and music that young people with autism were nevertheless able to produce. The VIPs opening the exhibition stood beside a particularly impressive painting, but as we listened to the speeches we were discouraged by the noise that one of the children was making, until we realised that this beautiful painting, which we had all admired, was painted by that young woman. That is the opportunity. We can do it. We can deliver for special educational needs. I hope that as the Bill progresses through both Houses, it will be seen as a major step in that noble direction.

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[Mr Timpson]

I hope that our differentiation is based simply on the semantics of some of the vocabulary that is being used, but clearly we need to have absolute clarity on the role of each agency in the life of a child, whether they are educated within the school sector or at home. I will write to my hon. Friend to ensure that he has chapter and verse on precisely that point.

I come now to amendments 60 and 6l. I understand from my hon. Friend that home educators are concerned that clause 23 will mean that local authorities will have to assess every home educated child to see if they have SEN, which takes us back to the previous Parliament, where we had many of these discussions. I can assure him that this is not the case. Clause 23 sets out which children and young people local authorities are responsible for under this part of the Bill. These will be children and young people who have already been identified by the authority or who have been brought to the authority’s attention as having, or possibly having, SEN. There is not that overarching forensic exercise of trying to locate each child.

Amendment 63 seeks to tie the definition of the suitability of any alternative arrangements that parents make for children with an EHC plan more closely to the definition of parents’ right to home educate as set out in section 7 of the Education Act 1996. However, this is unnecessary as the provision in the amendment is already contained within the phrase “suitable alternative arrangements”, so does not need to be spelled out in this way. Similarly, while I understand the concern that amendment 64 seeks to address, it is not necessary. Where a child has a plan that says that education provided in the home is the right provision for the child, the local authority could only cease the plan when it felt it was no longer necessary to meet the child’s needs, as set out in the legislation.

Where parents take a child out of school to home educate and are making suitable provision, as is the case now with statements, the local authority will be under a duty to review the plan annually to ensure that the provision that the parents are making continues to be suitable. The local authority could cease to maintain the plan only where it was decided it was no longer needed to meet the child’s needs. Moreover, the new duty on commissioning bodies to arrange the health provision in the plan and the greater expectation that the social care provision will be made will mean that parents can expect that these will continue to be provided. There is further scope within the code of practice to provide clarity on these issues for local authorities, and no doubt my hon. Friend will want, through his connections with the home education lobby, to contribute to that consultation, which will be happening later this year.

On amendments 40 to 43, I find myself completely agreeing once again with my hon. Friend the Member for South Swindon that some young people with special educational needs require more time to complete the education that other young people have already finished by the age of 18. The Bill rightly enables them to do so, but we want to avoid the expectation that every young person with SEN has an entitlement to education up to 25—a point that I think he accepted in Committee—regardless of whether they are ready to, or have already made, a successful transition into adult life. The Education Committee recommended that we clarify whether there is an entitlement to special education provision up to age 25. The requirement to have regard to age makes it clear that there is not. However, I can categorically assure my hon. Friend that no young person who needs an education, health and care plan to complete or consolidate their learning can be denied one just because they are over 18. Local authorities must rightly consider a range of matters in coming to these important decisions.

Clause 45(3) requires local authorities to consider whether the educational outcomes specified in the plan have been achieved when it is deciding whether it should cease to maintain a plan. The indicative code of practice, at section 6.18, says:

“local authorities must not simply cease to maintain plans once a young person reaches 18”.

They should consider whether young people have met their agreed outcomes, whether continued education will help them achieve those outcomes, and whether the young person wants to stay in education. Of course, in what we hope will be rare instances, a young person may appeal against a decision to cease their plan, a step forward from the current system.

My hon. Friend also tabled amendments 45 and 48. Securing a place at university is a positive outcome for any young person, and we are right to have high aspirations for children and young people with SEN and disabilities. However, it does not follow that higher education institutions must be part of this Bill. Local authorities are not responsible for the education of young people in higher education and it would be unreasonable to hold them accountable for securing special education provision while the young person is there. As my hon. Friend has already noted, the higher education sector has its own very successful system of support in the form of disabled students’ allowance. DSAs are not means-tested, are awarded in addition to the standard package of support and do not have to be repaid. We should not seek to duplicate or replace that system when it appears predominantly to be working well. In the academic year 2010-11, DSA provided 47,400 full-time students with support totalling £109.2 million. The Government also provided £13 million to HEIs in 2012-13 through the disability premium to help them recruit and support disabled students, and in 2013-14 that figure will rise to £15 million.

However, I agree that we must improve the transition to university. Draft regulations require that when a young person is within two years of leaving formal education a review of their EHC plan must set out plans for helping them make a successful transition to adulthood. We will make it clear in the code of practice that good transition planning includes sharing the EHC plan with the university, with the young person’s consent; ensuring that the young person is aware of DSA and has made an early application so that support is in place when their university course begins, on which the hon. Member for Washington and Sunderland West shared her experience with the Committee; and ensuring continuity of health and care services where those continue to be required by the young person. In addition, we will work with those conducting DSA assessments to ensure that they understand the EHC plans, as well as how they can assist and inform the assessment and ensure that details of DSA are included in the local offer so that all young people thinking of applying to university are aware of the support available to them.

Under proposals in the Care Bill, which is currently in Committee in the other place, 18-year-olds with eligible needs will receive a statutory care and support plan. The new legislation will ensure that there is no gap in provision as young people make the transition from children’s services to adult services and, when they move from one local authority area to another, that the new authority continues to meet their needs until it has undertaken its own assessment.

With regard to amendment 47, I agree with my hon. Friend the Member for South Swindon that all young offenders, including those with SEN, need to receive the right support and access to education, both in custody and when they return to their communities. Since our debate in Committee, I have considered the issue further and remain of the view that clause 69 is necessary, not because we are not committed to supporting young offenders, but because it prevents our legislation from coming into conflict with existing comprehensive statutory provisions governing how education support is delivered in custody, as set out in the Apprenticeship, Skills, Children and Learning Act 2009.

My hon. Friend the Member for South Swindon will know that the duties placed on local authorities by that legislation are currently fulfilled through the contracts held by the Education Funding Agency and that local authorities are often not involved. The Ministry of Justice, which funds that arrangement, is clear that the current system is not working, which is why it recently consulted on transformational reforms to how education and support in youth custody should be delivered in future. I have ensured that I have been kept in close contact with Justice Ministers so that the education element for children—not only those with SEN, but others in the care system and elsewhere—is being properly considered as part of the review.

[Mr Buckland]

Will my hon. Friend undertake to ensure that when the Bill goes to the other place a careful eye is kept on clause 69 and that the Ministry of Justice moves in a way that is properly co-ordinated so that we do not end up with the nightmare scenario of those young people simply falling through the gap?

[Mr Timpson]

I strongly share my hon. Friend’s view. I want to make progress on that, both in my Department and across Government. The commitment I gave him earlier will continue as the Bill moves on and other work is done by the Ministry of Justice on the consultation it has carried out, because it is important that we make as much progress on that as possible at an important stage of development in many of our institutions and within the secure estate.

Clause 69 also plays an important technical function by disapplying duties with the SEN clauses that it would be impractical to deliver while a young offender is in custody. For those reasons, I do not agree that we can simply remove the clause ahead of the significant reforms to education in custody that the Ministry of Justice is considering and the resulting changes that might need to be made to existing legislation. However, I have sought to reassure my hon. Friend the Member for South Swindon and hope that provides him with some confidence as we move forward.

Turning to amendments 71 and 72, tabled by the hon. Member for Washington and Sunderland West, we are continuing to strengthen our understanding of young people’s post-16 educational outcomes. The Department for Education will be publishing destination data on students with SEN at key stage 4 before the summer break, and later in the year for those at key stage 5. The Department for Business, Innovation and Skills already publishes data on participation and attainment in further education by students with SEN aged 19 and over, and that will continue. I do not think that it is necessary to place additional reporting requirements on the further education sector when those data are already being made public. However, as I have said previously, I am sure that she will continue to press that point as the Bill moves on to the other place.

On amendments 73 to 75, we will ensure that any code of practice laid before Parliament has been subject to proper consultation and that Parliament is given the opportunity to scrutinise new or updated versions. Clause 67(2) already ensures that the Secretary of State carries out sensible and proper consultation on the code of practice. We intend to publish a draft code of practice on the Department’s website for public consultation in the autumn of this year and to give ample time for comment, over and above the draft that we provided for the purposes of Committee. If we did not consult appropriately, there would be every reason for this House or the other place to resolve not to approve the code.

The Education Committee considered the careful balance between proper consultation and parliamentary scrutiny and keeping the SEN code of practice up to date during pre-legislative scrutiny. The Bill delivers on their recommendation that the draft should be subject to consultation and approved by Parliament using the negative resolution procedure. This brings the code into line with other statutory codes, such as the school admissions code, and enables an appropriate level of parliamentary scrutiny.

This debate has continued the good faith that has been a hallmark of the progress of this part of the Bill. Given what I have said, I hope that hon. Members will feel sufficiently assured not to press their amendments.

Question put and agreed to.

New clause 9 accordingly read a Second time, and added to the Bill.

New Clause 10

Childcare costs scheme: preparatory expenditure

‘The Commissioners for Her Majesty’s Revenue and Customs may incur expenditure in preparing for the introduction of a scheme for providing assistance in respect of the costs of childcare.’.—(Elizabeth Truss.)

Brought up, and read the First time.

--- Later in debate ---

[Mr Buckland]

I will be brief. I was accused of being a little less than brief earlier, but I mean what I say, and I think we have done an admirable job in scrutinising this Bill and that we send it to the other place in a very good state. There is still work to be done, and the Under-Secretary of State for Education, my hon. Friend the Member for Crewe and Nantwich (Mr Timpson) and I have had keen debates about the Bill over the past months. I was delighted to hear his remarks in response to my right hon. Friend the Member for Sutton and Cheam (Paul Burstow), who spoke on the young carers amendment tabled in my name together with those of other hon. Members, and to which the hon. Member for Worsley and Eccles South (Barbara Keeley) referred.

[Barbara Keeley]

The hon. Gentleman is generous in giving way as time is short. Does he agree it is important that young carers get a signal from the last few minutes of this debate that the importance of the work they do is recognised? He understands, as I do, that there was a feeling that those carers felt let down and ignored by the Bill.

[Mr Buckland]

I think the message came out loud and clear from the Under-Secretary that the needs of those people will not be forgotten or neglected, and that they will be enabled to play their part as mainstream members of society. That is what it is all about; it is not just box-ticking but about enabling those people to take their place in society and have all the advantages of their peers who do not have caring responsibilities.

I thank the Every Disabled Child Matters campaign and the Special Educational Consortium for the work done not only with Ministers but with me and other colleagues to marshal arguments in Committee and at this stage. Although those in the other place will still have work to do, there is no doubt that we have sent them a substantial body of evidence that this House of Commons is more than capable of doing justice and giving proper scrutiny to the most important Bill in a generation for those with special educational needs and young people who, through no fault of their own, face greater challenges than the rest of us in our society.