(10 years, 6 months ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
The Deputy Chairman of Committees (Lord Colwyn) (Con)
My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn for 10 minutes.
Clause 51: Appeals
Amendment 181
Lord Storey
“(g) the social care provision specified in an EHC plan;(h) the healthcare provision specified in an EHC plan”
Lord Storey (LD)
I will be quite brief; I do not have all my papers together. I feel that all of us in this Room realise the importance of this piece of legislation. We are looking to support the work that has been going on. The needs of children with special educational needs are not purely educational, or purely to do with health or social care; a combination of provision might be needed. For the first time, as it says on the label, parents will be supported by this legislation and will not have to go through a great difficult bureaucratic system. Their children will have a plan that will clearly spell out their needs. I say again how much I appreciate the revised code of practice, which is excellent and shows clearly the steps that need to be taken.
If a parent wants to appeal against the fact that they have not succeeded in gaining a plan, or if there are aspects of the plan that they are not happy about, we should make it as easy as possible. As it says, this legislation concerns children and families; it is family-friendly and children-friendly. The notion that parents and the child or young person then have to go through a labyrinthine method to resolve issues seems to go against the grain of what we are trying to achieve. As the document says, we are supporting parents all the way through. When there is an appeal, the code of conduct rightly refers to arbitration and how it can be resolved. However, if you then have to take your “complaint” somewhere, you do not want to have to go to three different bodies. You want to be able to take it to one person or one body who can sort it out for you one way or another. That seems to be in the whole spirit of this legislation.
Without pre-empting what the Minister will say, I guess that he will point out that we are talking about very different animals here. Health people are very different from education people and local authorities. I understand that, and that it might cause problems in trying to have that single point of appeal. My preference is to have a single point of appeal so that parents know where they are going and for it to be included in the code of conduct. If that is not possible, is there any way for parents to be supported and guided through the difficult processes? We are all interested in the well-being of the parent and the child or young person. I beg to move.
Baroness Hughes of Stretford (Lab)
My Lords, I support Amendment 181, moved by the noble Lord, Lord Storey, to which I have added my name. I shall also speak to Amendments 182 and 272. To some extent, we are rehearsing today, in these amendments, some of the arguments that we had earlier this week about social care. They concern the fundamental question of how serious the Government are about instigating a new system that is integrated right through from the point of early identification, assessment, provision and appeal.
As the Bill stands, we have integrated assessment, at least in the EHC plans, but we do not have equal accountability in terms of integration of provision because of the social care situation. Here we do not have integration from the very important perspective of parents’ and children’s experience in relation to appeals. Therefore, I strongly support Amendment 181, which would add social care and healthcare provision specified in EHC plans to the First-tier Tribunal as a mechanism of appeal. I would be grateful if, in his reply, the Minister would go beyond what he has already said to us, which is that there are established routes of complaint about social care through local authority complaints procedures and the Local Government Ombudsman, and clear and specific routes of redress within the NHS, its complaints processes and the health ombudsman.
Anybody who has tried to help a family to negotiate those two avenues of appeal will know how complicated they are. In addition, it is very important that, in relation to the substance of the complaint—as opposed to maladministration—they do not end up with an independent adjudication between the views of the complainant and the views of the service provider. The parents in this case would have to, for example, fully exhaust the local authority’s own complaints procedures as a first step; that could take many months. Of course, that adjudication is not independent; it is the local authority adjudicating on the complaint. They can then go to the Local Government Ombudsman, but that person will adjudicate only on the principle of maladministration—that is, on whether the authority has not followed the proper procedure. He will obviously not adjudicate on the substance of the complaint. It is a similar situation in relation to health.
Therefore, if the parent has to negotiate those two systems, it can take a very long time. Many noble Lords will have had a number of pieces of correspondence from Jane Raca, who is a lawyer and author and has a 13 year-old, very disabled son. She outlines the detail of the Local Government Ombudsman procedure and shows that it takes months and sometimes years. I know from my previous constituency experience that that is the case and, furthermore, it does not actually judge independently on the substance of the complaint.
The other important point is the one made by the noble Lord, Lord Storey, that—by their nature, and this is very welcome—EHC plans are meant to integrate an assessment around social care, health and special educational needs. A severely disabled child is likely to have needs in all three categories, so a parent might have concerns or complaints about all three categories of need. Under the current arrangements, as the noble Lord, Lord Storey, said very clearly, they would be faced with the almost impossible task of appealing through three different systems at once, at the same time as coping with a very disabled child and probably other children in the family. That is just not reasonable. If we came at this through the vision of the parent contemplating that system, it would look impossible. It would defeat many of us, let alone parents coping with very disabled children. Therefore, I really hope that the Minister will take this on board and see this very important and welcome principle of integration right the way through from assessment to appeal.
Our Amendment 182 would oblige the Secretary of State to publish information about special educational needs cases going to the tribunal. We feel it is important to bring much needed transparency into the system and put an end to practices by some, though not all, local authorities, such as systematically taking cases to court, keeping the cost down in the knowledge that many families will not challenge a decision or spend any money on legal fees, in order to avoid having to pay for the provision in the first place—taking the step early of going to appeal, rather than trying to get a local resolution. Whatever the Government decide, it is important that we regularly review which kind of cases are going to the tribunal and their outcomes, and that we have this information published regularly.
Amendment 272 simply ensures that the detail of, and any change to, the provisions in Clause 51(4)—that is, the regulations laid to provide for appeals to the First-tier Tribunal—will be subject to an affirmative resolution procedure through statutory instrument. It is right that Parliament should be able to comment on the proposals for appeals that the Government put forward.
Lord Low of Dalston (CB)
My Lords, I support the amendment of the noble Lord, Lord Storey, to which the noble Baroness, Lady Hughes, has also just spoken. The general point must be right: there has to be a unified route of appeal. There is no way that parents can be expected to endure the hassle and aggravation of pursuing three separate appeals or complaints if they are not satisfied with the provision that they are receiving.
This would simply be to answer the bureaucratic hassle identified in the Green Paper and the Lamb inquiry as driving parents to distraction by adding yet more layers of bureaucracy. I assume that the Government have just been defeated by their own bureaucracy in delivering a unified route of appeal; maybe this will give them some insight into how parents feel. To that, I simply say that they need to go away and try a bit harder.
I mainly want to pursue a more detailed point. It is clear that the parent can appeal to the Special Educational Needs and Disability Tribunal, or SENDIST, about the educational provision. As for health, the local authority must include in the EHC plan, health provision reasonably required by the learning difficulty or disability that causes the special educational needs, and health commissioners must secure that provision. However, it appears that the health commissioner has a veto. The draft regulations say that the health commissioner must agree the health provision. This raises the question: what recourse has the parent if the local authority does not include the health provision in the plan or the health commissioner does not agree it?
If the health provision is directly related to and supports the educational provision—for example, speech and language therapy delivered at school—the parent can appeal to SENDIST. However, if it is purely health provision—for example, if it is delivered at home—what opportunity does a parent have? I ask the Minister: what opportunities do parents have to challenge its non-provision or non-inclusion in the plan? The Government may answer by referring to the NHS complaints procedure but, quite apart from the point that this involves the parent pursuing a second and separate challenge, I am not sure that a complaints procedure is really the most effective way of enforcing the provision of something to which they feel they are entitled.
Similar arguments might presumably be made in relation to social care provision, except that in that case the complaint would be a separate one against the local authority. I would be most grateful if the Minister could respond to these points when he comes to reply.
Baroness Wilkins (Lab)
My Lords, I add my strong support to Amendment 181. My noble friend Lady Hughes has just refereed to Jane Raca. Anyone who has read her book, Standing Up for James, will know that there is an urgent need to improve the current system of support for families with disabled children. However, the Government’s proposals for appeals risk creating an even more complex system than already exists, with different appeals or challenges having to be made simultaneously, as we have heard, about different parts of the EHC plan to different bodies.
In her book, Jane Raca recounts the situation of her local vicar’s family. The Tomlinsons have six children, including Edmund, who is 14 and severely autistic. Ed does not speak and has no sense of danger or of what is socially appropriate, He is very often awake at night, meaning that Matthew and Joanna, his parents, have very little sleep. Although Ed’s statement provides for him to attend a weekly boarding school for autistic children, he is at home every weekend and all school holidays. Despite that, his parents receive just 27 nights’ respite a year, which they try to eke out during the school holidays. They got that only when they broke down completely in front of their GP.
That is far too little support but, as Joanna Tomlinson says, she just did not have the strength to fight for what the family needed and for Ed’s needs to be looked at holistically. The Bill holds out hope for that. Joanna knew that her local authority would not have agreed to fund both the education and the social care provision, and that she would have had to fight to appeal on both fronts. The Bill will perpetuate that unless we accept these amendments. If we do not, parents will still have to face three different processes if they wish to challenge the content of EHC plans. I urge the Minister to accept this amendment.
Lord Touhig (Lab)
My Lords, I will just add a few words. This multilayered system of appeal is absolutely insane and crying out to be altered. In Wales, we have a word, “dwp”, which means stupid or daft in the head. If a Nobel prize were awarded for daft bits of red tape, this would get it. Surely the Government must see the common sense and logic of reducing this down to one system of appeal and stopping all the battles that people who have children with special educational needs or disabilities, or children who are autistic, must have to appeal a decision that they think is not just, right or in the interests of their child.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, this group of amendments concerns appeals and mediation. I thank noble Lords for their contributions. I begin with Amendment 181, tabled by the noble Lord, Lord Storey, the noble Baroness, Lady Hughes, and the noble Lord, Lord Low.
As the noble Lord, Lord Storey, said, noble Lords will know that the Bill is designed to bring education, health and social care together, for the first time, in a joint enterprise to commission and make appropriate provision for children and young people with special educational needs. The child or young person and their family will be at the centre of the new arrangements and have an enhanced role in deciding what is in the EHC plan. That will improve the experience of children, their parents and young people, and the Bill will give them a more active role in agreeing the provision that should be made and ensuring that it is made. This is the joined-up system that the Green Paper talked about creating. We believe—and certainly hope—that this will make the system less adversarial and mean that fewer people will want to appeal to the tribunal.
This improvement in parents’ experience of the system is being borne out in the pathfinders. For example, in Hartlepool, the new process of assessment is wholly transparent, with children, parents and young people fully involved at all stages and able to contribute to the content of the EHC plan alongside professionals. It also includes a simplified complaints and comments procedure to help parents and young people seek redress across all areas of the process locally, if it should become necessary. That is just the sort of innovative local arrangement that we want to see, improving the relationships between parents, young people and local authorities, and facilitating local resolution of disputes. However, it would be silly to deny that, despite the improvements the Bill will bring, there will continue to be people who are unhappy about the provision set out in EHC plans. I quite understand that for those among that cohort who want to complain about two or more elements in the EHC plan, it would seem simpler to be able to appeal to one place, the tribunal, so having the tribunal as a single point of redress initially sounds attractive. However, there are reasons why I think this would be the wrong course to take.
It would not be right to expand the tribunal’s remit to cover all health and social care provision set out in EHC plans. We have already debated at some length, when dealing with earlier clauses, why it would not be right to create an individually owed duty for the social care provision in a plan. That could lead to the marginalisation of other children in need under Section 17 of the Children Act and harmfully affect local authorities’ ability to make the necessary social care provision across all children in their areas. Extending the tribunal’s remit so that it could deal with social care appeals could potentially mirror that unwanted consequence even if there was not an individually owed duty. As the noble Baroness, Lady Hughes, said, we have rehearsed these arguments and I do not wish to go over them again, but I am sure that we will return to this issue on Report and I am very happy to discuss it further with noble Lords in the mean time.
I say that it would “potentially” mirror that unwanted consequence because including appeals about social care in the tribunal’s remit as the Bill is currently drafted would change the nature of the decisions the tribunal could take. Whereas the tribunal would be able to tell local authorities what special educational provision must be set out in a plan, without an individually owed social care duty the tribunal would be able to take judicial review-type decisions only about social care provision. That is, the tribunal would have jurisdiction to review only the local authority’s decision, with powers to quash and remit it for further consideration—consideration which might result in the local authority making the same decision.
Your Lordships may well be saying to yourselves, “There’s an individually owed duty in health under this Bill, so at least you should extend the tribunal’s remit to cover health”. However, that individually owed duty in health is a duty to make the health provision set out in a plan following clinical judgments taken in the light of the wider duties of clinical commissioning groups and the NHS to secure services to meet all the reasonable health needs of all children. Widening the tribunal’s remit to cover health would undermine these commissioning arrangements. It would establish unequal treatment of children with serious health needs by giving a privileged position to those with SEN. It would be difficult to justify children with SEN and health difficulties having stronger rights of redress than, say, children with cancer, neurological conditions, long-term conditions such as epilepsy or diabetes and mental health conditions who do not have SEN. To avoid creating these inequalities between children and young people, it would be better if the existing and well established routes of complaint in health and social care were used rather than the tribunal.
In social care, Section 26 of the Children Act 1989 provides the framework for the complaints procedure for those under 18 which local authorities must establish. In health, the relevant legislation prescribes that a responsible body must acknowledge the complaint within three days and they must offer the complainant the opportunity to discuss the timing and procedure for resolving the complaint. Once that has been agreed, the complaint must be investigated and, “as soon as possible” after completing the investigation, a written report must be sent to the complainant explaining how the complaint has been considered, the conclusions of the report and any remedial action which has been taken or is proposed to be taken. This procedure could cover both what provision is set out in a plan and complaints about delivery of the plan. Of course, it is vital that the parents of children with EHC plans and young people with plans, particularly the smaller group who want to complain about more than one area of the plan, know how to do so. The Bill makes provision for parents and young people to be given information about the routes of complaint that are open to them. Clause 26, headed “Joint commissioning arrangements”, requires local authorities and clinical commissioning groups to work together to offer joined-up advice, information and responses to families and to establish a clear complaints procedure relating to education, health and care provision. The outcome of that work will be available through the local offer.
The new code of practice will require that impartial information, advice and support should be commissioned through joint arrangements and should be available through a single point of access with the capacity to handle initial phone, electronic or face-to-face inquiries. It will also encourage clinical commissioning groups to ensure that relevant information is available at this single point of access as well as to include information on their local health offer on their own website. A one-stop shop will be simpler and much more parent and young person-friendly than potentially having to go to more than one place for advice on a range of issues, including how to complain.
My noble friend Lord Storey made the point that the system may be confusing. I reassure him that we are looking carefully at the best ways of achieving a single point of access to address this, and I would be happy to discuss this further with noble Lords. We share noble Lords’ concern to ensure that parents can find their way to the right route of redress easily.
Amendment 182 was tabled by the noble Baronesses, Lady Hughes and Lady Jones. When this amendment was debated in another place, it was pointed out that some of the information requested by it is already published by the Ministry of Justice on its website, including the number of appeals registered against each local authority. We are happy to explore with the Ministry of Justice the idea of jointly publishing data on the SEND tribunal and, as part of this work, whether the information could be expanded.
However, some of the information that is being asked for by this amendment, such as the amount local authorities spend on defending each case, would just increase contention in the system rather than reduce it. Highlighting how much money was spent on legal representation could create real tension between parents and local authorities. We know, anecdotally, that each party often says that they engaged legal representation only because the other side did. If this amendment is designed to highlight poor practice by local authorities and to provide a basis for improving it, I believe the Bill already provides other avenues for doing so. Children, parents and young people will be able to highlight what they feel is inadequate provision through their role in the local offer. Local authorities will be jointly commissioning services with clinical commissioning groups to make sure that the right provision is available. The Bill is promoting better assessment arrangements, which, as I say, will mean that fewer parents and young people will want to appeal to the tribunal and the mediation will offer the chance to resolve differences before appeals are registered. In view of what I have said, I urge the noble Baronesses not to move the amendment.
Amendment 272, tabled by the noble Baronesses, Lady Hughes and Lady Jones, relates to a recommendation from the Delegated Powers and Regulatory Reform Committee. I reassure noble Lords who may be concerned that we have preserved the grounds for appeal and extended them to young people over compulsory school age. The appeal regulations set out clearly and in one place for the first time the mechanics for notices related to appeals, the powers the tribunal has when deciding appeals, time limits for compliance with tribunal decisions and what happens with unopposed appeals. We are currently consulting on these regulations and will take account of responses when we finalise them. They will be laid in the House for approval by negative procedure.
The Delegated Powers and Regulatory Reform Committee recommended that the tribunal’s powers when deciding appeals should be in the Bill rather than in secondary legislation and asked for an explanation of why this approach is being taken. Alternatively, it suggested that the regulations should be subject to the affirmative procedure, as Amendment 272 seeks. We have put the tribunal’s powers in regulations to make them simpler for the reader of this legislation. Instead of having the tribunal’s powers to determine appeals scattered over the legislation, as they are in the Education Act 1996, we want to bring them together in one place, along with the mechanics for how we expect an appeal to proceed. Given that this is what we are seeking to achieve by these regulations, I believe that the negative resolution procedure is proportionate.
Government Amendments 183 and 184, regarding mediation, are in this group. It is important that the whole of the mediation process set out in the Bill is seen by parents and young people to be independent of the local authorities. There are two stages to the mediation process. First, the parents or young people contact a mediation adviser to be given information about the mediation process. Currently, the Bill makes clear that the mediation adviser cannot be someone who is employed by a local authority. If the parent or young person decides to go to mediation, the local authority must arrange it within 30 days. Currently there is no parallel provision in the Bill to make clear that the person who conducts the mediation must also be independent of the local authority. These amendments make the necessary changes to the Bill to ensure that mediators will be independent.
I hope that my response on all the issues that noble Lords have raised reassures them and that they will feel able not to move their amendments.
Baroness Morris of Yardley (Lab)
I listened very carefully to the Minister. I think we will all want to read his comments in Hansard because it was quite a technical response, although I appreciate that that was absolutely necessary. I have a query about the phrase “single point of access”, which I would not mind him expanding on.
A lot was said about the difficulties of parents in accessing more than one tribunal. That is right. Has the Minister reflected on the message it gives to those people we are asking to integrate a service? A lot of people doubt that that can happen and will not take the Government seriously on this. If you really want to change the culture of three separate public services, you must not give them an excuse not to make the change. Throughout the discussion of this Bill, we have said that it is not about passing a law but about changing the culture. Having such a pivotal part of the whole procedure still split into three separate parts is actually saying, “At the end of day, we could not do it. We wanted to integrate, but when it got to the tough bit, the bit about the appeal, we, the Government, could not do it”. The naysayers will say, “There you are. We told you it couldn’t be done”. I know it is not the Minister’s intention, but what will happen is that that will ripple down the system, and people will say there that there is another inconsistency in what the Government say and that they say one thing and then do a different thing. The bit of the process that is the Government’s responsibility is the appeal. If we cannot change government culture and get it integrated, we are undermining genuine attempts by the Government to change the culture further along the channel.
I was not clear about what the Minister said. He gave two responses. One was, “I really think this amendment is right, but I do not think it can be done”, and the other was, “I do not think this amendment is necessary”. I was not sure which side he came down on. It is important that we know that between now and Report because that will give those people who feel strongly about this an indication of where the campaigning needs to be done.
I end on this single point of access. I wonder whether the Minister was actually saying that he has a compromise that he might suggest on Report around something called a single point of access. I am sorry for the long intervention, but what we can expect on Report in terms of a direction of travel is important so that people who have put a lot of work into preparing these amendments will be able to marshal their arguments.
Baroness Perry of Southwark (Con)
I have a great deal of sympathy with what the noble Baroness said. It is true that the excitement of the Bill is in the bringing together of these three services, but the noble Baroness’s argument has not answered the Minister’s point about giving priority to SEN children over children who are very sick with cancer or other diseases. It is inherent in the system that that problem will remain. We cannot, just by will, say that bringing them all together will somehow stop there being a different route for SEN children from that for other children, and that point has to be answered.
Lord Nash
The noble Baroness, Lady Morris, makes her point powerfully and well. I entirely agree with her about the necessity of changing the culture and that in some cases we may be dancing on the head of a pin and what matters is the practicality at the coal face. We need to make sure that we attempt to do this practically and fairly so that we do not unreasonably advantage one group of children over another, as my noble friend Lady Perry said. We will try to ensure that, with further dialogue between now and Report, we all understand where we are on this.
Lord Low of Dalston
I did not quite follow the point that the noble Baroness, Lady Perry, made when she talked about the danger of privileging children with special educational needs over other children. The fact is that we have a separate system that children with special educational needs can get into, and if they do not have them they cannot do so. However, for those who can get into the system it is surely right that it is the best possible system that we can make it and is immune from criticism on the sort of grounds that have been advanced this afternoon regarding the need for a single point of redress.
Lord Storey
I very much welcome each contribution on this amendment and thank the Minister for his response. I want to reflect carefully on what he has said. I agree with the noble Baroness, Lady Perry, that we would have to consider carefully any suggestion of inequality or people being treated differently. As always, the noble Baroness, Lady Morris, puts her finger on the issue. Those of us who have worked in education know that the culture of social services and health services—please do not take offence—is often different from that of education services, and friction and difficulties can often occur.
When I was researching this topic, I was thinking, “Yeah, come on; it makes sense to have one single point of appeal, doesn’t it? Who could argue against that?”. But then people say to me, “Oh no, because, because, because”. I would want to test that a little more thoroughly. It would have been interesting if the Government had put it the other way around and said, “We want you to make this work. Never mind your different cultures; we want one point of appeal. Go away and do it”. When they come back with the work we would then see whether it was possible. I really want to interrogate this issue because it surely makes sense.
Finally, I thank the Minister and welcome his comments on Amendments 183 and 184. I beg leave to withdraw the amendment.
“(b) the authority must—(i) arrange for mediation between it and the parent or young person,(ii) ensure that the mediation is conducted by an independent person, and(iii) participate in the mediation.”
“( ) For the purposes of subsections (6)(b)(ii) and (8), a person who is employed by a local authority in England is not independent.”
Baroness Greengross
Baroness Greengross (CB)
My Lords, the purpose of my amendment is to specify the territorial limits to where councils are expected to fund arrangements. I declare an interest as a vice-president of the Local Government Association. Protecting children and helping to provide for their future is, I am sure we all agree, one of the most important things that councils do. I therefore wholeheartedly welcome most of the provisions in the Bill, but I am concerned about certain measures in Clause 58 that would enable local authorities to arrange special educational provision for a young person with an EHC plan outside England and Wales. This clause enables local authorities to make provision in an institution that specialises in providing for special educational needs and gives them power to pay for or contribute to the costs of the child or young person who attends such an institution, which might, quite rightly, include travelling and accommodation costs for someone to accompany the child or young person.
This clause gives local authorities the power—not a duty—to make this provision, but demands on resources at the moment, as we all know, make it difficult to envisage the circumstances when local authorities would realistically be able to arrange special educational provision outside the UK. I am concerned that, without the extent of this clause being specified, local authorities might be expected to arrange provision in countries outside the United Kingdom. It might well be in the United States, for example, or in the Middle East, and this would be extremely expensive for a local authority to provide. It would certainly raise expectations that the local authority would do so. Parents may take cases to appeal if my amendment is not accepted. The amendment would provide for special educational needs provision to be arranged elsewhere in the United Kingdom, but not in other countries. I think this is reasonable, and I beg to move.
Earl Attlee (Con)
My Lords, I am grateful to the noble Baroness, Lady Greengross, for moving her amendment, although initially I thought it did not have the effect that she desired. Children and young people should be placed in the right setting to meet their needs. It is right that if the appropriate setting is in either Scotland or Northern Ireland, local authorities should have the power to place children and young people there and meet or contribute to the costs of the placement. The Bill as drafted would allow for such placements.
In line with what the noble Baroness said, Clause 58 is drafted in the way it is, mentioning England and Wales in particular, because the Bill covers England and Wales. Clause 58 allows local authorities to place children and young people with EHC plans anywhere else in the world, including Scotland and Northern Ireland, and to meet or contribute to the costs of the placement. I acknowledge the noble Baroness’s point about the costs, but they can still do it. There are a very few cases where children have been placed outside the UK. Unfortunately, the effect of the noble Baroness’ amendment would be that local authorities would still be able to place children and young people in schools or colleges in Scotland and Northern Ireland but they would not be able to pay or contribute towards the costs.
On the noble Baroness’s aim of specifying the limits of what local authorities are expected to provide, she is right to seek to clarify the extent of local authorities’ responsibilities for arranging provision outside the UK. As she said, this is a power, not a duty. It replicates the current arrangement and does not place a demand on local authorities. I hope, with that explanation, the noble Baroness will feel able to withdraw her amendment in due course.
Baroness Eaton (Con)
I found it interesting that the Minister said that very few people use the opportunity to be placed abroad. If it is on the face of the Bill to this extent, it might become more attractive to want to go further afield. It might become a fashion to seek support from other countries, where sometimes we hear of innovative things that are not necessarily proven. I would be seriously concerned—knowing that local authorities could potentially have huge black holes in years to come—about how on earth this will be funded. Even if it involves only a few children, it will be a sizeable bill. When local authorities are in danger of going bankrupt in some places, it is inappropriate to impose an open-ended commitment on them. I realise that it is an option—it is not something that is being forced on local authorities—but it will cause huge issues when people are refused the opportunity if they wish for it.
Earl Attlee
I think it would be helpful if I reminded the Committee that provisions in the Bill do not change any arrangements. If it is found to be cost-effective to send a child overseas as part of the EHC plan, no doubt that will be done. However, as the noble Baroness explained, that will be an extremely expensive option and therefore will be most unusual.
Baroness Howe of Idlicote (CB)
My Lords, I must say I find this extremely confusing. I share the concern that the result of it all may be that the opposite happens: that is, that there is rather more demand for this activity once it looks as if this sort of arrangement could be made almost around the world. Do noble Lords think that it might be more sensible to devote a little more time to this issue and perhaps have a meeting with the experts so that the right wording is put into the Bill? I do not know whether others feel as I do, but this is a bit confusing.
Earl Attlee
My Lords, I am always delighted to have meetings with noble Lords and I am sure that my noble friend Lady Northover would be delighted to have a meeting on this and perhaps look into it in a bit more detail.
Baroness Greengross
I thank the Minister for his reply and thank noble Lords who supported the measure and understood what I was trying to say about raising expectations and clever lawyers appealing decisions, which might lead to very difficult situations for local authorities. I share the view that local authorities should do their very best to obtain the correct provision, certainly as regards Scotland. The amendment would make it much simpler to envisage Scotland being part of this. I would be happy to meet the Minister and colleagues who feel as I do. The matter just needs clarifying and limiting. In current circumstances, I should not like to see a local authority being almost put on trial for something that, realistically, it is not expected to be able to do, much as it might wish to. I thank the noble Earl for his reply.
Earl Attlee
My Lords, as I said, I would be delighted to have a meeting. However, it may help the Committee if I point out that this is a provision in the 1996 Act, so we do not think that it will increase demand from this point.
Baroness Greengross
I thank the Minister, but I would still like to take up the offer of a meeting. On that basis, I beg leave to withdraw the amendment.
Lord Addington
“(g) apprenticeship training providers.”
Lord Addington (LD)
My Lords, I draw my attention and that of the Committee to the subject of apprenticeships and dyslexia and special educational needs generally. In doing so, I return to a subject which I feel I have imposed on Members of this House rather too often over the past few years. Although I suspect that one or two noble Lords present will have heard everything about it, most have heard some of it and some have heard most, so I apologise for going over the ground again. However, it all goes back to the 2009 Act, brought in by the previous Government, and the principle that people should be able to pass a qualification in English and maths. At the time, I said that that requirement would make things extremely difficult for those in the dyslexic spectrum, and received a degree of assurance that it would not be used as a barrier.
I then said, “Oh, that’s done” and forgot about it. Just over a year later, I received the first of a series of communications from Lynn McCann about her son David, who had passed all the components of a carpentry course, except for the English requirement because he was dyslexic. The normal way of getting through an exam if you have a problem with dyslexia is—we touched on this earlier with my assistive technology amendment—to dictate the exam to someone. It is nice and simple; it is easy for a person to programme. This cannot be done for this qualification for the simple reason that you have to pass it yourself.
The logic behind it seemed quite overwhelming at the time. The big employers had said that they wanted people who were good at certain things, such as basic skills in English and maths. When you think about that for a few seconds it starts to fall apart because employers also want people who do not get sick, who do not have children who get sick and who do not ask for pay rises. These are all attractive things to employers.
So far, we have a situation where people cannot take the exam. When I first raised this—it was more than three years ago so I apologise for the brief history lesson—I was told, “Let’s go and meet the Minister”. The Minister said, “That’s ridiculous, let’s sort it out”. I then went to my first big meeting, where I was told that there was a problem, and then to another meeting where I was told that the legislation states that the candidate has to pass the exam, we cannot do anything about it and assistive technology cannot be used because it is a test of their skills. I have since discovered that that is rubbish. It can be done and the main area of concern is apparently the formatting of the exam; that is, the way that it is written down in the computer language is not compatible with assistive technology. Therefore, it does not read it back properly and the types of communication get into trouble.
In the course of this debate I may hear that this has changed. If I hear that it has all changed, is all wonderful and tomorrow we can go away and forget about this, nobody will be quicker out of the door than me. However, I suspect that that will not be the case. We ask ourselves: why is this important? I have heard some pretty dreadful things from officials in this case. One which I played for a laugh last time—I do not think I will do it again—was somebody who said, “Well, nobody’s complained about it so it can’t be a big problem”. I said, “You mean nobody has written to you or sent you a long e-mail”. It is good; it still works. At the time, his face went through an interesting change of colour as he realised what he had said. Before that, I had heard that nobody would lose their job. To go back to David McCann, no, he would not lose his job because he works for his father. I suggest that changing his job without this qualification is like stamping “NEET” across his forehead and sending him out there.
I realise that I have done the classic thing that everyone with dyslexia, or on any disability spectrum, does and used myself as too much of an example. Many dyslexics might get by with support, even taking a written, or in this case a keyboard-based, examination. However, my Amendments 190 and 194 suggest that support should be provided for apprenticeships within the college structure. At the moment, there is not much teaching done by qualified teachers, and there is no desire or embracement. As the noble Baroness, Lady Morris, said, the culture for providing assistance is not there. The amendment makes it explicit.
Amendment 192A makes it explicit that the technical support should be included. I am sorry to jump around a bit—we dyslexics do that—but the argument against technical support is an interesting one. I have subsequently heard that to reformat and include it would be against the security of the examination. You would think this was so serious that a nuclear launch code was intrinsic to this English assessment exam. A dyslexic who could memorise and do the exact test for this examination is not a dyslexic. Spellings cannot be restored and sequential thought in the areas of the brain that handle language do not work well enough for that. So that is one group who could not cheat at this, and I suspect that there are a few others who could not do the English language test either. The maths test is also a problem, especially as I have it on good authority that anyone who uses strange language to describe the information and, if it is written down, does not understand the words, cannot work with it.
All I am saying is that for apprenticeships, a system for saying that you have acquired a practical skill should be accessible to those who have disabilities. I started with dyslexia, but I discovered that that is not the only group affected. The Alliance for Inclusive Education, known as ALLFIE, a group that I do not always agree with, says that it has found similar problems for those with learning disabilities. We have a system that is not sensitive to special educational needs. To include these amendments would start to encourage it to become so.
We are in Grand Committee. I regard this as the first round in the end game. I have been going on at Members of this House for far too long on this matter. I should not have had to in the first place. I accept that the cock-up school of history has got in there somewhere. I do not think that anyone seriously intended this to happen. But we should surely take the opportunity in this Bill to change it. To go back to the first meeting I had when an official told me that it was in the legislation, my reply was, “We change legislation in Parliament, don’t we? We do it all the time”. I did not think I would have to wait this long and I thought it was a stalling action at the time. Can we have some final action?
If I am offered a meeting, may I draw on another fact? The British Dyslexia Association has had a series of 60 meetings on this. I have come to the conclusion that the lead negotiator, the person who has taken on the role of saint and poor bloody infantry in this, one Sue Flohr, probably has a secret admirer in one of the departments who wants to keep on meeting her. If you have had 60 meetings, something is very wrong. With one you accept that there is a problem but two means you have not come up with an answer. I suggest that somebody somewhere has to start making sure that a practical change is made. This has gone on for too long and has affected too many people, and I have not even gone on about all those who have failed. Lots of people have failed; what has happened to them? There may be a case for that later in the Bill. Something has to happen.
I leave with one example. The British Dyslexia Association has a series of examples through its helpline. You have to be pretty lucky or desperate to find your way to the helpline of that small charity on this subject. A girl called Sophie was doing a visual merchandising apprenticeship. I will not go into the details, but her college basically said, “You ain’t going to pass, so we ain’t entering you”. That is the worst condemnation of this situation that I have come across: “You ain’t going to pass, so we're not interested”. I suggest that colleges are probably getting wise to the fact that if you are dyslexic you will have a problem, but “We ain’t going to take you” is only one step away from that background knowledge. To go back to the culture and experience raised by the noble Baroness, Lady Morris, we must do something that makes this explicit now. It must be something that has an end game attached to it. I beg to move.
Baroness Walmsley (LD)
My Lords, I wholeheartedly support the passionate plea of my noble friend. I do not believe that, when the Labour Government brought in the original Bill, their intention was to totally exclude young people with dyslexia from the possibility of ever completing an apprenticeship. I do not believe that it is the intention of this Government either. I accept that it may be a little tricky to sort this out and that this is probably the first legislative opportunity to change the legislation that inadvertently produced this situation, so we must make use of it.
I am very proud of this Government’s record on apprenticeships but they must not exclude talented young people who are able to get through all the practical side of the apprenticeship, often with flying colours, and show tremendous commitment, hard work, conscientiousness and all those qualities that we are looking for, but simply need a little help with written material. That help, once given, will enable them not just to get through the exam but to move on into a career. If we can sort this out, it will also send a message to employers that says, “There are a lot of talented people here who have gone through their apprenticeships with a little bit of help and they will prove to be very worthwhile employees to you if you take them on, post-apprenticeship, as long as you give them a little help”. I think that many local authorities can help employers to do that. What is the alternative? As my noble friend said, they end up with “NEET” on their foreheads. That is what we do not want. It causes the young people and their families a great deal of distress and, in the end, there can be long-term costs to young people from not being in employment, education or training.
These young people have a chance and we must make sure that they get it. It is soul-destroying when they start the apprenticeship, get through all the rest of it, and then find that they cannot complete it and get that important certificate because they cannot complete the written part. We really have to sort this out and we have to do it now.
Baroness Butler-Sloss (CB)
My Lords, several members of my family have varying degrees of dyslexia. All are able and intelligent, and have talents. My daughter-in-law, who has moderate dyslexia, has an excellent degree from the University of Bristol. It can be done but these people must have extra. That group of young people who want apprenticeships will be a loss to the country if they cannot get through the necessary exams. It is a major advantage for the country to make sure that they get through. The noble Lord, Lord Addington, and the noble Baroness, Lady Walmsley, have put this case extremely well. It is a relatively simple matter and I endorse the excellent work done by this Government in many respects, particularly on apprenticeships, but we should not leave out this important group. The funny thing about this is that it is often not properly appreciated that an enormous number of young people are dyslexic. Let us get out there, find them, help them and make them really useful members of society—without, as the noble Baroness, Lady Walmsley, said, “NEET” across their foreheads.
Lord Ramsbotham (CB)
My Lords, my amendment is very short and applies to many other aspects of this part of the Bill, particularly anything connected with assessment and further work, which, as my amendment states, should happen as soon as possible. I tabled it because I was disappointed that although this clause has, “Using best endeavours” in its title, there was no reference to a sense of urgency. Urgency is needed, as has been vividly explained by the noble Lord, Lord Addington, because people who have been identified with a possible SEN must be given the opportunity of developing as soon as possible so that their valuable time is not wasted. That is the purpose of my amendment.
Baroness Howe of Idlicote
My Lords, I very much support this group of amendments and we have heard passionate speeches about this whole area. Autism and other such problems that individuals face are issues of which people are increasingly aware. Above all, it is vital that we support the noble Lord, Lord Addington, and the noble Baroness, Lady Walmsley, in what they have said. We will be creating more valuable qualified members of the community and making a life for people who have had much less of a life in the past.
If we take the point just made by my noble friend, there are many more people who have dyslexia or one of these forms of problem. We just do not know how many there may be, but I would not mind betting that if you asked everybody in this Room, there would be a lot of people who have relatives with addictions of one form or another, dyslexia, autism or whatever. I hope we can give enormous support to this. I see the noble Lord has more amendments later, and I think they need our support as well.
The Countess of Mar (CB)
My Lords, I, too, support the noble Lord, Lord Addington. The noble and learned Baroness, Lady Butler-Sloss, hit the nail on the head when she said that she has relatives who have been to university and got degrees, with assistance, because they are dyspraxic. My granddaughter has dyspraxia. She is at the University of Lincoln at the moment and doing very well. She is getting “ones” right across the board because she is given extra time to do her written work. That has been accepted. Why do we not do it with apprenticeships? It seems ridiculous that we are putting these kids on the scrapheap. We criticise young people for not going out to work, and when they try to get qualifications, we fail them. To fail is disillusioning for these youngsters. They will not want to go to work if they think nobody wants them. The noble Lord, Lord Addington, and the noble Baroness, Lady Walmsley, have a very valid point.
Baroness Wilkins
I support this group of amendments. I am mildly dyslexic, and I assure noble Lords that in terms of daily frustration, it is a million times more frustrating than being in a wheelchair. There is a great deal of support for being in a wheelchair, but there is very little support for being dyslexic. The Government are to be admired for their commitment to apprenticeships, and it seems a tragedy that it should be undermined in this way, so I beg the Minister to accept these amendments.
Lord Low of Dalston
My Lords, the noble Lord, Lord Addington, has had a pretty good run for his money and has got not only unanimous but very voluble support from the other Members of the Committee. I would not detract from that one whit. I support every word he said and what others have added, but I wonder whether I may crave the Committee’s indulgence to make a slight change of subject.
I shall speak to Amendment 192 in this group, which is tabled in my name and the names of the noble Lord, Lord Touhig, and the noble Baroness, Lady Sharp. It is a probing amendment which would require schools to retain the current system of school action and school action plus. We may not have formulated the amendment perfectly, and I am sure there is room for plenty of discussion about how it might be focused or targeted more precisely. I am anxious to learn more about the Government’s thinking in seeking to abolish the current stages of school action and school action plus. As we know, the Government are replacing that graduated approach with a single SEN category. The amendment refers to schools, but my concerns also relate to how early years settings and post-16 institutions will meet the needs of children and young people with SEN.
My reason for tabling this amendment is that, like the Government, I believe that policy should be developed on the basis of robust evidence. Changing the way the SEN system operates in every English school and early years setting could be very disruptive. We need to be sure that any change will genuinely improve outcomes for children and young people before we embark on what is quite a major change. From what we have heard so far, it seems that the Government’s intention here is to improve the identification of special educational needs. The Ofsted report, A Statement is not Enough, published in 2010, suggested that some children and young people were being wrongly identified as having special educational needs.
Improving the identification of special educational needs is a goal everyone would support. However, my understanding is that the Ofsted report did not in any way indicate that the problem resided in the graduated approach of school action and school action plus. The same is true of the Lamb inquiry, which also picked up on the issue of identification, but did not indicate in any of its 51 recommendations that the problem arose from school action and school action plus. Neither of these important investigations proposed the removal of the current system, so I wonder on what evidence the Government are basing their decision to move to a single category of SEN. Everyone has been encouraged by the reference in the recently published draft code of practice to “a graduated response”. Since the Government remain committed to a graduated response, which is provided by school action and school action plus, one wonders why they are so insistent on the need for this change.
I should also like to pick up on the fact that the draft code of practice removes guidance on the use of individual education plans. IEPs were a key feature of the school action and school action plus system. They set out educational targets, the agreed SEN support and how progress would be measured. They require schools to involve children, young people and their parents in the process and are vital for parents when holding schools to account. When used properly, IEPs are a simple and effective way of recording targets, putting support in place and tracking the child’s progress. While they might not always be used as effectively as they might be, would it not be better to seek to improve the way IEPs are used than to scrap them altogether?
The Government are not opposed to schools retaining these types of records. The draft code says that schools should keep records and that these can be shared with parents. Again, therefore, one is prompted to ask why the Government are getting rid of something so valued by parents when they continue to support the principles behind it. I would be extremely grateful if, when he responds to the debate, the Minister could set out the Government’s thinking and give us the rationale for these changes and, in particular, the evidence on which they are based. It seems that the Government still support the principles of a graduated approach and keeping good records, so it is important that we understand why we need what is really quite a major change.
Baroness Perry of Southwark
I have no wish to continue this debate for too long. I first declare the interest that I, too, have a very dyslexic granddaughter. The fact that so many of us are able to point to younger family members with dyslexia marks how much better diagnoses have got in the past 20 or 30 years. Previously, people were very often thought to be rather stupid, so the diagnosis has greatly improved things. We have come a very long way in providing good diagnoses and excellent treatment at school level. Dyslexic boys and girls get a tremendous amount of help in school: they get more time for their examinations, technological help and so on. In the university world, there is enormous help: large numbers of dyslexic young people taking final examinations get special help, extra time and all that is necessary. It seems absurdly wrong that, at a time when we have expanded apprenticeships—and like the noble Baroness, Lady Walmsley, I am immensely proud of what this Government have done about apprenticeships—we have left this lacuna in the middle of the provisions. Schools do well and universities do well, yet when it comes to apprenticeships we have this absurd drafting of legislation—probably a slip of the pen—which makes it impossible for dyslexics, and people who have other handicaps to do with writing and speaking, to get through. I hope that the Minister will not just say that it is all okay and that nothing needs to be done. I really believe that something could so easily be done in this legislation now, and this is a good opportunity to do it.
Lord Touhig
My Lords, no one in this Grand Committee could doubt that the noble Lord, Lord Addington, has won the argument. He has been passionate and powerful; it is simple, common sense and perfectly logical. I say to the Minister: be bold. He should set aside the brief that his officials have given him and say that he simply agrees with the noble Lord, Lord Addington. I promise that the sky will not fall in, and the Government will not continue to be in the position of defending the indefensible.
I will now say a few words in support of Amendment 192. Clause 62 refers to using the best endeavours to secure special educational provision, and Amendment 192 would reinsert the graduated response. The key is ensuring that children get the support that they need to access the curriculum, whether this is through a single category or a more graduated response. The system that we are losing is popular and is understood and trusted by parents and educators. It ensures that children and young people get the support that they need. As I understand it, the draft code of practice replaces school action and school action plus with a single SEN, the SEN support. As I understand the Government’s argument, they see the creation of a single SEN category as a way of improving the identification of SEN youngsters. If we accept that, will the Minister explain how this will improve the educational outcomes for children and young people with SEN?
The Government’s preferred route will be hugely disruptive, with teachers and SENCOs being diverted from their core role of providing high-quality education. I echo the words of the noble Lord, Lord Low of Dalston, and want to see clear evidence that this will improve outcomes for children. If there is no evidence, why do this?
Baroness Sharp of Guildford (LD)
My Lords, I also support the noble Lord, Lord Low, in Amendment 192. While the new draft code of practice certainly indicates that the responsibility is for schools to individualise the provision that they make for those with special educational needs, the old categories of school action and school action plus were nevertheless useful in identifying and putting down some precise markers in this graduated response.
It is perhaps useful to quote the old SEN code of practice on what school action plus was:
“At School Action Plus external support services, both those provided by the LEA and by outside agencies, will usually see the child, in school if that is appropriate and practicable, so that they can advise teachers on new IEPs with fresh targets and accompanying strategies, provide more specialist assessments that can inform planning and the measurement of a pupil’s progress, give advice on the use of new or specialist strategies or materials, and in some cases provide support for particular activities”.
There is particular concern about the readiness of SENCOs within schools to take on the role of the outside specialist. Schools can still pull in and employ outside specialists, but the number of specialists available through local authorities has been much decreased because of pressure on local authorities, and so it is not always possible for them to access this outside speciality these days.
If we look at the pathfinder results, there were frequent references to the need for further workforce development and support for the cultural change that the noble Baroness, Lady Morris, referred to. That highlights the fact that there needs to be support for teachers. Appropriate support is vital. Training for teachers is vital, too, but training also takes resources, not least because when teachers go on training courses they need somebody to replace them in the school. I ask the Minister to look favourably on this amendment, which makes a lot of sense.
Lord Storey
I want to make a few points on both these amendments. I do not particularly like award ceremonies, but if there was one, the award for the most persistent Lord—the “dog fighting for a bone” award—would have to go to the noble Lord, Lord Addington. No sooner had I become a Lord than he was on at me about how important this matter is. From time to time, we should applaud each other’s efforts. I very much applaud his efforts on this.
The point made by the noble Baroness, Lady Perry, about the support that universities and schools give was important. I know that we do not particularly like giving anecdotal tales, but I will give one. A close friend of mine has a daughter who has mild cerebral palsy. She is dyslexic and dyspraxic. The support that she had at school was amazing. She went on to the University of Leeds, where she was given a scribe to help her work and so forth. When she had difficulty in her first year, the university let her repeat the year. She repeated a term and has now passed and—guess what—she is doing a master’s degree. If we can give that support in higher education and schools, we should give it for apprentices as well.
Baroness Sharp of Guildford
I would just like to point out that the support given in further education colleges, which provide much of the off-the-job training for apprentices, is also considerable. They also provide scribes and so forth. The problem is the accreditation procedures that are required for apprenticeships. It is a very narrow issue and it is quite absurd that we have not been able to solve it.
Lord Storey
I thank my noble friend for that.
I now turn to the graduated approach. We have come a long way in special educational needs, have we not? Schools must have SENCOs and a written policy. That is all to be applauded. The code of conduct clearly says that there has to be a qualified teacher working at the school, and that a newly appointed SENCO must be a qualified teacher and have the appropriate qualifications. Of course, we have SENCOs in schools who do not have those qualifications and we may need at some stage to visit that issue. The SENCO is important. You can have all the policies in the world but the SENCO makes them happen.
When we were talking about this—and I have experience of school action, school action plus and IEPs—I was quite alarmed. I said, “Man the barricades”. But the code of practice is a realistic response. It is clear in all sorts of ways. It states, on initial identification:
“As part of a graduated approach to tackling need … reviews of progress should be held once a term”.
Maybe that “should” should be “must”. It continues by stating that,
“there should be a plan that focuses on what outcomes are expected and the support that the school, college and any relevant agencies will provide”.
I applaud the document and I am more relaxed about the issue.
I say to the noble Lord, Lord Low, that I thought that IEPs were a real step forward, but my experience of them is that in many cases, sadly, they have become paper-writing exercises and increase the bureaucracy. What is needed is a much more focused and realistic approach, which is why I like the fact that the code states that the teacher has to meet the parents once a term and discuss the progress that has been made, presumably outside the normal parents’ evening.
I am slightly relaxed about the concern about school action and school action plus. What is in a name? It is not about a name. It is about an approach, an ethos, a culture and a doing mentality. I am sure that the progress we are making on that will help towards it.
Baroness Howarth of Breckland (CB)
We could talk about both these amendments all night. I just want to say two sentences. First, I agree with the noble Lord, Lord Storey. It is not about the name but about what will happen in the process on the ground in relation to that amendment. Returning to the noble Lord, Lord Addington, I agree with the noble Baroness, Lady Sharp. We need to focus on the very narrow issue of ensuring that this process can be taken forward. Quite frankly, the Labour Government should have got this into their apprenticeship legislation when they brought it forward in the previous Parliament. If the Minister cannot do what the noble Lord suggests, I hope he will take this away, look at it and come back on Report. That is the simplest way, and it is achievable.
Lord Low of Dalston
I entirely agree with the noble Lord, Lord Storey, and the noble Baroness, Lady Howarth, about the name. It is not the name that is important. What is important is that we have a graduated approach and that we have some way of institutionalising that so that there can be no doubt that that is the system being operated.
Earl Attlee
My Lords, I am grateful to all noble Lords who have spoken in this debate. Turning to the suggestion made by the noble Lord, Lord Touhig, I am a new kid in this school, but I intend to survive the next reshuffle, whenever that may be.
The amendments in this group all seek in different ways to amend Clause 62, which puts a duty on appropriate authorities to use their best endeavours to secure special educational provision. It is clearly a very important issue.
In answer to my noble friend Lord Addington, I have not heard too much from him, and I doubt I ever will. I suffered from mild dyslexia when I was young, as did my father. I struggled with maths and English, but in engineering workshop theory and practice, I got a grade 1 assessment and O-level, whereas in maths I got 9 double-minus.
On Amendment 192, the noble Lords, Lord Low and Lord Touhig, along with my noble friend Lady Sharp are absolutely correct to emphasise that schools should match the support that they provide to the child’s needs. This is known in practice as a graduated approach, and we are going to keep it. I agree with my noble friend Lord Storey and the noble Baroness, Lady Howarth, that it is not so much the name that matters but the approach.
The new SEN code of practice replaces school action and school action plus with a simplified approach to SEN support. This focuses attention on the individual needs of the child, requires schools to review how effective their support is and involves parents much more closely. This is exactly the sort of graduated approach that I believe the noble Lord, Lord Low, and other noble Lords are calling for.
The noble Lord, Lord Low, in effect asked for evidence of the need for change. We are making these changes because, as Ofsted’s 2010 review of SEN found,
“current systems focus too much on whether pupils receive additional services, and too little on the impact of their support”.
In the other place, my honourable friend the Minister for Children and Families made a commitment that, while developing the code, we would refine these proposals through work with a broad range of experts. Since then, officials within the Department for Education have met academics, school leaders, members of the Special Educational Consortium and more than 300 SENCOs. We are extremely grateful to all those who gave their time. As a result, I believe that the current code provides a much clearer framework for schools, informed by those working directly with pupils.
Baroness Howarth of Breckland
The Minister lost me for a moment. I am trying to follow him carefully but if we have such good practice as the noble Earl is describing, and all this is now possible, why can we not simply accept the amendment and move on?
Baroness Walmsley
I may have misheard my noble friend but when he gave a list of all the different kinds of exams for which these assisted technologies are available, I do not recall hearing him mention apprenticeships.
Lord Addington
My Lords, perhaps I may clarify the situation. It is the functional skills test and, before it, the key skills tests that are the problem. There has always been a much better attitude towards GCSEs, A-levels and degrees. I should draw noble Lords’ attention to my interest as chairman of a firm that provides some of the kit for the DSA, which for a dyslexic is voice-operated technology—the stuff that I use that was initially provided by the House of Lords authorities. So there is an establishment. The problem is with this one set of exams, which are crucial to getting this qualification, in which the dyslexics—who are 10% of the population in this country and 20% in America—should be overrepresented. Even if this would be appropriate for only half those dyslexics, that would still represent a hell of a lot of people.
Earl Attlee
My Lords, I have already said that I am not entirely satisfied and have some sympathy with the points made by my noble friend Lord Addington. However, I have not finished my speech and have not reached the point about apprentices.
I return to what we have achieved already. Personally, I was not aware that such welcome advances have been made. I hope I have convinced my noble friend Lord Addington that there is not a legislative gap in relation to such technology, and that there is good progress and continued willingness to work together to eliminate the practical and technical issues that remain.
Amendments 190 and 194 taken together would require apprenticeship providers to use their best endeavours to secure support for SEN. I recognise the concern of my noble friends Lord Addington, Lady Sharp and Lady Walmsley that young people with SEN may need additional support during their apprenticeship. I should like to make it clear that young people with EHC plans are able to attain their plans during their apprenticeship with all the support that they set out. Where a local authority has agreed with a young person who has an EHC plan that an apprenticeship is the best option, arrangements to support them should be built in at the point at which the place is commissioned. For example, if the local authority commissions a place from a private apprenticeship provider, the terms of that contract should include any SEN provision required. If that is not possible, the local authority should not place them there.
Baroness Sharp of Guildford
I apologise for interrupting the Minister and thank him for giving way. This particular problem does not apply to the training processes as such; it applies only to the passing of a particular group of tests known as the functional literacy and mathematical skills tests. It is a narrow problem, and one that my noble friend Lord Addington has identified and kept banging away on for a very long time. It should not be impossible for help to be provided during those tests. At the moment, those who have dyslexia are not allowed to have someone act as a reader to them for the tests. That is narrowly the problem.
Earl Attlee
My Lords, I am grateful for the noble Baroness’s comments. I was asked about support for apprenticeships. We amended the Bill following pre-legislative scrutiny to ensure that young people on an apprenticeship could receive support through an EHC plan. This puts people in apprenticeships on the same footing as those in further education.
Baroness Butler-Sloss
I apologise for interrupting the Minister yet again, but we are dealing with an extremely limited point. It is not support during the apprenticeship that we are talking about; it is support to complete the apprenticeship. That is not there at the moment; there is a gap and that is where the problem is. I am not sure that the Minister—with so many of us in this Room—has quite understood the particular problem about which we are concerned and which the noble Lord, Lord Addington, has so very well set out.
Earl Attlee
My Lords, when I have finished my speech, the best thing all of us can do is to read Hansard carefully, but I am not deaf to your Lordships’ concerns. On the other hand, I am not an expert on them either. The noble Lord, Lord Addington, and the noble Baroness, Lady Howarth, suggested that apprenticeships are not covered by the Joint Council for Qualifications’ guidance. As a point of clarity, the JCQ includes functional skills in its guidance. I or my noble friend Lady Northover would be happy to meet noble Lords to follow up on this.
In addition, the Equality Act 2010 applies to all apprenticeship training providers and employers. They are required to make reasonable adjustments for disabled young people during their apprenticeships. We will promote the availability of reasonable adjustments in apprenticeships more widely, including through the National Apprenticeship Service. We are also currently considering how we can improve data collection to monitor how effectively we are supporting young people with SEN and disabilities in apprenticeships.
More widely, Clause 27 states that a local authority is under a general duty to keep the special education provision in its area under review and consider the extent to which that provision is sufficient to meet the needs of young people concerned. In doing so, it must consult proprietors of post-16 institutions, which would include private training and apprenticeship providers.
Given these existing duties, the additional measures in the amendment are unnecessary. In addition, they risk having a negative impact on apprenticeship providers, including small businesses. There are currently 100,000 employers in more than 160,000 workplaces offering apprenticeships. Most employers use a training provider to help deliver the apprenticeships, and the majority of providers are private organisations.
My noble friend Lord Addington asked me about the requirement to achieve English and maths qualifications to be removed from apprenticeship completion conditions.
Lord Addington
My Lords, I did not ask for that: I asked for there to be assisted technology. I have conveyed all the information to everyone in this Room by talking into a microphone that is attached to my computer, which is technology that is now two decades old. This can be done cheaply and efficiently. There is just no argument about that. Voice-to-text technology is well established and used everywhere else. If you use a computer as your primary form of communication, it is cheap and available. It is easy to train. I do not know how many dozen people do so but everyone you have talked about can use that technology. This is not about removing qualifications but proving that your communication skills can be established.
I have just reached the point where I need glasses because my arms got a little too short. They are of technical assistance and may well be more expensive than the software that I am talking about. It is a ridiculous thing to say: the technology merely allows you to access things in a different way.
Earl Attlee
My Lords, I understand how passionate my noble friend is about the use of technology. I am not opposing it. I applaud the development of these technologies. But if we were to introduce an additional duty, it would increase the regulatory burden on many hundreds of private businesses, which goes directly against the considerable efforts of the Government to reduce red tape for businesses. Finally, good practice guidance from the 16 Diversity in Apprenticeship pilots is now available on the National Apprenticeship Service website. The Government commissioned an independent report on creating an inclusive apprenticeship offer, and their response, the apprenticeships action plan for learners with learning difficulties and/or disabilities, is currently being implemented. Action includes: use of the Equality Act definition of “disabled” for the apprenticeship offer, employers being able to signal willingness to recruit more disabled apprentices on apprenticeship vacancies online using the “two ticks” scheme, which guarantees disabled applicants an interview if they meet the basic requirements for the role; and work to improve the reporting of data.
The National Apprenticeship Service is offering additional one-to-one support for young people who have been unable to secure an apprenticeship due to competition for a place. The DWP is working with the Joint Apprenticeship Unit to promote additional support, such as access to work payments.
Ministers are not deaf. We have listened to what noble Lords have said in Committee. We will look very carefully and consider what steps we need to take to meet the concerns of noble Lords. Primarily, we will have further meetings outside the Committee to look at this further but I suggest that government officials and noble Lords carefully read Hansard to see where we are. I hope that noble Lords will not press their amendments at the appropriate points.
Baroness Walmsley
My Lords, I have a quick word to say before my noble friend withdraws the amendment. The Minister has obviously been given a very long brief by officials but I can probably say that the Committee is not bamboozled by it. I do not think that that was the intention and I have been reassured by hearing about how much support can be given to young people with dyslexia as they go through their apprenticeships. But the point that my noble friend is making is that all this is to no avail if they cannot get that piece of paper at the end of the course. The fact is that without some technical help with their written English to enable them to express what they have learnt, those young people cannot get that piece of paper, and that means they cannot move on. It really is as narrow as that. All that good stuff that the Minister has been talking about is welcome but does not cover getting the piece of paper—in other words, passing the functional skills test. That is the problem. There have been lots of meetings but no progress has been made. I appeal to my noble friend to have further meetings with those of us who are concerned about this, if that is what is needed, but something has to be done. This issue is much narrower than what is in the vast majority of my noble friend’s briefing.
Lord Addington
My Lords, to give the noble Earl, Lord Attlee, a rugby analogy—good players catch bad balls and take the tackle. The noble Earl has been tackled, stood on and everything else—it has all happened—but I congratulate him on being man enough to stand up to it in the first place. The subtext that I take from the response is, “Oh, it can happen but it does not”. I am afraid that that is not good enough; it is more of the same with regard to what I have already spoken about. Technical assistance is provided in the Access to Work programme; it is not just a question of DSAs. The thinking appears to be that we help dyslexics by providing them with a government grant from another department to enable them to go to work but we do not let them take a qualification. We provide that metal box with those little gadgets on the side of it to allow someone to function after they have obtained a qualification, but not before. The point about English and maths just does not stand up for anybody who requires minor assistance, and never did. I will, of course, withdraw the amendment but I do not want to come back in two or three years’ time, or wait for another Bill, to correct the position. I do not think that anybody’s interest, including that of the Minister, would be served by going through this again.
Lord Low of Dalston
My Lords, just before the noble Lord withdraws the amendment and sits down, I would say to the Minister, on behalf of the Committee, that, as was said in relation to Amendment 192, it is not the form of words that matters, it is the outcome. As regards this amendment, I think what the Committee is saying to the Minister is that it is not the meeting that matters, it is the outcome.
Lord Addington
I thank the noble Lord, Lord Low, and say to him that the grouping of these two very important amendments did him no favours. I would have commented further on that matter if I had felt there was time to do so. I think that we have gone as far as we can today but we must have an end game soon. I beg leave to withdraw the amendment.
Lord Addington
“( ) The appropriate authority must designate a member of staff who shall be a qualified teacher and must have undertaken training to include a mandatory module on special educational needs, including specific learning difficulties at the school (to be known as the “SEN co-ordinator”) as having responsibility for co-ordinating the provision for pupils with special educational needs.”
Lord Addington
My Lords, I shall endeavour to be quicker on this issue, which concerns the training of those who deal with pupils with disabilities, or hidden disabilities, such as dyslexia. I apologise to the Committee for having rather overdone the “misspelling mafia” scenario in the past few minutes. Unless a teacher is trained to deal with pupils with very different learning patterns, he or she will not be able to teach them well. That is the underlying philosophy running through these two amendments.
A great deal of work has been done. Indeed, under the previous Government, a lot of the foundation stones for this approach were put down, and we had Rose and Lamb looking at this issue. If teachers do not know how to spot why somebody is failing to learn, or is learning in a different and slower way, they cannot give the appropriate assistance. Why is dyslexia mentioned here? It is the most frequently occurring condition. It may not be the biggest educational problem, but—the noble Lord, Lord Ramsbotham, is not in the Room—with certain aspects of speech and language, I will bet that there is a high degree of comorbidity.
If we are dealing with something this important, then we have got to make sure that a degree of training is instilled in those people who have got to deal with it on a day-to-day basis. The people who will start to notice that somebody is working differently will also be able to go to that person and say, “This is why you are not learning quickly”. One of the most standard conversations in dyslexia is this: a parent comes in and says, “My child needs help” and it is then discovered that the parent is also dyslexic but has manfully struggled through without assistance. We have got to try to get the identification going properly. One, help the child; two, enable them to open up and access assistance so that the coping strategies that we have just discussed can be put in place.
When it comes to making sure SENCOs get better training, it is a no-brainer. If the administrative structure of a SENCO is fine and everybody teaching is fine, they should also know what they are talking about. Dyslexia is the most common but there are other conditions out there. I am merely saying that this is where we are coming from but that we are not the whole story. Please will the Government give me an idea about what they are going to do to make sure that there is better training and awareness among teaching staff so that those with these needs can get into the school population and open themselves up to receive the help that is there? We end up doing it slowly, later on and then encountering problems, as we indicated just a few minutes ago. I hope that my noble friend has something positive to say on this. This is very much a probing amendment, so how are the Government thinking about getting better awareness and training about this particular problem, and special educational needs generally, into the teaching profession and particularly, those in charge of it? I beg to move.
Baroness Walmsley
My Lords, I support my noble friend in these two amendments. Amendment 195 seeks to put what sort of qualifications a SENCO should have in the Bill, because currently it just says:
“The appropriate authority must designate a member of staff at the school (to be known as the “SEN co-ordinator”)”.
Clause 63(3) says that regulations may,
“require appropriate authorities ... to ensure that SEN co-ordinators have prescribed qualifications or prescribed experience”.
Looking at the draft SENCO code of practice, I was reassured to see that it says on page 78 that governing bodies,
“must ensure that there is a qualified teacher designated as Special Educational Needs (SEN) co-ordinator (SENCO) for the school. The SENCO must be a qualified teacher working at the school”.
Newly qualified SENCOs,
“must achieve the National Award in Special Educational Needs Coordination within 3 years of appointment”.
That is very reassuring, but what I do not understand is why that cannot go in the Bill. That is what my noble friend is looking for in Amendment 195.
Amendment 196 goes further and suggests that all teachers in their initial teacher training should have some proper training in how to identify special educational needs. The fact is that all teachers know that they are teachers of SEN because in every class there are children with special needs. It is crucial that every teacher has some idea of how to spot that and make sure that the appropriate, additional and more specialist skills and provision are made for them if the teacher cannot give it themselves. There is something in these two amendments which requires a little more reassurance and explanation from the Minister.
Lord Storey
My very first Oral Question was on dyslexia. I have raised the issue on a number of occasions and the Government’s response has always been positive in the sense that they say they have made more money available to universities for courses that they run. It seems very simple and yet very important, first, to ensure that all teachers—not just some—have an understanding of special educational needs and how to identify problems. To have early intervention, you have to be able to identify the problem, otherwise it does not work. Where a classroom teacher sees an issue, they need to be able to understand it and then refer it to the SENCO. The best way of doing that is through training our teachers. It is almost a no-brainer: it is very simple and easy to do and lots of universities and training institutions currently do it. If some do it, why can all not do it?
The second issue, as has been pointed out, is something that we have already put in the code of conduct, where it is very clearly spelled out. We must congratulate the Government on taking the next step and saying that not only should SENCOs be qualified teachers but that, furthermore, newly appointed SENCOs should have the relevant qualification. That is very important—it was not mandatory before and now it is. They are the people who can then deal with all the other issues we have talked about. I would take it a step further and say that existing SENCOs, who are not newly appointed to the SENCO role but may have been in post for several years, should also have to obtain this qualification. They might be doing it for the next 20 years, so should also have that qualification. We should perhaps give them a period of several years’ latitude to take the qualification, but we want to see a situation where teachers, through their training, know the issues and where there is a qualified person in every school to deal with these issues. That way, the excellent work that is suggested in the code of practice will actually happen, because there are people who know what they are talking about and know what to do.
Baroness Jones of Whitchurch (Lab)
My Lords, I will comment briefly on the amendments and support the noble Lord, Lord Addington, and other noble Lords who have spoken this afternoon. As ever, the noble Lord, Lord Addington, made a very powerful case for quality teaching to identify children with dyslexia and all other specific learning difficulties. It is important that we broaden it and do not just concentrate on the—very important—needs of children with dyslexia.
In earlier debates on the Bill, and again this afternoon, we have stressed the importance of earlier intervention. The noble Lord, Lord Storey, has just done that again. It is important that we identify children at the earliest opportunity so that we can give them the support they need to maximise the opportunities that their education can give them. These amendments clearly build on that theme. However, for early intervention to take place consistently, all teachers should be trained in the technique of spotting where it might be necessary. They need to be aware of the range of support mechanisms that are effective and can make a difference. This cannot be left to chance or to some teachers developing a personal interest in SEN, which is, all too often, what happens at the moment.
For each teacher who is unaware, or fails to act, another child’s life chances are blighted. We very much agree with the mandatory module in teacher training. Leaving it to individual schools to provide the knowledge and skills for teaching staff will leave it too late, and we believe it will result in piecemeal provision if we proceed on that basis. Sorting this provision out is crucial to the success of all other aspects of the Bill when it comes to SEN. If we do not get teacher training right, all the other aspects of support that we are talking about here will fall at the very first hurdle.
We also agree with the proposal that the SEN co-ordinator should be a qualified teacher who has been trained in SEN and specific learning difficulties, and we were pleased that the Minister has now acknowledged that the co-ordinator should be a qualified teacher. These high-level skills are crucial to ensure that the school properly focuses attention on the needs of specific groups of pupils, as specified in the new Ofsted framework. It is an interesting development that, with the Government’s new-found faith in unqualified teachers, special educational needs co-ordinators will be the only posts in a school required to be qualified teachers, but I slightly digress.
This leads to another issue, which is that if the Minister agrees with the amendments with regard to teacher training modules and the status of school SENCOs, we are faced with a considerable knowledge deficit among existing teachers, both qualified and unqualified. What further steps do the Government intend to take to ensure that training for existing teachers and, indeed, existing SENCOs can meet our expectation of early intervention and action? How can we be confident that their knowledge of the latest physical and technical equipment is kept up to date if we are focusing just on newly qualified teachers and new training for SEN teachers? I am echoing the points made by other noble Lords, and I hope that the Minister will be able to address the issues.
Baroness Butler-Sloss
When my dyslexic granddaughter was identified as such in her excellent primary school, it sent someone out to learn about it because there was no one in the school who had any idea of how to deal with dyslexia. It was an excellent primary school in north London, Eleanor Palmer Primary School, for which I have the highest respect. I wonder how many schools, if they had a dyslexic child, would take the trouble to send somebody out to learn. If a school as good as that did not have anyone who understood it, what is going on? It seems to me that these amendments are extremely important.
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, there is a Division in the Chamber. The Committee will adjourn for 10 minutes and resume at 6.02 pm.
Lord Nash
My Lords, I am grateful to my noble friends Lord Addington, Lady Walmsley and Lord Storey for highlighting the importance of high-quality teaching for pupils with SEN. I hope to set out in my response to this debate how the Government are taking this seriously.
I will first speak to Amendment 195, which would require the SENCO to be a qualified teacher and to complete mandatory training on SEN. I entirely agree with my noble friends that this should be the case. The draft Education (Special Educational Needs Co-ordinators) (England) Regulations for Clause 63 were published on 4 October. They require the SENCO to be a qualified teacher or, indeed, the head teacher of the school. In addition, schools must ensure that SENCOs who are new to that role obtain the master’s-level National Award for SEN Co-ordination within three years of being appointed. That is mandatory, as my noble friend Lord Storey said. Since 2009, we have funded 10,500 new SENCOs to complete this award. These requirements mean that SENCOs are often among the most highly qualified and experienced teachers within a school, which is absolutely fitting for the importance of the role that they fulfil.
The current specification for the national SENCO award requires SENCOs to cover approaches to assessment and teaching for pupils with special educational needs. They must demonstrate that they understand the four areas of need as set out in the code of practice as well as implications of these for teaching practice. They should specifically demonstrate that they know and understand about high-frequency special educational needs, such as dyslexia, and know how to draw on expert external services to meet these needs.
Amendment 196, tabled by my noble friends Lord Addington and Lady Walmsley, would impose mandatory training in SEN and specific learning difficulties for all new teachers. There are no mandatory modules and no required curriculum for initial teacher training. Instead, ITT providers must ensure that their courses enable trainee teachers to meet the Teachers’ Standards. No trainee should be recommended for qualified teacher status unless they have met the standards. The Teachers’ Standards already state that teachers must,
“have a clear understanding of the needs of all pupils, including those with special educational needs”.
Teachers must also be able to adapt teaching to the needs of all pupils and have an understanding of the factors that can inhibit learning and of how to overcome them. Anybody who works in a school today knows that the identification of SEN is at the core of a school’s life. Ofsted inspects both the quality of initial teacher training and the quality of teaching in our schools. These standards, and the ability to adapt teaching to meet special educational needs, are central to these inspections.
As the noble Lord knows, we are focusing more teacher training on training in schools. Ofsted reports that 31% of SCIIT training was rated good or outstanding, compared with 13% for higher education institutions. NQTs trained through School Direct rate the quality of their SEN training more highly than other trainees. New teachers report that the quality of training in SEN has improved. In fact, it is the best ever reported. A DfE survey of 12,000 newly qualified teachers in 2012 found that just 7% of them rated their training in SEN as poor, and that 59% of primary and 66% of secondary teachers rated their training as good or very good in helping them to teach pupils with SEN. That compares to as few as 45% in 2008. The 2013 survey of NQTs on the same subject will be published on Friday. For reasons I cannot entirely fathom, I am not allowed to reveal the results today, but I will tell noble Lords—probably breaching some rule—that they are going to show a considerably improved picture.
Taking the slight digression, as she called it, of the noble Baroness, Lady Jones, about unqualified teachers’ SEN training and her general point about unqualified teachers, I shall make two points. Although I entirely acknowledge that the previous Government invested heavily in teacher training, they did not go as far as making SEN training mandatory for all teachers, so there is a slight inconsistency in her position. That is as nothing compared with the inconsistency in the shadow Secretary of State for Education’s position the other night, when nine times he declined to answer a question from Jeremy Paxman about whether he would send his children to a school with unqualified teachers, but let us not digress any further.
Following similar concerns put forward in another place, we have also strengthened the expectations on schools as set out in the SEN code of practice. The new code makes it absolutely clear that schools should ensure that teachers are equipped to meet pupils’ special educational needs. The code requires that teachers’ ability to meet SEN is included in the school’s approach to professional development and in their performance management arrangements. Section 6.5 of the code requires schools to review,
“teachers’ understanding of strategies to identify and support vulnerable pupils and their knowledge of the special educational needs most frequently encountered”.
I know that my noble friend Lord Addington has a long-standing interest in dyslexia and will be particularly keen to ensure that teachers are equipped to tackle this issue in schools.
The Department for Education is funding a range of specialist organisations covering autism, communications needs and dyslexia to provide information and advice to schools on implementing our reforms. The Dyslexia-SpLD Trust, for example, is providing an online professional development tool for teachers to help assess their current knowledge of dyslexia and access further training. The trust will also be providing a toolkit to help teachers identify and respond to literacy difficulties and dyslexia.
I hope that I have made clear that the Government recognise absolutely the importance of high-quality teaching for pupils with SEN and that we are determined to ensure that they get an extremely good deal. I therefore urge the noble Lord to withdraw his amendment.
Lord Addington
My Lords, I listened to my noble friend and he seemed to be saying that more or less everything other than making my proposal compulsory for teacher training is fine. That might be understandable but provision has been made in Scotland, which has a compulsory unit that was agreed among the universities that carry out teacher training. I had a conversation with Dyslexia Scotland, which was of the opinion that Edinburgh had the best provision at that time—but all such universities have a unit. It does not hurt anyone and I ask my noble friend to have another look at this. Will he consider what can be provided to make sure that the average teacher has every incentive and opportunity to at least get a basic awareness component into their knowledge base? I am assured that units have been prepared by numerous people and other bodies in relation to conditions such as autism. There should be an awareness programme that means that classic mistakes are not made; in dyslexia, the one I know best is, “Just work harder”. That will not work. Even if you do synthetic phonics, you will still learn at a slower rate. It is a little like making a small man carry large sacks of coal; regardless of how well he does and how he builds himself up he will never match the bigger guy and will always be at a huge disadvantage. He will be more tired, slower and learn less well.
The standard response to, “Let’s not forget the rest of the class” is either to disappear into the middle of it or to disrupt at the back, so they are not exposed to something unpleasant. If you can get to that pupil and give them some support and help, they are less likely to make life difficult in the classroom and for those around them. On average, three people in every class being taught will be on the dyslexia spectrum. You could probably stick a couple of other hidden disabilities in there as well. So an awareness package is something that we should look at. My noble friend does not look like he wants to respond now but we need to look at this later on.
I shall have to look my noble friend’s response on Amendment 195, and have a word with advisers to make sure that it covers most of our points, but it seemed to be a better response. I hope that we can have another look at this issue and at least clarify where we think the weaknesses are. I beg leave to withdraw the amendment.
Baroness Greengross
Baroness Greengross
My Lords, I shall speak to Amendments 198 to 205, that is, all the amendments in this group. One of the reasons I am particularly interested in this issue is because I have been heavily involved in the Care Bill from the pre-legislative scrutiny stage to the present. One of our concerns throughout that consideration was for children and young people who are just emerging from childhood, so to speak, and get caught in the not quite adult/not quite child time of life when the system sometimes fails them. Therefore, it is important to ensure that we get things right, in particular in relation to special educational needs and education, health and care plans.
These amendments would ensure that other organisations that might need to be involved in this area would be responsible for delivering the services described in the plans and for making sure that they actually do what they say. For many, schools will be the main day-to-day contact point but colleges will often be involved as well. At present, a number of provisions apply to schools but not to colleges, all types of alternative provision and pupil referral units. My amendment would place the same duty on FE colleges as on all types of maintained school settings.
Clause 64 places a duty on schools to inform the parents of a child without an EHC plan and/or the young person without an EHC plan when special education provision is being made for them. Without these amendments, young people up to the age of 18 who do not have EHC plans who attend school and/or their parents will be entitled to be informed, but young people of the same age who are students at FE colleges will not. We have to remember that from September 2013 young people will be able to attend FE colleges from the age of 14, so this issue applies to a number of young people.
I understand that the Government are somewhat reluctant to place any additional duties on FE colleges, but my concern is primarily with the children and young people concerned rather than with the colleges, I am afraid. If they are to be at the heart of the new system, the information provided should not vary in this way according to the type of institution that they happen to attend.
Clause 65 places a duty on schools to prepare a report containing special educational needs information. This information concerns the implementation of the governing body’s or proprietor’s policy for pupils at the school with special educational needs, the arrangements for the admission of disabled pupils to the school, the steps taken to prevent less favourable treatment of disabled pupils, the facilities provided to assist access to the school by disabled pupils and the accessibility plan which schools must publish under the Equality Act 2010. In a similar way to Clause 64, the amendments, which are very straightforward, would simply place the same duty on FE colleges or similar institutions as on maintained schools. I beg to move.
Earl Attlee
My Lords, I shall respond to the noble Baroness, Lady Greengross, who moved the amendment on further education institutions. I thank her for explaining her intention behind them.
I fully agree with the noble Baroness on the importance of special educational provision in colleges, and I am pleased to have this opportunity to explain why we have not extended the duties in Clauses 64 and 65 to the further education sector and to reassure noble Lords that this does not undermine the 0 to 25 coverage of the new system, which has been warmly welcomed by many during the debate on this part.
The Bill creates a reformed SEN system spanning the age range from 0 to 25 and extends important new rights to young people. Within that context, we must acknowledge that settings are not all the same. Schools and FE colleges differ in the experience that they offer their students, in their size, the breadth of their provision and in the age range they cater for.
I turn first to Amendments 198, 199, 200 and 201 which would place a new duty on FE institutions to tell young people if they are receiving special educational provision. It might be helpful to clarify for the Committee that the duty on schools in Clause 64 was originally put in place to ensure that parents were made aware when their child was in receipt of special educational provision. As noble Lords will know, this Bill gives new rights to young people once they are over compulsory school age—generally speaking those who are 16 and over—rather than their parents. Any new duty on colleges would therefore require them to inform the young person that they are in receipt of special educational provision and not their parents.
Young people in further education typically follow more tailored, individual study programmes than they had at school. Colleges will discuss with young people directly possible study programmes and the support they will need to complete those programmes. Discussion about that support may or may not include an explicit reference to SEN.
The noble Baroness talked about young people not quite being children and not quite being adults. For some young people, taking up a place at college is an opportunity for a fresh start, particularly if they felt a failure at school. The label “SEN” might be unhelpful in some circumstances, and the college will want to be sensitive about handling this. The Association of Colleges has expressed concern about this amendment, saying that it,
“risks treating young people, many of whom are sensitive about their educational achievement, the same as children”.
It goes on to say that,
“colleges go to great lengths to handle such issues sensitively by providing an initial assessment for all students to provide education that fits people’s individual needs”.
The AoC is also concerned about the sheer numbers involved. For example, one college in Essex reported to the AoC that it considers that 1,800 of its students are receiving special educational provision. That is a very significant additional burden on colleges.
The noble Baroness suggested that Clause 64 creates an anomaly. Young people in FE colleges do not need to be told that they are receiving SEN provision, but young people in sixth form must be told. She suggested that that was unfair. I understand the noble Baroness’s point in that regard. The Bill creates a distinction between young people in school and young people in college. There are two reasons why that is so. First, in the further education environment, a young person is more likely to find the label “SEN” unhelpful, and colleges are used to using their professional judgment about labelling support.
Secondly, we have sought not to place duties unnecessarily on the further education sector. School sixth forms are already under a duty to inform parents where a child is receiving special educational provision. Clause 64 changes this duty so that they must inform the young person directly.
I now turn to Amendments 202 to 205, relating to the requirement for FE institutions to publish an SEN information report setting out information about their policies for children with SEN and disabilities. Clause 65 replaces Sections 317(5) and 317(6) of the Education Act 1996 and is a well established duty on schools, but there are no existing similar legal duties on colleges, and we do not believe it is necessary to legislate for a new duty in this area. As the Association of Colleges points out, this information is readily available, as colleges already produce it for their websites and prospectuses. It is also the case that colleges will have to produce this information as part of their local offer. Colleges are under a duty in this Bill to co-operate with local authorities to produce a local offer. This includes details of their approach to teaching young people with SEN, how they adapt their curriculum and learning environment, how facilities can be accessed and what support is available to young people with SEN. More detail is set out in Schedule 1 to the draft local offer regulations.
I hope I have provided the assurance that the noble Baroness seeks that we have good reasons not to place those additional duties on further education colleges. I hope she will feel able to withdraw her amendment.
Baroness Greengross
My Lords, I thank the noble Earl for his very considered reply, but I am not really happy with it because, as I mentioned, some of these young people will be 14. Parents with children with special educational needs are not usually immune from wanting to continue to know what is going on and to be reassured that their children—or young people—are having the tailored type of education and healthcare that they need. Therefore, I will have to take this back, look at it again with the local authorities that are also worried about this, and come back on Report.
Earl Attlee
I have a little bit more to add. Young people aged 14 to 15 who go to college may be doing so for a different reason, but I would be happy to think about what more we could say in the code of practice about the particular consideration that further education colleges should give to students in this age bracket, including the importance of keeping the family informed.
Baroness Greengross
That is very helpful, and I thank the noble Earl. I will still take this back and consider in detail all the points that he raised. In the mean time, I beg leave to withdraw the amendment.
Lord Low of Dalston
Lord Low of Dalston
My Lords, I rise to move Amendment 206 and shall speak also to Amendments 207 to 209. I will do these two things separately as Amendment 206 deals with one issue and Amendments 207 to 209 deal together with a somewhat separate but interrelated set of issues. I hope that I will be able to do both fairly briefly.
Turning first to Amendment 206, it would require that a plain English version of the code of practice should be made available. Much of the detail of the reforms contained in this Bill will be enshrined in the code of practice. Indeed, the code of practice will be the Bible, both for providers and users of the system. I recall an experience I had when I was one of the founder members of the Special Educational Needs Tribunal back in 1994. We attended a training session and somebody came along to brief us on the old code of practice. She said, “Well, I expect that you would like me to tell you what are the most important parts of this code of practice that you need to be most familiar with. What I am here to tell you is that you need to be fully familiar with it all”, so it is obviously a crucial document. The new code of practice will be the same as the old one in that respect. It was—and the new one will be—a crucial document, and I am sure that we are all most grateful to the Government for making the latest draft available in time for the Committee. That shows just what a crucial document it is.
It is also a very lengthy document—more than 170 pages—and although it will no doubt be subject to change over time, it will remain quite a complex document, so it is incumbent on us to ensure that the document is made as accessible as possible to young people and their families. A version of the code that provided clarity about a person’s rights and choices, made readily accessible in plain English, would be extremely valuable. As the Plain English Campaign has stated:
“The law is the most important example of how words affect people’s lives. If we cannot understand our rights, we have no rights”.
There are precedents for the use of plain English versions, for example, in relation to the Localism Act, so I hope that the Minister will agree to this amendment to ensure that families do not have to grapple with an impenetrable document and get the information that they need made easily accessible to them
Turning to Amendments 206 to 209, at first sight, the Government, with their Amendments 210 and 211, have gone a long way to meeting what these amendments were asking for. Indeed, I readily acknowledge that the Government’s amendments are very helpful, but they do not take us all the way. In two respects they do not take us all the way. Amendment 207 specifies a 90-day consultation period, which I think is perhaps more in accord with usual practice. The Government’s Amendments 210 and 211 seem, at first sight, to concede all that the amendments are asking for in terms of the code needing to be approved by the affirmative procedure in both Houses of Parliament. The wording of these amendments is a bit opaque but, when you unravel it, it becomes clear that the affirmative procedure is being conceded in relation to the first iteration of the new code, but not in relation to subsequent iterations which are simply subject to the negative procedure. The Delegated Powers and Regulatory Reform Committee pointed this out in its report last week, I think, and said that if the Government are conceding the affirmative procedure in relation to the first iteration of the code of practice, they are effectively conceding that any subsequent iteration of the code needs the affirmative procedure.
I therefore think we will want to continue to push Amendments 207 to 209. While expressing gratitude to the Government for the distance that they have moved with their Amendments 210 and 211, I express a little disappointment that they have not moved all the way and, indeed, made the further concession that the Delegated Powers and Regulatory Reform Committee has suggested is essentially implied by their concession of the affirmative procedure for the first iteration of the code of practice. I beg to move.
Baroness Hughes of Stretford
My Lords, I support Amendments 207, 208 and 209, to which I have added my name. I think we are all very clear that the code of practice is a very important document, as the noble Lord, Lord Low, has just said. It will determine the detail of implementation of the Government’s legislation in a very marked respect. Therefore, the mechanism by which the code is approved, and then subsequently revised, is also very important.
We have been round the houses somewhat with the mechanism of approval. There was a great deal of pressure from the Delegated Powers and Regulatory Reform Committee in response to the Government’s initial proposals that the code of practice, even in its first iteration, should be subject to the negative resolution procedure. As the noble Lord, Lord Low, has just said, the Government have conceded that the first iteration should be subject to the affirmative procedure. That is very welcome. However, as he also said, the most recent report from the DPRR Committee said that although that is welcome,
“there is nothing in the Government’s response to suggest that revisions to the code will necessarily be of any less significance or importance so as to warrant a lower level of scrutiny. Accordingly, we remain of the view that the case has not been made for applying the draft negative procedure, and for this reason we consider the draft affirmative procedure should also apply where the code is being revised”.
That is what Amendment 209 would achieve.
I will just briefly mention Amendments 207 and 208, because they also deal with some aspects of the Bill that are not being redrafted by government Amendments 210 and 211. Clause 68(2), in particular, says that, in putting forward the code or any revisions:
“The Secretary of State must consult such persons as the Secretary of State thinks fit”.
We think that it should not be the decision of the Secretary of State as to who he or she consults about the code but that there should be a public consultation lasting 90 days, which is what Amendment 207 in particular would also achieve.
Baroness Sharp of Guildford
My Lords, my name is attached to Amendments 206, 207 and 208 and I will just say a few words about both sets of amendments. In relation to Amendment 206, the current draft code of practice is actually written in fairly good, plain English, as far as I am concerned, and is relatively understandable. I commend those who put it together because it is a very good document and meets many of the comments that I know were made at an earlier stage. It is still subject to consultation and obviously there is still room for improvement.
In relation to Amendments 207 and 208, I will just endorse the words of the noble Baroness, Lady Hughes. Rather than there just being consultation with those whom the Secretary of State thinks appropriate, the code should be publicly available for consultation. That is something on which we would all put a lot of emphasis.
Lord Nash
My Lords, I shall speak to this group of amendments on the SEN code of practice for 0 to 25 year-olds. I thank the noble Lord, Lord Low, the noble Baronesses, Lady Hughes and Lady Jones, and my noble friend Lady Sharp for tabling these amendments and raising this important matter. I am also grateful to all noble Lords who have spoken. I have listened carefully, and it is important that we ensure that there is a good understanding of and confidence in the code of practice. It is vital to the success of the new system. I hope I can reassure noble Lords in my response.
Turning first to Amendment 206 tabled by the noble Lord, Lord Low, we are in complete agreement with the intention behind it. I think all noble Lords would agree that if the new code of practice is going to be a useful document and one which parents, young people and professionals can work with it needs to communicate its meaning clearly and be readily available. While any document which has to describe the law accurately may contain some text which has to be read twice, the department has striven to make the draft code as easy to read as possible.
We trust that we have abided by the principles of plain English as much as possible, and I am grateful to my noble friend Lady Sharp for her comments, which I will pass on to all officials who have been involved in its drafting. However the draft code is currently out to consultation, and we are keen to receive suggestions for making any parts of the text easier to understand and will look carefully at any text which readers say they find difficult. Noble Lords may be aware that the current code of practice is accompanied by a Plain English Campaign Crystal Mark publication Special Educational Needs (SEN)- A Guide for Parents and Carers. We intend to publish a similar document for parents and young people along with the new SEN code of practice.
Turning to the second element of this amendment regarding the availability of the code on the internet, publication on the internet is now the department’s main method of publication, and I can reassure noble Lords that the new code will be available on the internet. We will also make sure that the code, like the consultation draft, is published in a web-accessible format, so that, for example, readers with visual impairments will have access to it.
I now turn to Amendments 207, 208 and 209 which relate to Clause 68, which is headed,
“Making and Approval of Code”.
The SEN code of practice is fundamental to the SEN framework and the noble Lord, Lord Low, is right to raise the issue of its approval, an issue which I know is of great importance to SEN organisations and many noble Lords. As noble Lords will be aware, ahead of the introduction of this Bill into the other place, the Education Select Committee carried out pre-legislative scrutiny on Part 3. One of the recommendations of the committee was that the code should be approved by Parliament through the negative procedure. We were in agreement, fully recognising the importance of parliamentary scrutiny of the code of practice, and we accepted the Select Committee’s recommendation. Indeed, we are now going further in response to a recommendation from the Delegated Powers and Regulatory Reform Committee. We have tabled Amendments 210 and 211 to ensure that on the first occasion the new code is approved, it will be through the affirmative procedure, and for subsequent revisions, it will be through the negative procedure, recognising the significance of the new code in reflecting the new legal framework we have been debating.
The Countess of Mar
My Lords, I admit to being a member of the Delegated Powers and Regulatory Reform Committee. Will the Minister explain why he has rejected an affirmative instrument in the second case?
Lord Nash
I am grateful for the noble Countess’s question. I shall explain. On 24 October, the DPRRC published a subsequent report in response to the Government’s Amendments 210 and 211 which reaffirmed its recommendation that the code should be approved by affirmative procedure on the first occasion and whenever it is revised.
We are in complete agreement with noble Lords on the importance of the SEN code of practice, particularly to parents, and I understand why the supporters of this amendment want to maintain the current arrangements for approval. I would like to set out why we do not think that this would be in the best interests of those who use the code, and why we think it vital that we keep the ultimate users of the code in mind during this debate.
Lord Low of Dalston
I am very grateful to the Minister for his careful response and the way in which he dealt with the arguments and to all other noble Lords who have spoken in support of my amendments. As I say, I am very grateful to the noble Lord but I am not entirely persuaded. I think he said that the previous code had been introduced in 2001 and that, because of the pressure on parliamentary time, it had not been possible to find any time to update it between then and now. I cannot believe that it would not be possible to find any parliamentary time—not a lot is required—for a debate on the affirmative procedure. I find it hard to believe that one could not find any time in 12 years, so I was not entirely persuaded there, nor, it seems, was the Delegated Powers and Regulatory Reform Committee. However, I will not press the point any further at this stage, so I beg leave to withdraw the amendment.
“(4) The Secretary of State may not take any further steps in relation to—
(a) a proposed code unless the draft is approved by a resolution of each House, or(b) a proposed revised code if, within the 40-day period, either House resolves not to approve the draft.(5) Subsection (5A) applies if—
(a) both Houses resolve to approve the draft, as mentioned in subsection (4)(a), or(b) neither House resolves not to approve the draft, as mentioned in subsection (4)(b).(5A) The Secretary of State must issue the code or revised code in the form of the draft, and it comes into force on such date as the Secretary of State may by order appoint.”
Lord Addington
“Screening for specific learning difficulties
After section 562E(2) of the Education Act 1996 (literacy and numeracy assessments) insert—“(2A) The host authority must make arrangements to ensure that a detained person undertakes a screening test for dyslexia as soon as reasonably practicable.””
Lord Addington
My Lords, for me this is a case of “three times pay for all” when it comes to dyslexia. The reason I have tabled this amendment is because you find abundant evidence of special educational needs among our prison population. The estimates for the number of prisoners on the dyslexia spectrum range from 20% to 50%, the higher figure being the more frequently occurring. It is generally accepted now that every problem to do with literacy and educational attainment occurs in abundance throughout our prison population. I have singled out dyslexia for screening because of my interest in it and because it will probably be the most frequently occurring problem.
Why do we need to conduct screening for dyslexia? A few years ago I became familiar with a project in Chelmsford Prison under the leadership of Jackie Hewitt-Main. She discovered that lots of dyslexics would go nowhere near the education department. One realises in three seconds that they go nowhere near it because it constitutes a bad experience for them. Most prisoners are no longer in school by the age of 14. If someone has not been attaining in the education system, it is an unpleasant experience and they often find themselves getting into enough trouble to send them to prison. It is as if they are saying, “Let us go in there and go through a bad experience in the classroom”. Suddenly, it becomes obvious that they will try to avoid that. The redoubtable individual I mentioned was originally looking at head injuries, of which she found many. She did a survey of prisoners who would not go into the education block. She found that once you had established that link to their previous experience these prisoners became much more open to training and to assistance in changing their lives. The incidence of violence on the wing in question dropped and the prisoners stopped hitting one another quite so much—perhaps they had something to talk about. It was subsequently discovered that half the prison warders were in the same boat. As an aside, dyslexics tend to like regular hours and regular forms et cetera. They do not like promotion when they have to change the form, but that is an aside for another day.
So having a form of assessment on entrance into the system would seem to be sensible idea. Once again, I have one caveat, which I have given before: you should probably extend this to a list of other conditions. For example, I discovered that Asperger’s is overrepresented as well. If you have problems with communication and you have problems with the law, once again it becomes quite obvious how that could happen and you go down the list. But the principle of screening is a good one. Of course, you have to back this up with the correct action. I am afraid that bits of the Prison Service have a history of screening and saying, “Yes you are”, and then doing nothing about it. An awareness programme must back it up. That is what is required.
The noble Lord, Lord Ramsbotham, who I am afraid has had to leave us, asked me to speak to his Amendment 213. The idea that you should maintain the EHC plans once you are inside the prison system or custody service does not require much thought. If you have an identified process going or a pattern of activity, it should be maintained or at least replaced by something extremely similar to it or better. That is fairly straightforward.
Then we come to another thing that the noble Lord, Lord Ramsbotham, has tabled: removing Clause 70 from the Bill. I was half thinking about putting my name to this amendment, but I was beaten on the draw by many other Members of the Committee. Noble Lords should not press this if the Minister can tell us that the Ministry of Justice has a specially constructed programme that will address the needs of its client base that goes beyond, and is more appropriate than, that provided outside. That would be a good reason for not removing the clause because—nobody disputes this—we have a very high need base. If there is something that it is appropriate for adults or young people disaffected with the education system and is especially suited to them, you should not remove it.
If we do not get that quality assurance, we will not get people who will be able to talk about administering educational needs identification or coping strategies for how to access further education, where it is appropriate, and there will be problems. If you do not have people with a degree of sensitivity and skill in there, you should remove the clause. If we hear that we are going to do lots of wonderful things with people who are not properly trained, not skilled and not accustomed to the environment they are going into, the possibility of achieving nothing or even doing damage is high. These are probing amendments and I look forward to hearing what my noble friend has to say.
Lord Storey
Any hope of improving the education of detained young people must include addressing their special educational needs. It is a frightening statistic that 70% of those young people have special educational needs and 20% of them currently have statements.
The existing statutory duties placed on those councils that have a youth offender institution in their area—a host authority—by the Apprenticeship, Skills, Children and Learning Act 2009 are to use,
“best endeavours to secure that appropriate special educational provision is made”,
but of course councils have never had the funding or the commissioning responsibility for securing that education. Those duties are currently fulfilled through contracts made by the Education Funding Agency funded by the Ministry of Justice.
As the concept of the host authority has never been implemented in practice, it would perhaps be helpful to see this complicated situation resolved by repealing those clauses in the Apprenticeship, Skills, Children and Learning Act 2009 that refer to the host authorities. The Government have acknowledged that the current situation is not working, and could use the opportunity to make provision for young offenders with special educational needs that can work in practice and really address the needs of those young people.
Baroness Howarth of Breckland
My Lords, I rise to speak to Amendment 214. My name is attached to it and I particularly wanted to speak to it because it is the continuation of an old story of detained young people missing out on all the privileges that other young people have. In particular, when they have been in care and then find themselves detained, the local authority no longer continues to look after them in the new institution in which they find themselves. In the past, we tried very hard to ensure that that care continued, but as the noble Lord, Lord Storey, has pointed out, that has not really been carried forward and certainly is not working at present.
We should remind ourselves that children who are detained are the most vulnerable in our society, particularly if they have a range of special needs resulting in an EHC plan. We all know the statistics for children who have been in care, so I will not repeat them, and those for the most troubled families and young people with mental health problems who find themselves in some kind of detention. Because there is a plan in place, and because of the difficulties faced by these young people, they are probably known to their local authority, and are likely to have a social worker and an existing programme to meet their needs. It is therefore absolutely essential that the plan is maintained and for the child or young person with special needs to have the services in that plan continued.
Anyone who has been to any of these institutions, or talked to any young people from care who have found themselves dropping out of the care system and into the offender system, will know that they lack that continuity and their education ceases. How much more difficult it is for children with special needs whose families have often struggled anyway to get them the services that they need so far. It seems perverse, therefore, that they are deprived of this continuity. Often they are detained due to behaviour that has stemmed from their learning difficulties: the fact they do not always comprehend what is going on around them; the fact that they cannot read instructions; or the fact that they are sometimes easily led because they do not have the same intellectual grasp of what is going on as others. Those young people who are seen as the offenders and the difficult young people in our society are not seen as “the deserving”.
I contend that the opposite should be true. Having already been failed by their family, often by their education and usually by social care, what these young people need most at the time of crisis is stability and continuity. They need a programme to take them through their detention and re-establish them in their community. If their programme is continued—and their education and health plans, as they often have complex health needs—then it is clear to me that they would have a much better chance of a new start.
I know that there are young people—I have run large institutions—who are detained for their own safety, so I am not suggesting that all young people are in this category. However, many—especially those with these learning needs and dyslexia and often undiagnosed conditions—may well have found themselves in trouble because of their lack of understanding. If the plan is to have any meaning, it should identify the areas of concern wherever the child is; it should have portability, particularly into custodial facilities. I am very pleased to support this amendment.
Baroness Walmsley
My Lords, my name is attached to Amendment 212. I will just make a couple of short points. I, too, am familiar with the work of Jackie Hewitt-Main and have read her very inspiring book. I am a great admirer of the work that she has done in prisons. One story that she told really struck me: some young people in custody were not getting the help they needed with their dyslexia for the following reason. When they went in, they were given a form to fill in to say what sort of educational provision they wanted. They could not read it—it is a simple thing, is it not?—so they did not get any help at all. They did not get any courses because they had not ticked any of the boxes because they could not read what it said next to them. It has to be said that some prisons are very good, but the majority fall by the wayside in a very bad way.
I absolutely agree with the noble Baroness, Lady Howarth, that very often the reason why those young people are there in the first place is because they cannot read. They could not get a job and they could not get a driving licence because they could not read the Highway Code. They were at a great disadvantage. In the current economic situation, we have to ensure that money is spent as wisely as possible. I can think of no more effective way of avoiding reoffending and the great expense that it puts on the public purse than spending money on addressing the special educational needs of young people in custody. There really is a very good investment to be made there and we ought to be making more of it.
The Countess of Mar
My Lords, I will just follow up on the comments from the noble Baroness, Lady Walmsley. This is when online and blended education can come in very useful, because it is not expensive, compared with person-to-person education. I hope the Minister will consider it.
Baroness Hughes of Stretford
My Lords, I will briefly add to the comments in support of Amendments 213 and 214 and speak to my and my noble friend Lady Jones’s intention to oppose Clause 70 standing part.
Young people who have previously had a statement are very overrepresented in the youth justice system, making up about 18% of young offenders. About 80% of those in young offender institutions have literacy problems or dyslexia to some degree. According to the Communication Trust, around 60% have communication needs. There is a very high level of need concentrated in this population of young people. We would all agree that those are shocking statistics and that clearly, in one way or another, many of these young people have been failed up to the point in their lives when they end up in the youth justice system.
I have some sympathy with the prison system, because it has, as I say, a very high concentration of need. However, in my experience, it also the case that despite some very dedicated individuals—and there are some in the prison system—the system as a whole has never done enough to address the special needs of young people in custody. Under the system that we have at the moment, the local authorities in general—we have heard that many young people in custody have also been through the care system—and the services available in the home communities from which these young people have come, and to which most of them inevitably will return, are also let off the hook while those young people are in custody.
Successive Governments have tried to get this right, and have made some progress, but nowhere near enough. It seems that the Government are now proposing significant changes, which many of us have welcomed, in the Bill in respect of special educational need provision in the community. Surely, therefore, this is an opportunity to grasp the nettle and make that change for young people currently in custody, so that we have some real consistency across the piece for young people with special needs.
Finally, the Minister said in the annexe to his letter to noble Lords that applying these provisions to young people in custody would cause SEN legislation to come,
“into conflict with existing, comprehensive statutory provisions governing how education and support for children and young people is delivered in custody”.
In slight contradiction to that first point, he added that, in any case, the Ministry of Justice and the Department for Education are now working closely together for changes in the system to improve the provision in respect of special educational needs. Why have a different set of changes? Would these changes not make more sense? That is not least because, as I say, they would tie in the local authorities and the schools from which young people are coming, and to which they are returning, and not simply leave this as a Prison Service issue.
Baroness Howe of Idlicote
My Lords, I very much support all that has been said on this amendment about detained children. I believe that the Government have a number of plans that will be quite valuable as the forward march to a much better system for young people is in progress. Above all, if you just have one single test the moment that a young person comes into custody, to find out whether that child had any problems, and started from that point, you would not waste the time that has been wasted for so many years. I very much support this amendment.
Lord Nash
My Lords, I thank the noble Lord, Lord Ramsbotham, and my noble friends Lord Addington, Lord Storey and Lady Walmsley for tabling the amendments in this group and giving the Committee the opportunity to discuss this important issue. I also thank other noble Lords who spoke.
We have given Clause 70 considerable thought since it was discussed in the other place and following the informative debate in this House at Second Reading. I understand the concerns raised today, which were prompted by this clause being included in the Bill. I assure noble Lords that there was never any intention for this clause to suggest that the Government are not concerned with supporting this vulnerable group of children and young people. I am very clear that I want to use this Bill to improve the support we provide to children and young people in custody with special educational needs. This is an issue I have been concerned with ever since, 42 years ago, during my university course on criminology and penology, I spent three weeks in what was then called a borstal. It was probably the most eye-opening three weeks of my entire education.
Clause 70 is included to play an important technical function by disapplying duties which would be impractical to deliver while a child or young person is in custody. For example, it would not be possible to allow a young offender to choose where they are educated or to give them a personal budget. We have been considering how we can introduce provisions that will ensure continuity of education and health support while a young offender is detained.
In Amendment 214, my noble friend Lord Storey has set out how Clause 70 could be replaced, and I listened to his thoughtful contribution to the debate today. I hope it reassures my noble friend and others that legislation exists in Section 562C of the Education Act 1996 setting out how education and support for those with special educational needs is delivered in custody. That legislation places clear duties on local authorities to use their best endeavours to deliver the special educational provision that is set out in a statement of special educational need. The consequential amendments in Schedule 3 to the Bill will place the same duties on local authorities for young offenders aged 10 to 17 in custody with education, health and care plans. However, we all agree that more needs to be done.
The noble Lord, Lord Ramsbotham, proposed a way forward in his Amendment 213 which seeks to amend existing provisions in the Apprenticeships, Skills, Children and Learning Act 2009. I thank the noble Lord for this amendment, which I know draws on his considerable experience and expertise in this area. The noble Lord has spoken with knowledge and passion throughout this Committee’s debate on Part 3 of this Bill, and I am particularly grateful for his contributions. As I have discussed with the noble Lord, the intention behind this amendment is in many ways similar to the solutions we have been considering.
Ensuring continuity of support already set out in EHC plans for those children and young people moving into, through and out of custody is exactly what I want to achieve. I am also considering whether we can enable children and young people in youth custody to have the right to ask for an assessment for an EHC plan where special educational needs are identified for the first time.
However, as I have discussed with the noble Lord, this new clause does not achieve all that we might want. For example, it is important to ensure that duties are on relevant health bodies rather than local authorities. Concerning the point my noble friend Lord Storey raised on behalf of the noble Lord, Lord Ramsbotham, it is essential that we properly consider what the role of the home local authority should be as well as that of the host local authority. As many in this debate have said, this is a great opportunity to make a difference, and it is important that home local authorities maintain their involvement with children and young people who are in custody so they are aware of progress and can make sure that appropriate provision and support is available when a young offender returns home on release. This is important if we are to reduce further the risk of reoffending.
I thank noble Lords for the debate today. We will carefully read the contributions from noble Lords between now and Report as we reach a decision on how best to amend Clause 70 to achieve the aim of improving provision for children and young people with SEN in custody which we are all agreed on. I recently met the noble Lord, Lord Ramsbotham, to discuss how we might do this, and I would like to continue to work with him and others as we develop amendments to be tabled ahead of Report.
I turn to Amendment 212 and the issue of screening those in custody for dyslexia. I agree with my noble friends Lord Addington and Lady Walmsley that we must support young offenders who have hidden disabilities such as dyslexia. I should like to assure my noble friends that assessments to identify such needs already take place in the youth secure estate. Education providers assess all young offenders’ levels of literacy, language and numeracy on entry to custody. They also use a variety of tests such as the hidden disabilities questionnaire developed by Dyslexia Action to screen all young offenders who show signs of having a learning difficulty or disability. These assessments are extremely important because they allow providers to identify a range of learning difficulties, including dyslexia. Once their needs have been assessed, all young offenders in custody receive an individual learning plan that follows them through the course of their sentence. Of course, if we are able to ensure continuity of EHC-plan support, then young offenders with plans will already have had such needs and relevant support identified. Education providers in young offender institutions are also contractually required to have a workforce trained to identify and support a young person’s individual learning needs.
Of course, despite the current legal and contractual protections, we can always do more. The Transforming Youth Custody Green Paper sets out how we want to put education at the centre of youth custody, thereby ensuring young offenders are equipped with the skills, qualifications and self-discipline they need to stop offending and lead productive lives on release. The consultation included a question on how best to support young offenders with special educational needs. The consultation ended on 30 April this year. Since then, the Ministry of Justice has been reviewing the responses received and carefully considering the next steps to transforming youth custody, and plans to publish the response to the consultation shortly. We want our amendments to complement the MoJ’s reforms and are working with it to achieve this.
With those reassurances, I hope that noble Lords will feel able to withdraw or not move their amendments.
The Earl of Listowel (CB)
My Lords, I apologise for asking a quick question. How does the virtual school head that this Bill puts on a statutory basis keep track of a looked-after child who enters the secure estate? Many of them will have special educational needs. There is no need for a response now but perhaps it is a matter that the Minister can think about for us to discuss at some point.
Lord Addington
My Lords, I thank my noble friend for that—shall I say?—reassuring answer. It was not the radical announcement that I was half hoping for, perhaps forlornly. However, it is certainly reassuring to know that people are thinking about this problem. I should also say to my noble friend that there is a lot of cross-party consensus on this. I do not think that anyone has any idea other than to try and improve this Bill, so I encourage him to make sure that we are all engaged in this. The continuation of political support on this issue can, on this occasion, be added to and built on. All of us want to find a sustainable and improving way to reach this incredibly hard-to-reach group. My noble friend Lady Walmsley talked about the problems that someone who cannot read has in accessing help. To take that one step further: try accessing the benefits system without being able to fill in a form, and then have the fear of humiliation in admitting that you cannot read. I encourage my noble friend to encourage the Ministry of Justice to address this. It must do so because everyone is a winner if we get this right. I beg leave to withdraw the amendment.
Baroness Walmsley
“Inspection and review of local authorities in England
In section 136 of the Education and Inspections Act 2006 (inspection of local authorities in England), after subsection (4) insert—“(5) The Chief Inspector must inspect the performance by an authority in delivering and commissioning specialist support services for children with special educational needs.””
Baroness Walmsley
My Lords, the Government argue that the local offer will improve transparency. However, in one area there is virtually no information available to parents: that is, information on the quality of specialist SEN support services. As drafted, the Bill misses an opportunity to improve outcomes for children with SEN by requiring Ofsted to inspect specialist SEN support services. We believe that this move would improve the overall accountability of the Bill.
This is another area in which the SEN Green Paper recognised the vital role that specialist SEN services have to play. Parents are therefore often surprised that these same SEN educational services are subject to no real formal scrutiny in the same way that schools are. The absence of any reliable data on the number of children with sensory impairments and the outcomes they achieve also means that parents have no way of comparing local offers and SEN provision. Let me illustrate this with an anecdote. A head of a service for deaf children said to the National Deaf Children’s Society:
“I wholeheartedly agree that specialist services should be inspected by Ofsted. All teaching should be inspected to ensure high quality, rigour and recognition of the specialist nature of the work that specialist teachers do as well as raising the profile of deaf education and provision. This would also contribute to narrowing the gap between deaf children and mainstream children attainment”.
As we know, Ofsted has already identified that local authorities are very weak on evaluation of SEN provision. The 2012 Ofsted report on effective practice in services for deaf children said:
“There was limited strategic overview and no systematic approach across all services to evaluate the quality of services and their impact on improving the lives of deaf children”.
In another place, the Parliamentary Under-Secretary of State for Children and Families stated that he was exploring with Ofsted how concerns about SEN provision could be covered under Ofsted’s existing programme for inspecting local authority school improvement functions. This statement was made in spring this year and no update has been provided since. I believe that there needs to be greater certainty on the local offer and accountability before the Bill progresses further.
The amendment would substantially improve the Bill by requiring Ofsted to inspect specialist SEN support services. On day seven of Grand Committee, the Minister—my noble friend Lady Northover—stated that the department has asked Ofsted,
“to study and report on how best to identify best practice in preparing for SEN reforms … and to consider particularly whether there is a need for an inspection framework to drive improvements”.—[Official Report, 30/10/13; col. GC 640.]
The Minister indicated that it would be next spring before that report would be published. That commitment was made in response to Amendment 111, tabled by the noble Lord, Lord Low, which would have required Ofsted and the CQC to inspect local offers.
Amendment 215 has a complementary but slightly narrower focus on inspection of specialist support services for children with SEN. The Minister's announcement is to be welcomed. However, it does not go far enough. There is already a strong and clear case for inspection of specialist support services for children with SEN. I believe that the case is especially strong for low-incidence SEN, including sensory impairments, because many local authorities and schools are unlikely to be as familiar with the specialist support needed by these children. Surely, the department should require Ofsted to begin inspecting these services now rather than delay any further.
Therefore, I ask the Minister the following questions. First, will he set out in more detail the terms of reference and timescales for Ofsted’s study? Will it also explicitly consider the case for inspection of specialist support services for deaf children? Secondly, although Ofsted’s inspection framework for schools already has an SEN focus, does he accept that Ofsted inspectors are unlikely to pick up on issues on the quality of support being received by a school from specialist support services for children with sensory impairment as there is often only one child with that need in the school?
Thirdly, does the Minister accept that because sensory impairment is a low-incidence need requiring targeted and specialist support, local authorities and schools are more reliant on specialist support services for children with sensory impairment? Does it follow that there is a case for more detailed scrutiny of these services?
Finally, given the scale of underachievement experienced by children with sensory impairments, is there a need for more urgent action to drive improvements? Will any new inspection framework be in place before this Bill comes into force? I beg to move.
Earl Attlee
My Lords, I am grateful to my noble friend for moving this amendment on the importance of inspection and review of the new system. Before turning to the specifics of the amendment tabled by my noble friend Lady Walmsley, it would be helpful to set out some of the details of the inspection and review system.
Local authorities and clinical commissioning groups are already held to account for the services that they provide in a number of ways. Ultimately, local authorities are accountable to local people through the ballot box. Clinical commissioning groups are held accountable by NHS England, which has powers of intervention where a clinical commissioning group has failed, or is at risk of failing, to meet its statutory obligations. The local health and well-being board also provides a local focus for accountability to the local population.
Local authorities must consult on the local offer and publish comments received from children and young people with SEN and the parents of children with SEN, which is another way of encouraging the local population to hold their local authorities to account for implementing the local offer. It is important for noble Lords to note that local authorities and clinical commissioning groups can already be held to account for their actions through individual complaints. The local offer will make the local complaint routes more transparent, so that families will be clearer about how to complain if they need to do so.
However, I understand the case for inspection, given the importance of these reforms. I turn now to Amendment 215, which, as set out by my noble friend, requires Ofsted to inspect local authorities on their commissioning and delivery of specialist SEN services. The SEN reforms are new. We therefore need to baseline best practice and use that analysis to identify whether a full inspection regime is necessary. On that basis, as my noble friend Lady Northover said in a previous debate, we asked Ofsted to undertake a study of how local authorities are preparing to implement the SEN reforms, working with the Care Quality Commission as they need. The work will consider how effectively local authorities and clinical commissioning groups will fulfil their responsibilities and how they will monitor improved outcomes for children and young people who have special educational needs. This study will help us to identify whether a new inspection framework would add value, and I or my noble friend would be content to discuss this further with noble Lords, if that would be useful. I think my noble friend Lady Northover has already made that offer. On that basis, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Walmsley
I thank my noble friend for his reply. Obviously, we all look forward with great anticipation to the study that he referred to, and I think that for the moment, we will just have to be satisfied with that. We will be looking for particular focus on low-incidence needs and how they will be covered. I accept that it is a good idea to get a baseline of best practice and then see how it rolls forward from there, but Ofsted is the expert in this so I look forward to hearing what it has to say about it. I beg leave to withdraw the amendment.
“Duty to secure sufficient communication support for parents with children with a hearing loss
(1) An authority must secure that the provision of courses for the purpose of learning how to communicate with a child with a hearing loss, including the provision of sign language courses, (whether or not by them) is sufficient to meet the requirements of parents of children for the hearing loss in their area.
(2) In determining for the purposes of subsection (1) whether the provision of courses is sufficient to meet those requirements, a local authority must have regards to—
(a) the cost of such courses;(b) the scheduling of such courses; and(c) the relevance of the contact of such courses to parents with children.”
Baroness Howe of Idlicote
My Lords, this amendment would insert a new clause imposing a duty to secure sufficient communication support for parents of children with hearing loss. The amendment would create a new duty on local authorities to ensure that families with deaf children have access to communication courses on communicating with their children. Some 90% of deaf children are born to hearing parents, many of whom have little or no prior experience of deafness. As well as the usual emotions that parents face when they learn that their child is disabled, parents of deaf children face a battle in learning how best to communicate with that child, particularly if they need to learn sign language.
Of course, sign language will not be appropriate for all families and children, but that option must be there if parents are to be able to play their important role in developing their children’s language and communication skills. I do not need to stress to the Minister how important and fundamental communication within the family is. It is the strongest influence on language development at age two. Money spent here to achieve those skills can be an absolutely invaluable investment. Indeed, failure to support communication within the family is a false economy. It condemns deaf children to a life of frustrated potential. We already know that by the time they start school, four out of five deaf children have failed to achieve a good level of development within the early years foundation stage.
The National Deaf Children’s Society believes that supporting families with deaf children on communication is more than just common sense and should be regarded as a basic human right. We must do more to ensure that families with deaf children can communicate with those children. Sadly, at present, I do not believe that we are doing enough. In a survey in 2011, the NDCS found that more than half—56%—of local authorities did not provide any support to families who needed to learn sign language to communicate with their children. The other half were found to be patchy and uneven in terms of exactly what they provided.
Some families have faced an agonising choice of deciding whether the mother or the father would be able to learn sign language, because local authorities have made funding available for only one person or because there is no childcare funding available. When this matter was raised elsewhere, the Government, alas, left it to the local authorities, saying that it was a matter to them to decide. Is the Minister confident that local authorities understand how important communication support for families is? Is he as concerned as I am, and as many others are, that more local authorities do not already make it available?
I acknowledge that the department has funded a range of projects to improve sign language provision to families, including the I-Sign consortium. That is welcome and certainly much appreciated. I also acknowledge the department’s hope that the Bill will address some of these difficulties, particularly through local offers and personal budgets. However, I would welcome the Minister’s views on whether he thinks this is likely to lead to the step change in provision that deaf children badly need—not in the future but here and now.
Is he confident that sign language courses will be included in local offers? Is he confident that courses would even be available to families should they wish to use their personal budgets for this purpose? Is he confident that local authorities will engage with, and listen to, families with deaf children on this matter? We must remember that deafness, as we have already heard from the noble Baroness, Lady Walmsley, is a low-incidence disability. Many local authorities are unlikely to be familiar with the needs of deaf children, who will always be one of a range of competing needs. Therefore, without a clear duty on local authorities, I and many others are concerned that sign language provision for families will continue to be patchy and progress will continue to be piecemeal. Surely, deaf children and their families deserve better and I hope that the Minister will seriously consider this amendment and its implications. I beg to move.
Baroness Wilkins
My Lords, I will speak briefly to support the amendment moved by the noble Baroness, Lady Howe. She has made a strong and clear case for action. This issue has been raised elsewhere several times and the fact that it continues to be raised must show the Minister the strength of feeling on it. The current approach of asking voluntary bodies to support improvements in individual local areas is just too piecemeal. The progress being made is far too slow, and deaf children are suffering because of it. Access to communication support for families with deaf children and young people is fundamentally important; the Government must send a clear signal to local authorities that it should be provided where needed. Otherwise, we will be here in 10 years’ time, still having this debate about the lack of sign language provision for families. I beg the Committee to support this amendment.
Baroness Walmsley
My Lords, I, too, rise to support the amendment of the noble Baroness, Lady Howe, and agree with the points that she has already made. In July 2011, the Prime Minister said in response to a Question from my right honourable friend Sir Malcolm Bruce MP:
“We do a lot to support different languages throughout the UK. Signing is an incredibly valuable language for many people in our country. Those pilot schemes were successful”.—[Official Report, Commons, 13/07/2011; col. 308.]
The scheme that the Prime Minister was referring to was the I-Sign consortium, which has piloted family sign language classes in two regions. NDCS, with support from the Department for Education, continues to work to support the development of sign language courses. However, local authorities cannot be compelled to provide sign language support because there is no duty to do so. As has already been outlined, a very high percentage of deaf children are born into hearing families who have no previous first-hand experience of deafness. These families really need support to communicate with their child, particularly where sign language is chosen.
It has been estimated that where deaf children need to communicate in sign language, eight out of 10 parents of deaf children never learn how to communicate with their child through sign language. Without the right support from the start, deaf children and young people are vulnerable to isolation, abuse, bullying, poor self-esteem and low levels of attainment. We have already heard from the noble Baroness, Lady Howe, how local authorities are very patchy in their provision of sign language services.
The SEN reform in this Bill offers the potential to generate a step change in the provision of sign language courses for families. For example, personal budgets may enable families to pay for this support themselves. However, while SEN reform might generate more demand for sign language courses, it really will be useless while local authorities can walk away, which is very damaging to deaf children and their families.
The Earl of Listowel
My Lords, I rise briefly to support this amendment so eloquently moved by my noble friend and to ask two questions. I support it particularly because of the work done by the right honourable Iain Duncan Smith MP and Graham Allen MP, among others, on the importance of early attachment between infants and parents. Clearly, it is crucial that parents can communicate with their young child in order to make a strong bond with them.
I particularly want to emphasise the importance of that. We may have already covered this elsewhere in the Bill, but the two questions are: how is assisting parents to communicate with their blind children dealt with and, on the broader point about all children with some disability or another, how are parents enabled to communicate with them, for instance, those with dyslexia? There may be less of an issue in those particular cases.
The point that I would like some clarity on, and the Minister is welcome to write to me on these points if he thinks that would be appropriate, is that we do not see children on their own; we see them as part of a family and a set of relationships. I imagine that has probably been dealt with elsewhere in the Bill, and I probably have not followed that part closely enough. I hope that that is helpful.
Earl Attlee
My Lords, I am grateful to the noble Baroness, Lady Howe, for moving this amendment and for continuing to raise this issue. In tabling this amendment, she is highlighting a specific need for local authorities to secure provision to support parents of children with a hearing loss. I think that the noble Baroness spoke in a recent debate in the Chamber when I was supporting my noble friend Lady Jolly. I agree that where there are identified needs, local authorities should provide communication support for parents of children with hearing loss. I recognise the importance of early access to language to help children to learn and to thrive, and it is vital that parents and families get support to communicate in those early months.
The noble Earl, Lord Listowel, mentioned the importance of early bonding between the child and the parents. I am not trained in social work, but even I understand that that is extremely important to the development of the child. If that does not take place, the development of the child will be permanently set back.
As noble Lords will note, the Bill already places duties on local authorities to identify, assess and secure special educational provision for all children and young people with SEN. This could include sign language support for those who need it. During the recent debate that I referred to, one of the issues raised was sign language training for parents, of which more later. Your Lordships may find it useful to refer to the Hansard of that debate, because I found the response of my noble friend Lady Jolly very interesting.
The Bill also requires local authorities to set out a local offer of the support that is available so that parents are aware of what is available to them. Clause 32 requires local authorities to provide parents of children and young people with advice and information about matters relating to special educational needs, which will include parents of deaf children. However, it is for local authorities to decide the appropriate way to structure that support. I can see that the noble Baroness is not entirely content with that statement.
There is already support available to assist parents of deaf children. Through teachers of the deaf and sensory support services, local authorities are providing support to parents of deaf children on communicating with their child, which can include sign language training. The Department for Education is working with the voluntary and community sector to enable local areas to benchmark the support that they provide to deaf children and to access tools and information on the most effective approaches. In particular, we are funding the National Sensory Impairment Partnership, NatSIP, to carry out a benchmarking exercise and develop an outcome framework for local authorities to assess how well they are supporting deaf pupils. They will work with sensory support services across the country in the development of a local offer for deaf, blind and multi-sensory impaired children and their parents. The noble Earl, Lord Listowel, talked about multiple sensory impairment.
We funded the development of an early support guide for parents of deaf children and the I-Sign project to develop a family sign language programme. We are funding the I-Sign consortium to build on the learning from this project and improve the availability of sign language support for parents and families. As part of this, I-Sign is testing the use of personal budgets to fund sign language.
As I have already explained, there is already support available for parents of deaf children in addition to the duties in the Bill. It will not be appropriate to have specific duties relating to specific types of need and support as this would lead to confusion and gives precedence to particular types of need over other, equally pressing types of need. With this reassurance I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Howe of Idlicote
My Lords, I thank the Minister for his considered reply. I am not entirely happy with what he said, although I was not expecting to hear a great deal of detail. He gave some moments of hope with the I-Sign consortium being funded but, as we all know, that will go only some way. I thank the noble Baronesses, Lady Wilkins and Lady Walmsley, and my noble friend Lord Listowel for their brief contributions. I cannot say that I am not going to bring the amendment back because I and others will want to think about whether there is a better way of getting rather more out of this section. This is such an important group, and their basic human rights are at least as important as everybody else’s. We need to ensure that they have the proper proportion of whatever resources are available. I beg leave to withdraw the amendment.
Earl Attlee
My Lords, I think this may be a convenient time to adjourn the Committee.