Childcare Bill [ Lords ] (Fourth sitting)

Sam Gyimah Excerpts

Thursday 10th December 2015 Public Bill Committees

Supplementary provision about regulations under sections 2 and 3

[The Parliamentary Under-Secretary of State for Education (Mr Sam Gyimah)]

I beg to move amendment 5, in clause 5, page 5, line 30, leave out subsection (4) and insert—

“(4) A statutory instrument containing (whether alone or with other provision) regulations mentioned in subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(5) The regulations referred to in subsection (4) are—

(a) the first regulations made under section 2;

(b) the first regulations made under section 3(1);

(c) any regulations under section 3(7);

(d) any other regulations that amend or repeal provision made by an Act.

(6) Any other statutory instrument containing regulations is subject to annulment in pursuance of a resolution of either House of Parliament.”

This amendment removes the provision which subjects all regulations made under clauses 2 and 3 of the Bill to the affirmative procedure on every occasion they are made. Regulations made under clauses 2 and 3(1) would instead be subject to the affirmative procedure the first time they are made, and the negative procedure thereafter

It is a pleasure to serve under your chairmanship once again, Mr Hanson. As currently drafted, clause 5 provides for all the regulations under clauses 2 and 3 of the Bill to be subject to the affirmative procedure every time the regulation-making power is exercised. That is as a result of an amendment made in the other place, and it provides a level of parliamentary scrutiny beyond the original intention behind the Bill.

We are in complete agreement with the intention behind the amendment made in the other place, and the Government welcome the opportunity for both Houses to have proper prior scrutiny before the regulations can be approved and added to the statute book. However, we do not believe it necessary or reasonable to make the regulations affirmative every time. That is why amendment 5 will allow the regulations to be debated the first time the powers are exercised, while subsequent changes will be subject to the negative resolution procedure.

The exception to that will be any instances where regulations seek to amend or repeal primary legislation, or in the case of regulations seeking to update the maximum level of any financial penalty set out on the face of the Bill. Any regulation made for those reasons will continue to be subject to the affirmative procedure and must be approved by Parliament each time the powers are exercised.

I will set out why we do not believe it necessary for the regulations to be subject to the affirmative procedure each time they are made. First, since we introduced the Bill over the summer, we have provided much more detail about how the Government intend to deliver their manifesto pledge and who will be eligible. That includes a recent policy statement and further details about eligibility as a result of the spending review announcement on 25 November. That additional information provides further clarity about what will be included in the regulations and addresses many of the concerns raised previously.

Secondly, we are committed to undertaking a formal public consultation on the draft regulations in 2016. Feedback from parents and providers will be taken into consideration as we develop the regulations, which will be revised as necessary in response to the consultation before they are laid before Parliament.

Thirdly, our proposal to make the regulations subject to the negative procedure reflects the precedent of parliamentary scrutiny adopted for comparable childcare and education legislation. We believe it is important to maintain the arrangements for approval used for the existing entitlement, which has been subject to the negative procedure since it was introduced in 2008.

The affirmative approval process requires the full involvement of both Houses and for time to be found for debates in both Houses, no matter how small the change. The Government being required to timetable a debate in both Houses when details need to be amended in regulations is likely to have a detrimental impact on the successful delivery of the new entitlement. We want the Secretary of State to be able to respond efficiently and effectively where it may be necessary to support local authorities, providers, parents and their children without seeking and receiving the approval of Parliament to do so.

Once the fundamental principles have been agreed, we do not believe it would be a good use of the parliamentary timetable to make changes that would ordinarily be dealt with under the negative resolution procedure. For example, consequential changes were made to the current entitlement to reflect the introduction of the education, health and social care plans and the replacement of residence orders with child arrangement orders. Those types of changes, which are straightforward and not controversial, can be made under the negative resolution procedure.

If the regulations under the Bill were to be subject to the affirmative resolution procedure, which would be the case without my amendment, the types of consequential changes that I am talking about could not be made unless time was found for a debate in both Houses. We do not believe that that would be an appropriate use of the parliamentary timetable. I hope that I can reassure the Committee further by confirming that the Department will continue to consult on any material changes to the regulations under the negative resolution procedure, as it has done with the current entitlement. By the time they are laid, the regulations will have undergone a vast amount of scrutiny. We are confident that we will deliver a set of regulations that fairly delivers on the Government’s manifesto pledge to support hard-working families.

[Pat Glass (North West Durham) (Lab)]

Their lordships included this clause because they were concerned about the lack of detail in the Bill in relation to funding, workforce capacity, physical capacity, eligibility, accessibility and other areas. They were concerned that there would not be full and frank debate in relation to all those areas and that the regulations would simply be laid before Parliament—slipped out under the cover of darkness, as I think they said. However, the Minister has given assurances on that on Tuesday and today. He is an honourable man. I do not intend to detain the Committee on this matter. The Minister has given assurances for the first time that the regulations will get full debate in both Houses, and the negative procedure is normal practice in other areas, so I am happy with that.

Amendment 5 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

Clauses 6 and 7 ordered to stand part of the Bill.

Clause 8

Commencement

Amendment made: 6, in clause 8, page 6, line 8, leave out from beginning to “come” in line 10 and insert—

“(1) The following provisions come into force on the day on which this Act is passed—

(a) section 2(4A);

(b) section 7;

(c) this section;

(d) section 9.

(2) The remaining provisions of this Act”.—(Mr Gyimah.)

This is consequential on amendment 3. HMRC’s power to carry out functions in connection with the making of determinations as to a child’s eligibility will come into force on Royal Assent.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9

Short title

[Mr Gyimah]

I beg to move amendment 7, in clause 9, page 6, line 19, leave out subsection (2).

This removes the provision which was inserted to avoid infringing the financial privileges of the Commons. Now that the money resolution has been passed this amendment can be removed.

This will be a very short speech. This technical amendment removes the privilege amendment made in the other place. As the Committee will be aware, this standard formula is incorporated in the Bill before it leaves the other place to avoid infringement of Commons financial privileges. A money resolution has now been passed conferring parliamentary approval of financial expenditure incurred as a result of the Bill, and the removal of the privilege amendment is a mere formality. I therefore hope that the Committee will accept the amendment.

Amendment 7 agreed to.

Clause 9, as amended, ordered to stand part of the Bill.

New Clause 2

Early years SEND co-ordinators

“(1) Relevant childcare providers of a size prescribed by Regulations must designate a member of staff at the setting (to be known as the “Early years SEND co-ordinator”) as having responsibility for co-ordinating the provision of childcare for children with special educational needs and/or a disability.

(2) Regulations may require relevant childcare settings to ensure that Early Years SEND co-ordinators have prescribed qualifications or prescribed experience or both.

(3) For the purpose of this section, relevant childcare providers are those funded to deliver early education or childcare provision free of charge under section 7(1) of the Childcare Act 2006 or section 2(1) of this Act.” —(Pat Glass.)

This amendment would require all early years providers of a certain size providing childcare under this Act to designate a member of staff to be the early years SEND co-ordinator, and to ensure that they are suitably experienced and/or qualified.

Brought up, and read the First time.

[Pat Glass]

I beg to move, That the clause be read a Second time.

--- Later in debate ---

The new clauses would ensure that local authorities were required to produce and maintain a childcare inclusion plan and strategy, and to have SENCOs who are suitably qualified to deliver. The three new clauses go together. The Minister has talked a lot about the current situation for disabled children and their families. We heard some awful examples when you were not here this morning, Mr Hanson, of what is currently happening to disabled children in the childcare sector—not everywhere, but in too many cases. As I have said to the Minister on numerous occasions, if we want to do something about it, these are the practical steps that we will need to take.

[Mr Gyimah]

The new clauses are about special educational needs in the early years setting. The hon. Lady must be congratulated on the ingenious and persistent way in which she has focused our attention throughout the scrutiny of the Bill on children with special educational needs and disabilities. I agree with her that that is the right thing to do as far as the Bill is concerned.

We have heard a lot in this debate about access to the free entitlement for children with special educational needs and disabilities. The hon. Lady’s amendments seek to propose that all childcare providers have access to suitably qualified SEND co-ordinators and to place a requirement on local authorities to produce and maintain a childcare inclusion plan. I agree with her that early identification of additional needs is extremely important. It is central to the SEND reforms, and it includes specific requirements in health to refer children who might have SEND to the local authority, recognising that in the early years, especially before age three, health visitors or GPs can pick up concerns before anyone else.

With that in mind, I reassure Members that we all want childcare that meets the needs of working parents and their children, including those with SEND. It is therefore the Government’s intention to ensure high-quality childcare that meets the needs of all children. We recognise that staff need to have the right skills and knowledge to deliver that care.

The Government continue to support the development of the early years sector with a broader self-improvement education system, to which I alluded during our discussion on an earlier amendment. We invested £5.3 million through our voluntary and community sector grant scheme in 2015-16, of which about £4 million was invested in early years projects to support SEND reform implementation. A number of those programmes deliver SEND training to the early years workforce. In particular, the National Day Nurseries Association’s current SEND champions grant has proved very popular among the workforce.

We have also provided £5 million to support partnerships between teaching schools and PVI providers, which have also enabled good practice in supporting children with SEND. For example, the Solent Teaching School Alliance is delivering support for PVIs that includes a focus on children with SEND. It is leading to improved identification of children and better tracking of their progress towards more aspirational targets.

Obviously, local authorities have a key role to play. As I mentioned, the Children and Families Act 2014 sets out how the needs of children with SEND must be met. As is set out in the code of practice, in order to fulfil their role in identifying and planning for the needs of children with SEND, local authorities should ensure that there is sufficient expertise and experience among local early years providers to support those children.

Local authorities often make use of area SENCOs to provide advice and guidance to early years providers on developing inclusive early learning environments. The area SENCO helps make the links between education, health and social care to facilitate appropriate early provision for children with SEND and their transition to compulsory schooling. A recent SEND reform implementation survey that received responses from 104 local authorities indicated that 78% already have an area SENCO that early years providers can access. We are confident that that number will continue to grow as the reforms are embedded.

I do not believe that the number of area SENCOs needs to be required, as set out in new clause 4. I believe that it would be more appropriate to consider how we can learn from local authorities with area SENCOs and encourage other areas to follow that example, building on the model of the local authorities from which we heard in our recent survey.

As we heard at Tuesday’s session, the early years market is diverse; it is made up mostly of small, single-site private, voluntary and independent institutions. It would be challenging to require every provider to have a suitably qualified member of staff, or a SENCO, as set out in the new clause.

As I have said, we require every provider delivering the early years foundation stage, regardless of their size, to have arrangements in place to support children with special educational needs and disabilities. Under the Children and Families Act, a maintained nursery must ensure that there is a qualified teacher designated as the SENCO in order to ensure the detailed implementation of support for children with SEND. In addition, the EYFS framework requires other early years providers to have arrangements in place for meeting children’s special educational needs. Those in group provision are expected to identify a SENCO. Childminders are encouraged to identify a person to act as SENCO, and childminders who are registered with a childminder agency or who are part of a network may wish to share that role between them.

I recognise that the new clause would allow the Government to set a prescribed size for a childcare provider that must have a SENCO, but I am concerned about the potential perverse incentives that it could create if we placed requirements on different sizes of providers. For example, it could create incentives for a provider not to take more than 49 children if at 50 children the regulations would become more burdensome.

SENCOs are already a valued part of the landscape, but we want to develop and test other innovative ways of meeting the needs of children with SEND, in particular through the early implementer areas, as I have said a number of times. We do not want to prejudge the learning that we will gain from the early implementers, and I hope that the Committee will understand why we do not want to close down other potential options by settling on a single solution now.

New clause 3 seeks to place a requirement on local authorities to produce and maintain a childcare inclusion plan. I recognise that the intention of the hon. Member for North West Durham is to assist disabled children to access a further 15 hours of free childcare under the Bill. As I have stated clearly in Committee, I agree that all families should have access to high-quality, flexible and affordable childcare. I also agree that parents with disabled children should have the same choice and access to high-quality childcare. We want our early years to be inclusive—for children to learn and play together—but I do not agree that the answer is to place a new duty on local authorities to produce and maintain a childcare inclusion plan that sets out a strategy for how disabled children and those with SEN will be assisted to access childcare under the Bill.

The Children and Families Act already requires local authorities to have a local offer, which includes information as to the special educational provision that a local authority expects to be made available to children in its area by relevant childcare providers, and information as to how those providers tailor the childcare on offer to meet the needs of children with SEN. In preparing their local offer, local authorities must consult with the children and young people with SEND and their families to find out what sort of support and services they need. To ensure that the local offer is made available to all, local authorities must publish their offer on the internet and ensure that those families without access to the internet can also see it. The local authority must also tell children and young people and their families how they can find out more about the local offer.

I hope that I have made it clear that I absolutely agree that all eligible children should have access.

[Jess Phillips (Birmingham, Yardley) (Lab)]

Speaking as quite a sharp-elbowed mum of children with SEN, I did not know that any of what the Minister read out existed, so it is clearly not working. My children have been through all sorts of different provision. Wanting this is a bit like Miss World wanting world peace. If the Government actually want it, why do we not do something about it?

[Mr Gyimah]

The Children and Families Act which came into force in 2014 was the biggest reform to SEND for 30 years. It is still being embedded in the system and that is precisely my point: we have made significant reforms, which are being embedded. I hope that what I am saying reassures Members. Rather than having another duty on SEND provision for local authorities, let us ensure that the reforms already passed on a cross-party basis become embedded and truly work for children, so that the parents, whether sharp-elbowed or not, may feel reassured that their children will get access to the childcare they need. I therefore hope that the shadow Minister will withdraw her new clauses.

[Pat Glass]

My hon. Friend the Member for Birmingham, Yardley is right. We have all recognised here that there is a problem. We are not going to change things unless we do something to change them. At the moment, the system simply is not working for parents. The Minister and I agree that the role of SENCOs is crucial. The SENCO in the school and the area SENCO have crucial roles. They are almost the translator between the child and their difficulties and the rest of the provision. They work in relation to access and admission, to the training of staff and getting access to trained staff, to inclusive practices and, more importantly, to provisions to the curriculum in schools and in childcare. The SENCO is the translator of the curriculum for those children who have difficulties.

[Mr Gyimah]

The hon. Lady is arguing that the role of the SENCO is not working—

[Pat Glass]

No, I am not saying that.

[The Chair]

Order. Continue, Minister.

[Mr Gyimah]

The hon. Lady is being critical of the system in place for area SENCOs. What gives her confidence that having SENCOs at the provider level would change anything?

[Pat Glass]

The Minister misunderstands what I am saying. I am saying that the system is not working for disabled children if they are not getting access. I am not criticising the role of SENCOs or area SENCOs. The confidence I have is because I have seen that the role is crucial and huge, not only in translating the curriculum and so on, but in supporting parents. SENCOs have a strong role in supporting parents.

The Minister said that 78% of local authorities have a plan. That means that 22%—that is more than a fifth—do not. I worry about the children living in those local authorities that do not have a plan. I take on board his point on perverse incentives. I would hate to see a situation in which childcare providers, particularly those that are good or outstanding, suddenly decided not to take more children because of a cut-off point. I understand that concern, but I am not sure that that is sufficient reason not to have a requirement in the Bill to ensure that there is at least someone who is suitably trained in a provision or someone who knows where to go to get help.

I have been at it quite a long time, and I remember taking over SEN in an authority where SEN was failing badly. I had absolutely no experience in that. I had worked in school improvement and other areas of education, and I was suddenly asked to take over SEN. SEN has always been and remains something of a secret garden in local authorities. It is the province of all those professionals, such as educational psychologists and clinical psychologists, and is not for people like me.

[Mr Gyimah]

The hon. Lady is making an eloquent case, as she has done throughout our scrutiny of the Bill and this issue. While we both agree on the problem we are trying to solve, if she thinks that an Act that came into force a year ago is not sufficient, why would another Act address the problem?

[Pat Glass]

If I can finish the point I was making, I took over SEN. I feel ashamed that I sat in meetings at that time—it was quite a long time ago—and said to parents things like, “Do you know what? Your child will be better in this special school”, when they were fighting to have their child in mainstream education. I went along to a conference somewhere—I cannot remember what conference it was—and there was a disability discrimination officer who had severe cerebral palsy. He got up on the stage, and it was almost a road to Damascus moment. He said something like, “People like you made me special by making me different”, and I can remember thinking, “Oh my God.”

I set off from there to find out about inclusion. We were right at the beginning of things. If a child fell off a step, they were placed in a special school. It was that bad in those days. No one was being included. I learned an awful lot of things along the way, such as that pushing children through the door and having them there is not the same as having them included. There is a great difference between having them there and having them welcomed and wanted. That is what inclusivity is. The point that, in a very long-winded way, I am trying to make to the Minister is that we have to start somewhere, and forcing something is the first step towards making the system much more inclusive.

[Mr Gyimah]

Once again, the hon. Lady makes a very strong point. Is she aware that, in addition to the requirement to publish a local offer for children with SEND, in the case of a provider that “requires improvement” or is “inadequate” the local authority must provide information and advice training specifically on meeting the needs of children with SEND? Given that that measure is in place, should we not make sure it works rather than putting more stuff into legislation?

[Pat Glass]

I take the Minister’s point, and I appreciate that his colleague introduced major reforms in this area a year ago. We want them to work, because they are long overdue. We want to move away from a system in which statements took forever to one in which there is much more co-ordination between health, education and social care. We want that to happen. I worry about the cuts to local authorities’ budgets, because they must be able to deliver this. I am aware of the local offer, but in too many local authorities it is not a proper offer to parents, but a list of what is available if they bother to ring around, so we are some way from what the Government want to realise.

[Mr Gyimah]

I would just like to draw the hon. Lady’s attention to the section in the EYFS that states:

“Each child must be assigned a key person…The key person must seek to engage and support parents and/or carers in guiding their child’s development at home. They should also help families engage with more specialist support if appropriate.”

Once again, does the hon. Lady think that what she is proposing will lead only to more law? There is enough law already to make what she wants happen.

[Pat Glass]

I am aware of that, but if the key person measures were working, children with disabilities would not be being refused admission to childcare providers. We know that the SENCO role works incredibly well, and I just want to build on what works. I understand that we need to embed the things that are in the SEN legislation. We want them to work. I am happy not to press the new clauses if the Minister agrees to monitor this area and revisit it if it does not improve.

--- Later in debate ---

[Mr Gyimah]

By way of reply to the hon. Lady’s concluding remarks, I assure her and the Committee that this will be a priority in the early implementers. We will also put in place an evaluation system to ensure we are learning the right lessons, not only from that but afterwards, to improve the system. I think the hon. Lady agrees that this is a practical, rather than a legal, problem. We have got to work with local authorities to ensure this works for parents, and I assure her that that is our priority.

[Pat Glass]

The Minister is absolutely right. The amendments that I tabled about disabled children do not require a legal response; they require funding to be put in to ensure that this is monitored and policed. Something must be done to make the changes that will have to happen, because the current situation is unacceptable. On that basis, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Question proposed, That the Chair do report the Bill, as amended, to the House.

[Mr Gyimah]

Thank you for your expert and expeditious chairmanship of our proceedings, Mr Hanson. I thank the officials, who are seen but not heard, and who have worked incredibly hard since the start of this Parliament to turn our manifesto pledge into a Bill and into reality for working parents. I thank my colleagues, who have been very supportive, and the Opposition for ensuring that we focused not on the party-political knockabout but on what we can do to help children and families.

A lot of points have been made. As the hon. Member for North West Durham said, not all of them require a legal response, but a lot of them require a practical response. I thank hon. Members for raising those issues, and I look forward to working with them over the next weeks and months to make this Bill work for parents.

[Pat Glass]

I, too, thank both Chairmen for their excellent chairmanship. I thank the Clerks and officials for supporting us. They supported me, in particular—I struggled a little, because this is my first Bill Committee. I thank my colleagues on both sides of the Committee. There was very little to disagree with in this Bill. It is a good Bill and we want to make it work for parents. I think I have made my point about disabled children.