Children and Families Bill

Tuesday 7th January 2014 Lords Chamber

Report (3rd Day)

15:08

Clause 27: Duty to keep education and care provision under review

Amendment 25E

Moved by

[Baroness Howe of Idlicote]

25E: Clause 27, page 23, line 3, at end insert—
“(2A) If the educational and social care provision referred to in subsection (1)(a) and (b) is deemed insufficient to meet the needs of children and young people under subsection (2), a local authority must—
(a) publish these findings; (b) involve those consulted under subsection (3) in producing an action plan to revise the educational and social care provision referred to in subsection (1)(a) and (b);(c) review and report on progress against the action plan; and(d) revise the local offer accordingly.(2B) Regulations shall make provision about—
(a) criteria to be used by local authorities in assessing whether the educational and social care provision referred to in subsection (1)(a) and (b) is sufficient under subsection (2);(b) the information to be included in an authority’s action plan;(c) how an authority is to involve children, young people and families in the production of, and assessment of progress against, its action plan;(d) imposing time limits on implementing the revision of the educational and social care provision referred to in subsection (1)(a) and (b) that has been deemed insufficient under subsection (2A).”

[Baroness Howe of Idlicote (CB)]

My Lords, I start by re-emphasising a point that I made in Committee: that accountability is the most important aspect of the local offer, an offer that will be relied on by 1.5 million children with special educational needs. Without strong accountability mechanisms, families will have no way of ensuring that the services they need are available and it is likely that parents will continue to need to push for a statement or an EHC plan to get the support that they and their child need.

Clause 30 states that a local authority must publish comments from children with SEN and their parents about its local offer, as well as the authority’s response to those comments. I am pleased that the Government have strengthened this further with Amendment 33C, requiring local authorities to publish what action they intend to take in response to comments from parents about the local offer. However, I and, indeed, the Special Educational Consortium, which is backing this amendment, have serious concerns that the Government’s Amendment 33C has been placed in the wrong clause and will therefore fail to have its desired effect. Clause 30 refers to the local offer only as a source of information and advice and not to the provision contained in the offer, and therefore the impact of the Government’s very welcome amendment will be felt only in terms of the quality of information and advice. It is Clause 27, relating to reviewing education and care provision, that must be amended. Will the Government therefore commit to moving Amendment 33C to Clause 27 to ensure that improvements to local services are made? If they commit to doing so, this will make a huge difference and go a long way to reducing the battles that parents face. However, I fear that it will still not go far enough in ensuring that local authorities are held to account and that essential improvements to local services are made.

Amendment 25E to Clause 27 would require a local authority, after publishing comments on the local offer, to involve parents and young people in producing an action plan to revise the education and care provision outlined in the local offer, review and report on progress against its action plan and then revise the local offer accordingly, ensuring that local support was sufficient to meet local needs. This would ensure that local authorities and parents, along with other parties including school governors and children’s centres, worked together at the earliest possible stage to ensure that local provision was the best it could be, bringing about exactly the cultural change that the Government want to see. This is a vital addition to the Bill.

My key question to the Government is: exactly who will check that local authorities do what they promise to do when publishing their response and the actions they intend to take following parents’ comments about the local offer? My amendment would ensure that local authorities not only work with parents and other interested parties to develop an action plan to improve service provision in the local offer but review and report on progress against their action plans. This is exactly the robust accountability measure that will ensure that local support is responsive to local needs—something that the Government have said time and again they wish to see. At the very least, can the Government confirm that the code of practice will include further information relating to the action that local authorities will take in response to parents’ comments about the local offer so that parents and other interested parties, listed in Clause 27(3), will be involved in drawing up an action plan to improve the local offer along with the necessary mechanisms for reviewing and reporting on progress against such an action plan? I beg to move.

15:15

[Baroness Jones of Whitchurch (Lab)]

My Lords, I shall speak to Amendments 30 and 31 standing in my name and in the name of my noble friend Lady Hughes of Stretford and also to Amendment 33D standing in the name of the noble Lord, Lord Low, to which my noble friend Lady Hughes of Stretford has added her name. We also add our support to the amendment proposed by the noble Baroness, Lady Howe, and to the arguments she eloquently made in proposing it. There is a compelling case for local authorities to be expected to take action where education and care provision is judged to be insufficient and it is important that we have adequate means to address that.

Our amendments relate to Clause 30, which introduces the concept of the local offer and places a duty on local authorities to publish the local offer for children and young people with special educational needs, to keep it under review and to revise it periodically. Obviously, we welcome the principle of the local offer, as does most of the sector, but our concern is to make the local offer tangible, accessible and responsive. One concern which our amendments seek to address is that the wording of subsection (1)(a) requires the local authority to set out in the local offer only what it “expects to be available”. We believe that this wording is ambiguous and could be used by local authorities to duck out of their responsibilities to deliver a quality package of services.

Parents, children and young people have expectations that the local offer will be an improvement on what has gone before, but, understandably, they want a more formal understanding with the local authority about the service that they can rely on being provided. Many parents have spent their lives fighting for basic support for their children and are naturally suspicious of wish lists. We believe that our amendments to replace “expects to be available” with “which is available” will give those parents the added guarantees they desperately need.

When this was discussed in Grand Committee the Minister said:

“The local offer should enable local people to see what services are available, how they can be accessed, who provides them and where to go if things do not work out”.—[Official Report, 30/10/13; col. GC 612.]

We agree with that statement. That is what we are all trying to achieve and we believe that our wording is a better reflection of this aspiration than the current wording in the Bill. In Grand Committee the Minister also made the point that families need to be informed about,

“what provision the local authority expects to become available in the near future, possibly from new innovative practices”.—[Official Report, 30/10/13; col. GC 613.]

We very much welcome a culture of innovation in this sector and families will, of course, be interested in being kept informed of newly developing services. This should all be part of a greater commitment to information sharing and dialogue between families and the local authority. However, information about innovation and good practice is very different from the function of the local offer, which should be about what is available to families and what they can access now with some degree of certainty.

The Minister also drew our attention to the draft code of practice, where more detail is provided. Again, it is useful to have this additional information for parents. However, it does not answer our central concern about the status of the local offer and the extent to which it can be relied on. In fact, while the draft code of practice contains good supplementary guidance, it continues to use the phrase that the local authority should provide information about services which it “expects to be available”. Also, as we have debated before, it is important to have the fundamental principles set out in the Bill and we believe that this is a key feature which will give parents, children and young people confidence in services for the future. This is more than an argument about semantics. Our amendment will help to make the local offer a real, living commitment that will help to make the new proposals a success.

My noble friend Lady Hughes of Stretford has also added her name to Amendment 33D standing in the name of the noble Lord, Lord Low, who, I am sure, will speak on it shortly. The amendment seeks to give families confidence in the quality of the local offer by requiring the Secretary of State to lay regulations specifying the standards and quality of education, health and social care provision which local authorities must meet. These regulations would need to be approved by both Houses. In addition, it would require the Secretary of State to issue guidance on how to meet the regulations and publish information on the regulations on the department’s website. The amendment addresses the continuing concern in the sector that services across the UK will be patchy and that a postcode lottery of services will develop. Without the amendment, families will be at the mercy of local authority budgets, with all the uncertainty of provision that already occurs as a result of budget cuts, and so what starts out as a promising new regime of integrated services may quickly descend into a fight to retain any kind of minimum provision. There is the added challenge that there is little incentive for local authorities to develop high-quality provision as it will simply attract clients from other areas, letting the poorer providers off the hook.

Our amendment also addresses the knowledge gap that arises from Clause 21(1)(a), which defines SEN provision in a local area as being relative to all mainstream schools in England. However, without minimum national standards, all a local authority can do is define the offer relative to its own local provision. When we debated this issue in Grand Committee we explored whether setting minimum standards of provision might be the answer, but we accept the limitations of this solution, which is the danger that minimum standards might become the norm. Therefore, our new amendment seeks to address this problem in a different way, allowing scope for services to be different around the UK to meet local and individual needs but nevertheless requiring that they meet overall quality standard benchmarks.

These standards could provide the framework for the Ofsted and CQC inspections currently being considered by the Government and would build on the recommendations of the Ofsted study into how this can be delivered most effectively which is currently taking place. Perhaps the Minister can update us on progress in developing this suggested framework of standards. They would also be a measure against which parents could judge the acceptability of local services if they wish to challenge the provision or ultimately appeal. Therefore, this amendment is the final piece of the jigsaw which will give parents confidence in the new provision and guarantee the success of the new regime, the principles of which, as I have said, we all support.

Finally, I would like to say a few words on the government amendment in this group. In Grand Committee we raised the concern, shared by many, that the obligation on local authorities to publish comments on the local offer from parents, children and young people did not sufficiently hold them to account or require them to be responsive to the views expressed. Giving a more powerful voice to those, often isolated, individuals struggling to access services ought to be at the heart of these improvements. That is why we welcome the government amendment, which would require local authorities to publish the action they intend to take in response to the comments received. However, picking up on the theme of the amendment of the noble Baroness, Lady Howe, there is a further stage to be addressed if we are serious about making change, which is that the local authority should also be required to work with those who have been consulted to produce an action plan to address any identified failings.

It would be helpful if the Minister could explain how this additional challenge will be addressed. It may be that the requirements could be included in the regulations, but we need to be assured before we make a final decision today that the Government are addressing this issue and the concerns raised by the noble Baroness, Lady Howe.

[Lord Low of Dalston (CB)]

My Lords, I support the amendment of my noble friend Lady Howe.

I welcome the Government’s Amendment 33C, which would require local authorities to publish what action they intend to take following parents’ comments about the local offer. However, I am keen to know from the Minister what mechanisms will be in place to ensure that parents have a key role in shaping what this action to be taken by local authorities will be. The Government have consistently and rightly stated that the local offer should be responsive to local needs. Unless the Government accept the amendment of the noble Baroness, Lady Howe, to ensure that parents and young people are joint partners in developing an action plan to improve local provision, is there not a danger that the local offer will be responsive only to the needs of local authorities and not local families? While welcoming the Government’s amendment and supporting the amendment of the noble Baroness, Lady Howe, I would just ask the Minister those two questions. The second of them is really about how the Minister proposes to respond to the points that the noble Baroness, Lady Howe, has made.

I will speak mainly to my own amendment in this group, Amendment 33D, which would require the Secretary of State to make,

“regulations setting out the standards and quality of the special educational provision, health care provision and social care provision which local authorities must meet in their local offer … issue guidance to local authorities on how to meet these regulations, and … publish information on these regulations accessible to the families of children and young people with special educational needs”.

I will speak fairly briefly because we had two long debates in Grand Committee and the noble Baroness, Lady Jones of Whitchurch, has just spoken very eloquently to this amendment. I am very grateful to her for that—she made a very good argument for the case being put forward by the amendment.

As I said, we had a couple of very good debates in Grand Committee on the provisions of the Bill relating to the local offer. I moved an amendment which sparked a discussion about the kind of framework which needed to be put in place to regulate the local offers that local authorities made, to ensure that they met certain standards of consistency. The amendment took its cue from the animating principle underlying much of the legislation emanating from the Support and Aspiration Green Paper, which was that parents of children with special educational needs needed to be freed from the tangles of bureaucracy that were making it so difficult to access the services which could best meet their children’s needs. The amendment was couched in terms of the minimum standards which local authorities must meet in their local offers. The flaw in such an amendment was quickly pointed out: it could all too easily lead to local authorities simply working to the bare minimum and usher in a race to the bottom. At the same time, it provoked a bit of reaction from noble Lords who had a history in local government, who were at pains to point to all the good work local authorities do, the undesirability of constraining their room for manoeuvre too much and the need to leave them alone to get on with things. I was at pains to be conciliatory and to acknowledge that in my reply but, on reflection, I think I may have gone a bit too far.

The underlying thrust behind this legislation is the need to free families from the bureaucracy which ties them in knots and to redress the balance between local authorities and families attempting to assert their rights. I remember the noble Baroness, Lady Morris of Yardley, making the point very persuasively that, although one did not want to hamstring local authorities and unduly constrain them in what they can do, it was not wise to set up a completely new system like this without exercising a measure of central oversight. That is a very familiar distribution of responsibilities between central and local government and the education service.

My amendment is not unduly prescriptive in dictating to the Secretary of State what he must do; it merely requires that he make regulations setting out, as I have said, the standards and quality of the special educational provision, health care provision and social care provision which local authorities must meet in their local offer, issue guidance to local authorities on how to comply with these regulations and publish information on the regulations accessible to the families of children and young people with special educational needs. This is a very moderate obligation to lay on the Secretary of State and, depending on what the Minister says, I reserve the right to seek the opinion of the House when my amendment comes up as we go through the Bill.

15:30

[Baroness Eaton (Con)]

My Lords, I can understand why the noble Lord, Lord Low, tabled Amendment 33D, which would regulate the special education provision to be provided by local authorities. That sounds sensible and reassuring. However, the practicalities of regulating provision in such a way would, despite what has been said in the contributions from noble Lords, cause unnecessary restrictions on provision and prevent innovation and creativity that could bring about new and supportive services.

The duties on local authorities and other bodies to assess needs and secure provision are already set out elsewhere in the Bill. There are already some excellent examples of local offers—for example the pathfinders in North Yorkshire that worked with parents and young people to produce an interactive map and colour-coded diagram, including a version for children and young people, showing precisely what the local offer would be.

Funding allocated to councils by the Government for education, including SEN provision, can vary greatly, even for similar or neighbouring local authorities. That is one reason why provision may vary between areas. We know that the new national funding formula will not be introduced until after the next election. SEN provision also varies from one local authority to another because of the nature of the population. There are higher levels of need in some areas, which require the local authority to provide more specialist services than in others areas that may have no such requirements or quite different needs.

Defining in law a minimum level of provision may actually mean that resources in some authorities are diverted from other areas of special need simply to meet a legal requirement. Health needs also differ between local areas. That is reflected in the local joint strategic needs assessment, which is based on the needs of the local population. Surely the key purpose of the local SEN offer should remain as a source of information to parents and young people, developed by local authorities working with them to reflect their choices and preferences.

[Lord Storey (LD)]

My Lords, I agree with the noble Baroness, Lady Jones, that parents have fought for years to get resources and what some might call justice for children with special educational needs. That is why the Bill is so important: it is a progressive piece of legislation that we can all be proud of. It will mean that, for the first time, local authorities have to spell out clearly and precisely what is available in their area and how that can be accessed. As we know, people with special educational needs will, for the first time, have a plan that joins up health, education and social care.

The giveaway is in the title: “local offer”. It is not a national offer but a local one. I suppose the Government could have said, “Nationally, we have decided that this is what you will do”, but I am quite sure that there would have been screams from local authorities that this was national government again dictating exactly what should happen. The local offer is important.

I was grateful for the comments of the noble Lord, Lord Low, in Committee but I still have grave concerns about creating a minimum requirement. We have seen what happened in care for the elderly: if you have a minimum requirement, councils under financial pressures jettison what they do not need to provide. If you have a minimum offer in terms of special educational needs, you will find that those authorities that my noble friend Lady Eaton so eloquently described, the ones that are progressive and look at new ideas, will say, “Well, if there are some savings to be made, we do not need to do that”. So I am not in favour of a minimum offer.

I am in favour of what the Government have reflected on and come back to at Report with Amendment 33C. Let us never underestimate the power of local people. If the local offer is not meeting the local requirement, you can bet that local people will say that they want something extra. Cases will make that happen. That is why the government amendment is so important. Let us celebrate where we are at so far, because it is important for children with special educational needs.

[Baroness Morris of Yardley (Lab)]

My Lords, I support the amendments and, in particular, will comment on Amendments 30, 31, and 33D.

The amendments tabled by my noble friend Lady Jones, which deal with the “expects to be” versus “which is” dilemma, just make sense, as I do not think that anyone here would not want parents to know what is being offered rather than what might be offered. The Government’s concern appears to be that something innovative might happen during the year that could be added to the offer, but the Minister might reflect that, if the offer was a living document so that it could be updated as an innovation came through, was proven to work, accepted as best practice and added to the local provision, in a digital age it would not be difficult to update the offer. The notion of “which is” gives far more certainty to users of the service than the words “expect to be”. In that respect, I very much support those amendments.

I just want to comment on the amendment of the noble Lord, Lord Low. I see both sides of this argument. We want local authorities to be free to innovate, to reach for the stars and to be the best they can, and we do not want the local offer in every local authority area to look exactly the same regardless of where you are in the country. Neither do we want to give permission to local authorities to go for a basic minimum standard. I accept the concerns laid out by the noble Baroness, Lady Eaton, and the noble Lord, Lord Storey, but we are still left with a problem.

The code of practice talks a lot about the quantity that should be in the local offer. There is a whole list of things that the code of practice guarantees will be there. What is missing from the whole debate is something that guarantees quality. Amendment 33D attempts to do that, and I want the Minister to respond to it. None of us wants poor quality, and I do not think that we would be in politics and would certainly not be legislators if we did not know that we have to ensure quality. It does not happen by itself or through a free-for-all, and it will not happen if we just leave it to local authorities to do their best. We want more than that. Minimum standards are not in the amendment. I do not want to fetter those local authorities who will provide very well; I want to protect those people who live in areas where the local authority does not do very well. I am concerned about how we protect people against poor provision falling below those minimum standards.

Normally, government takes one of three actions. It leaves it to the market—the noble Lord, Lord Storey, mentioned just now that if people do not like it, they will complain and changes will be made. I do not think that that will happen with the local offer. The only way that the market usually works is if people are free to go elsewhere. Then the poor provision that they did not want withers on the vine, vanishes, closes down and gets off the playing field. That is not what we want here. We do not want a local offer to be squeezed out of the market so that people have to go over the local authority borders. I cannot see how the market works as a regulator of standards for the local offer.

Secondly, we inspect. That is another way to guarantee quality. I would be grateful if the Minister would give us an update on where the department is with Ofsted inspecting the local offer. In Committee, he undertook to write to me, and I must admit that I am not sure whether that letter has been sent; I have not seen it. I would accept it if the Government have decided to inspect the local offer to make sure that people are protected against poor provision.

If they do not want to do that, the next action is regulation. Amendment 33D, as tabled by the noble Lord, Lord Low, would put in regulation to protect people against poor standards. It really does not matter whether it is inspection or regulation—but I do not want it to be the market, which I think is where the Government are headed with this, because that will not work. We have to get the balance right between protecting people in areas where a local authority does not deliver the goods and leaving local authorities that are good, free to excel.

This is not just about safeguarding against low-quality provision: the Government should, equally, be incentivising innovation and high standards. If you only dampen down by inspecting, you will not get the high standards and innovation to which the noble Baroness, Lady Eaton, referred. We have had so many decades of experience in the delivery of public services, and there are good ways of incentivising innovation, rewarding high standards and making sure that those high standards are spread to include everyone else. That is my ideal— to do both. I think that we will see the good quality provision in the local offer to which the noble Baroness, Lady Eaton, referred, and that we will find ways of making sure that other local authorities know about it. Equally, for balance, we need something to set a basic standard below which local authorities’ local offer should not fall so that as regulators and legislators we can say that everybody, no matter where they live, is protected from a poor standard of provision. In that respect, I very much support the amendments that we are considering in this group.

[Baroness Wilkins (Lab)]

My Lords, I, too, support all the amendments in this group. If the Bill really is to improve the position of families of children with SEN in their struggle to give their children the best start in life then it must provide some certainty. Assurances of the provision which a local authority expects to be available are useless if they turn out to be just warm words. Parents need to know what is available, and families must know that there is a benchmark below which standards are not allowed to fall.

Let us not forget that the vast majority of people who find themselves as the parent of a disabled child will have no previous knowledge of the world of special educational need. They will not know what services that their child might need should be available and will have no knowledge of the structure of provision or the standards that they should expect. They will have to learn all of this at a time of great stress and amid all the other demands of family and work life. On Amendment 25E, I particularly support the comments of the noble Baroness, Lady Howe, on the importance of accountability regarding the local offer. As the Education Select Committee said, the importance of the local offer cannot be overestimated.

Given that Clause 30 relates to the local offer as an information offer and not to the actual provision contained in it, can the Minister explain exactly how local authorities will publish their response and what action they intend to take following parents’ comments about the local offer? How will that actually lead to improvements to the services being made? Unless the Minister agrees to move the Government’s Amendment 33C to Clause 27, what do the Government expect local authorities to do with comments from parents about service provision? Is there anything in the Bill to ensure that these comments will be fed into the review of service provision referred to in Clause 27? Moreover, will local authorities clearly explain to parents that they can comment on the local offer only as a source of information and not the provision itself?

As the noble Baroness, Lady Howe, stated, the local offer will be relied upon by 1.4 million children with SEN, namely those without a statement or an EHC plan. Can the Minister therefore clarify, if the child does not have a plan and a local authority publishes a response and follow-up action which was unsatisfactory to parents, are there any further mechanisms in place to ensure that parents’ concerns are addressed?

By the Government’s own figures, the total cost to the taxpayer of parents taking cases to an SEN tribunal is more than £30 million a year. Given this substantial cost, is it not imperative that disputes between parents and local authorities are resolved at the earliest possible opportunity? Amendment 25E, which requires parents, local authorities and others to work together and develop an action plan, would enable this to happen, and I urge the Government to accept it.

15:45

[Baroness Perry of Southwark (Con)]

My Lords, I can imagine myself as a parent of a child with special educational needs; I have listened to the debate trying to put myself into that person’s shoes. I can imagine taking my child along to discuss with the local education authority what provision could be made and being told, “I am sorry that you may want this, that and the other, and your child may have that particular set of needs, but we’re meeting the minimum standards set down. They do not happen to suit your child, but I’m afraid they are all that we can afford”.

My noble friends Lady Eaton and Lord Storey passionately described the dangers of minimum standards and the stifling of any innovation or adaptability to the local needs of parents and their children. They also described the danger of saying, when money is tight, “We are sorry we can’t help those other parents and children, but we are meeting the minimum standards. That is the regulation, so that is all there is”. You do not encourage response to people’s needs or collaboration between a local authority and the parents and children in its region by regulation and by national minimum standards. You encourage it by leaving local authorities and parents free to talk together.

I note that the Bill carefully states that the comments received from parents and from the local community must be published every year. That is a strong system of accountability, and is much better than trotting out a bit of inspection from time to time and issuing that report. To coin a phrase, it seems a triple lock if parents’ comments about the provision that they receive from the local education authority, with their own deep and often tragic experience of children with special educational needs, must be published in a form that all can see. Local authorities will be required to respond to local needs, and it gets us away from this dreadful idea: “A minimum standard is all that we can afford and therefore, even if it does not suit your child, that is all that you will get”.

[Baroness Sharp of Guildford (LD)]

My Lords, I return to the introduction that the noble Baroness, Lady Howe, gave to Amendment 25E and the issue of accountability. Government Amendment 33C is good so far as it goes, but it puts the onus on parents and young people using the service to police the sufficiency of the local offer. Perhaps my noble friend the Minister could correct me if I were wrong, but so far as I know there is no obligation on local authorities to publish the findings of their own reviews, which, as was emphasised by the noble Baroness, Lady Howe, they are obliged to make under Clause 27. Therefore, there is not the obligation to proactively improve their services that might arise from looking at whether their own reviews were sufficient, and acting on that. That picks up the point made by the noble Baroness, Lady Morris, that there are ways and means whereby innovation comes organically and internally. Equally, she made the point that for most parents there is not the opportunity to move authorities: whether they like it or no, this is the authority that they have to work with.

Again, I pick up the point made by the noble Baroness, Lady Howe, that, when we are talking about special educational needs, we do not mean only the few who have statements and will have the EHC plans now—about 3% of pupils. Something like 15% of pupils are regarded as having special educational needs and are treated under school action and school action plus.

It is now the schools’ responsibility to meet the needs of these pupils. We shall be talking later about the training that is necessary for SENCOs, and so forth. Most schools rely very much indeed on local educational specialists being available. One of the problems with the situation at the moment is that if there is no follow-up on whether or not there is a sufficiency of provision, there is a great danger that local authorities, whose finances, as we know, are being squeezed at present, will not find it necessary to provide outside the needs of those who actually have EHC plans, and that specialists in language, communication and behaviour will not be available to schools for them to be able to recruit to help them with the problems that they meet.

So I am somewhat concerned. As I say, the government amendment is good so far as it goes, but it is unfortunate that it does not follow through to requiring action on the reviews that the local authorities themselves have to make of their own provision.

[Baroness Howarth of Breckland (CB)]

My Lords, I support the noble Baroness, Lady Sharp, in what she was saying. I was rather taken by the government amendment because of its involvement of parents, children and young people themselves, but I could not see the follow-through. What we are looking for is an interrelationship between the legislation, the code and how it is applied and then how that is reported back, so that you have a virtuous circle and you can measure against what you are attempting to do.

In order to do that, you have to have absolute transparency. That is why I am also concerned about the phrase,

“it expects to be available”.

Unless families know with absolute clarity what is available and have some idea of what the local authority might be planning to make available—that might be what the “expects” is trying to achieve—how can they be engaged in a debate with the local authority in some sort of forum to move things forward in an innovative way? Being involved in two charities that work nationally, I know how very different the provision is across the country, but I still have grave anxieties about setting minimum standards, having also worked in a local authority that was strapped for cash in the 1970s, where we looked for any area of legislation where we could move back and save money. At this time, as I have said several times in this debate, we have to be absolutely open with families about what is and is not available. It is only if they are absolutely clear about that within the constraints of the finances that are available that they will be able to campaign, if you like, for an alternative that would better meet their needs. I encourage the Minister to look again at the phrase, “expects to be available”.

I find it far more difficult to know how I would vote on any of the other amendments, recognising the sheer complexity of the discussion that we have been having. I happen to have more faith in local authorities, and believe that if they have the opportunity and the resource they will do their best for the people that they want to serve.

[The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)]

My Lords, this is our first opportunity after the Recess to consider Part 3 of the Children and Families Bill. This is a good time to reflect on how far we have come in taking forward our shared ambition of a new framework for supporting children, young people and their parents—one that raises aspirations, improves outcomes and enables young people to prepare successfully for adult life.

On 17 December, the House passed a number of government amendments responding to important issues raised by noble Lords in Committee. These amendments will include disabled children and young people without SEN in key provisions of the Bill and ensure that local authorities exercise their functions with a view to securing that they identify both children and young people with SEN and disabled children and young people, and that health bodies inform the child’s parents and local authority where they are of the opinion that a child under compulsory school age has or probably has a disability. Local authorities will exercise their functions with a view to ensuring the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people where they think this would promote their well-being, including in relation to their participation in education, training and recreation. Local authorities and their partner commissioning bodies making joint arrangements for the commissioning of education, health and care provision for children and young people with SEN will be amended to include disabled children and young people. Local authorities will keep under review all the education and training provision and social care provision for disabled children and young people and consult disabled children and young people and their parents when doing so. Local authorities will arrange for disabled young people and the parents of disabled children to be provided with information about matters related to disability—I have also tabled an amendment, which we shall come to later, to extend the requirement to cover children themselves as well as their parents—and local authorities will include disabled children and young people both in relation to the information to be published and in developing and reviewing the local offer and in publishing comments.

The definition of disability applied in relation to these government amendments is that in the Equality Act 2010. Since I have already given an undertaking to strengthen the links to the Equality Act duties in the SEN code of practice, they will sharpen the focus on those duties considerably. The code of practice is, of course, statutory and the guidance it provides cannot be ignored.

These changes followed a government amendment in Committee requiring schools to make arrangements for supporting children with medical needs, including children with long-term medical conditions, about whom noble Lords had particular concerns. These changes have improved the Bill and will improve provision for children, young people and families.

We have now had an interesting debate on accountability for services and the local offer. It is an important issue, and one on which a range of views was expressed in Grand Committee. I would like to thank the noble Lord, Lord Low, and the noble Baronesses, Lady Howe, Lady Hughes, and Lady Jones, for their contribution today and for bringing their experience into this debate.

I think it is important at the outset to reflect for a moment on the purposes of the local offer and on how the provisions in the Bill, the draft regulations and the draft SEN code of practice have been developed. The Lamb inquiry highlighted the need for parents to have clearer information about the support available and how decisions are made. Brian Lamb was clear that greater clarity and transparency reduces conflict and builds trust. That is why the SEN Green Paper proposed the local offer.

Since the Green Paper, we have worked with our local pathfinders and others to develop the statutory framework for the local offer. From this work, we know that local services will be much more responsive to local needs if local offers are developed with children and young people and their parents. This is precisely what we provide for in the Bill.

I appreciate the concerns that have prompted Amendment 25E, which was tabled by the noble Baroness, Lady Howe, on the review of education and care provision. I understand why she is seeking the publication of an action plan if the education and social care is deemed insufficient. I also understand her wish to ensure that local authorities address any shortcomings, but I think that Clause 30 rather than Clause 27 is the right place to address these issues, and I will say more about this shortly.

The provisions in the Bill will ensure that children and young people with SEN and disabled children and young people and the parents of children with SEN and disabilities are involved in improving provision where it is insufficient. Local authorities must consult and involve them when reviewing local provision, but I believe that the detailed mechanics of how local authorities work with local people and those providing services for them to improve provision are best left to the local authority—I take the point the noble Baroness, Lady Howarth, has just made—if we are really to secure services that are responsive to local needs.

As many noble Lords have mentioned, there is a government amendment in this group—Amendment 33C —which I would now like to explain. Local authorities must publish comments from children and young people with SEN and disabilities and parents of children with SEN and disabilities about the local offer, including comments about the quality of the provision available and about any provision that is not available. We make it clear in the draft SEN code that when local authorities publish their response to comments they should include the action local authorities propose to take. However, in view of the concerns raised in Committee I have tabled Amendment 33C to make this explicit in the Bill.

This amendment will add a requirement to Clause 30(6) to make it absolutely clear that local authorities cannot simply publish their response to comments but then ignore them. They must say what action they intend to take. This will provide even greater transparency and help to improve local accountability. As with every other part of the development of the local offer, children, young people and parents will be involved in discussions with local authorities about the action they propose to take.

16:00

The noble Baroness, Lady Howe, asked whether Clause 30 was the right place, as opposed to Clause 27. Clause 27 is only about reviewing provisions and consulting people whereas Clause 30 provides the impetus to reflect provision in a local offer and to shape it in response to the views of children, young people and parents. As I have said, we feel that substantive engagement with children, young people and parents is the way to do this. However, we would be happy to make stronger links in the SEN code of practice between the review duty in Clause 27 and Clause 30 on the local offer. In answer to the point made by the noble Lord, Lord Low, I can also confirm that we expect local authorities to develop their action plans with parents, children and young people, and we will make that clear in the code of practice.

Many noble Lords have spoken to Amendments 30 and 31. I thank the noble Baronesses, Lady Hughes and Lady Jones, for tabling these amendments and for giving us the opportunity to consider further the aims of the local offer. Our aim in requiring local authorities to publish the provision they expect to be available in and outside their local area is to make the local offer as relevant and useful to families as possible. It will not be so informative if it can only set out what is already available rather than what is expected to be available. If, for example, a new specialist provision was due to open in an area, it would be useful for parents and young people to know about that in advance. We would not wish to restrict local authorities to including this facility in the local offer only once it had already opened.

Often, the things that are most important to parents are provided by small voluntary sector groups or informal arrangements such as a trampoline club on a Saturday morning for a child with autism, a local club providing activities for disabled children and their siblings or a circle of friends group for disabled young people set up by local young people. The services may be expected to be available, but this cannot be guaranteed. Requiring local authorities to publish only what is available may deter them from including such provision in the first place and children and young people will miss out on valuable opportunities.

I assure noble Lords that we intend the local offer to be robust and it was always intended that it would cover what is available. We want parents and young people to have confidence in the information it contains. In answer to the point made by the noble Baroness, Lady Morris, and other noble Lords, for the avoidance of any doubt we will amend the SEN code of practice to make it clear that the duty on the local authority to set out what it “expects” to be available is not about what the local authority would like to be available but what it expects actually will be.

Many noble Lords have spoken to Amendment 33D on quality standards for the local offer. I firmly believe that further prescription of additional legal duties and setting national quality standards in law would mean central government deciding what is best rather than local parents, children and young people, and that this would critically undermine the value of the local offer. Since the proposal for a local offer was prompted by the Lamb inquiry it might be helpful to reflect on Brian Lamb’s views. He said:

“I would be very reluctant to create a legal duty to provide whatever is included in the local offer. What you would get is very defensive practice from local authorities. They will be so cautious about what is included and the local offer will be stripped back to the absolute minimum they can commit to and avoid legal challenge. The local offer will become worthless and you’ll lose the prize of collaboration and openness with parents that it’s trying to secure”.

Brian Lamb’s view is that real change comes when local authorities engage fully with children, young people and parents. We share that view; we have seen it in operation in the pilots. That is why we will be looking for evidence of such engagement in the information we receive from local authorities on their approach to the reforms. We will also look at how we might strengthen the code of practice further in this regard.

We have already set out a clear common framework for the local offer in the Bill, particularly the draft regulations and the draft code of practice. This will ensure consistency across local authorities. We heard from my noble friend Lady Eaton and the noble Baroness, Lady Howarth, in Committee and again today, and today from my noble friend Lady Perry and the noble Lord, Lord Storey. All stressed the dangers of a minimum-standards approach and urged us to resist the temptation to place further prescription on local authorities. I agree with them and I am clear that doing so would work against openness and collaboration, and stifle creativity.

I understand why the noble Lord, Lord Low, and the noble Baroness, Lady Hughes, have tabled Amendment 33D seeking regulations prescribing quality standards for the provision in the local offer. However, it is difficult to see how quality standards could be developed for the local offer since it will contain a wide range of services and support provided by a wide range of local providers, including not only local authorities but organisations from across the statutory and voluntary sectors. How would any standards be meaningful without covering the full range of provision and without taking account of local views, local needs and local circumstances? There are fundamental differences between institutions regulated by statute, such as children’s homes, where it is necessary to set standards of care for children and young people to which all institutions must adhere, and the wide range of services to be embraced by the local offer from schools and colleges to small local voluntary-sector groups. We do not believe that standards—minimum or quality standards—are feasible for, or consistent with, the purposes of the local offer, which are to provide children, young people and parents with easy access to information about provision, and the opportunity to be directly involved in shaping that provision.

It is also important to remember that many services in the local offer will already have statutory duties and be subject to statutory regulation—for example, schools, including non-maintained special schools and independent schools. Standards of one kind or another will also be in place for other areas such as fostering. It would not make sense to overlay existing arrangements with national prescription through the local offer. Instead, we want to encourage local engagement and innovation.

In our local pathfinders, the freedom to innovate is already paying dividends. The SE7 pathfinder developed its local offer specifically to answer the questions local parents and young people want to have answered, not to fit a predetermined regime imposed by the Government. As my noble friend Lady Eaton mentioned, North Yorkshire has been developing an interactive site map for the local offer, to improve access to information about available support in a simple and direct way that responds to local views. Leicester, through its parent carer forum, Big Mouth Forum, has set up pop-up shops in local shopping centres for families and young people to access useful information and ask questions about the local offer. This has also allowed Leicester City and the Big Mouth Forum to gather valuable feedback to inform continued development of their local offer. When I visited the pathfinder at Greenwich, Cherry Orchard School gave a presentation on how the local authority had worked directly with local schools from the outset to set out a clear school offer. There is a real sense of shared objectives, joint ownership and co-operation in these examples. We want to encourage this to flourish, not to overburden local agencies with further regulation.

At an open meeting for Peers with some of the pathfinders before Committee, noble Lords heard how, by working directly with parents and across education, health and social care provision had been developed that better met children’s and young people’s needs and was more cost effective, making the most of resources. If we had a tick-box approach to the local offer we would lose this collaboration and creativity, and families and children would lose out.

The noble Baroness, Lady Jones, asked for more information on the Ofsted study. The noble Baroness, Lady Morris, was quite right that when I wrote to Peers about SEN issues following Committee, I promised more detail on the study. Although we will come to that in more detail in a later group, I will give an update now. The Ofsted study will focus on the extent to which local areas ensure that children and young people with SEN and those who are disabled are identified and their needs met. It will look for improved outcomes, and at the satisfaction of parents and young people. It will establish a baseline from which to evaluate progress in implementing the reforms; provide guidance to local authorities about the development of effective practice and advice about aspects requiring further development; and consider how, if required, effective accountability could take place.

The study will consider how local authorities identify and assess social care needs and will ensure that those needs are met. It will look at how local authorities work with clinical commissioning groups to identify and commission the range and sufficiency of specialist services required to support the needs of children with and without EHC plans, and will evaluate the effectiveness of these services. It will also consider arrangements for personal budgets, transition to EHC plans, and how school and college inspection and other inspection activity could provide ongoing information about the effectiveness of the local area’s arrangements. This will be a comprehensive study. Should Ofsted recommend that an inspection framework is needed we would, of course, take that very seriously. If it does not make such a recommendation, we will consider what further action is necessary.

The noble Baroness, Lady Wilkins, asked about local authorities publishing their responses. The Bill requires local authorities to publish comments about their local offer so that parents and others can see whether their views have been taken into account. We will say more on that in the SEN code of practice, but we still do not wish to be too prescriptive.

I hope that I have been able to reassure noble Lords that appropriate measures to improve transparency and accountability for the local offer will be established by the provisions in Clause 30, the common framework created by the regulations and the guidance in the code of practice. Just as amendments made earlier on Report have improved the Bill, government Amendment 33C will help to reinforce accountability and encourage provision that responds to local needs by ensuring that local authorities make it clear what action they intend to take in response to comments from children, young people and parents. In view of what I have said today I urge noble Lords not to press their amendments.

[Baroness Howe of Idlicote]

My Lords, first, I thank everyone who took part in this extremely interesting debate. It was at least as interesting as the debate on these subjects in Committee. I should have said at an earlier stage that I had a lot of sympathy with the other amendments in this group, and still do. On my own amendment, I have to admit that I am rather sorry that the Minister does not think that agreeing my amendment to Clause 27 would be a good thing, not least because that would give a lot of authority to the accountability of parents, who could see that what had been agreed between them and their local authority in the discussions they had had would be provided to a high standard. My own amendment was rather more probing, even at this stage, so I shall not take it further. However, if other Members who have spoken to their amendments in this group wish to press them to a Division, I would have considerable sympathy with what would be proposed. I beg leave to withdraw my amendment.

Amendment 25E withdrawn.

16:15

Amendments 25F to 25K

Moved by

[Lord Nash]

25F: Clause 27, page 23, line 5, leave out paragraph (a) and insert—
“( ) children and young people in its area with special educational needs, and the parents of children in its area with special educational needs;( ) children and young people in its area who have a disability, and the parents of children in its area who have a disability;”

25G: Clause 27, page 23, line 17, after “by” insert “—
(i) ”

25H: Clause 27, page 23, line 18, at end insert “, or
(ii) children or young people in its area who have a disability”

25J: Clause 27, page 23, line 20, after “to” insert “—
(i) ”

25K: Clause 27, page 23, line 20, at end insert “, or
(ii) children or young people in its area who have a disability”

Amendments 25F to 25K agreed.

Amendment 26 not moved.

Clause 28: Co-operating generally: local authority functions

Amendment 27 not moved.

Amendment 27A

Moved by

[Lord Nash]

27A: Clause 28, page 24, line 16, at end insert—
“( ) a person in charge of relevant youth accommodation—(i) in which there are detained persons aged 18 or under for whom the authority was responsible immediately before the beginning of their detention, or(ii) that the authority thinks is accommodation in which such persons are likely to be detained;”

[Lord Nash]

My Lords, I rise to move the group of government amendments starting with Amendment 27A. These amendments will strengthen provision for children and young people with special educational needs in the youth justice system. Provision for young offenders has been the subject of considerable debate during the passage of this Bill, both in this Chamber and in the other place. This is an issue that we must get right. Evidence suggests that nearly one in five young people in custody has a statement of special educational needs. I offer my sincere gratitude to the noble Lords who have pursued this matter, particularly the noble Lord, Lord Ramsbotham. I have benefited considerably from his expertise in this area, and I pay tribute to his tireless efforts to secure better outcomes for those with SEN in custody.

I also offer my thanks and appreciation to the noble Baroness, Lady Howarth, and my noble friends Lord Addington, Lord Storey and Lady Walmsley, all of whom have contributed valuably to this discussion. I have considered all representations on this issue very carefully, and I am now pleased to bring forward a series of amendments that will considerably strengthen protections for this vulnerable group.

The noble Lord, Lord Ramsbotham, has tabled Amendment 50, which I support, removing Clause 70 of the Bill, which currently disapplies Part 3 of the Bill to children and young people in detention. The Government’s amendments would replace Clause 70 with new provisions after Clause 65, which would enable education, health and care assessments to take place for a detained child or young person; require home local authorities and health service commissioners to use their best endeavours to arrange the special education and health provision specified in a plan during the period in custody; and require relevant youth custodial institutions—that is, young offender institutions, secure children’s homes and secure training centres—to co-operate with the home local authority when arranging support for young offenders with SEN. These changes will ensure that needs are identified and assessed at the earliest opportunity, that the best possible support is provided to young people in custody, and that there is a single point of accountability before, during and after their period in detention.

The first clause affected by this group of amendments is Clause 28, hence our consideration at this time. However, in the interests of clarity, I will firstly explain the substantive amendments that we would introduce after Clause 65. The point at which a child or young person is first detained is a crucial opportunity to identify special educational needs. Amendments 47B and 47C would allow the custodial institution, and the detained person or their parent, to request a full, statutory education, health and care assessment from the detained person’s home local authority. Under our amendments, a home local authority must also determine whether to conduct an assessment when a detained child or young person has been brought to its attention by someone else—for example, a professional working with the child or young person. This will support early identification of needs; it will also make best use of the time that a young person is in detention so that an assessment can get under way and support be put in place immediately upon release.

Amendment 47D would extend the right to appeal to a detained young person or a detained child’s parent when they were unhappy with a local authority decision not to carry out an assessment or a decision not to make provision following an assessment.

Amendment 47E would require a child or young person’s home local authority to use its best endeavours to arrange the special educational provision specified in the EHC plan while they are in custody. This is a strong and robust statutory duty, requiring the home local authority to do everything in its power to arrange the specified provision, or provision corresponding as closely as possible to it, or other appropriate provision while the individual is detained. Placing this duty on the home local authority will provide continuity and stability that is not present under existing arrangements. It will significantly improve accountability and ensure that, wherever a child or young person is detained, there remains a single point of accountability and a single contact for their families. It also creates a strong incentive for the home authority to arrange the best possible provision, as it will remain responsible for that child or young person throughout their period of detention and afterwards when they return home.

Amendment 47E would also create a parallel requirement for a detained child or young person’s health services commissioner to use its best endeavours to arrange the healthcare provision specified in an EHC plan. Where a child or young person is detained in custody, the relevant health services commissioner would be NHS England. This is a new duty, which would require the health service commissioner to do everything in its power to arrange the specified provision, or provision corresponding as closely as possible to it, or other appropriate provision while the individual is detained.

Amendment 27A to Clause 28 and Amendments 33HA to 33HK to Clause 31 would require relevant secure institutions—young offender institutions, secure children’s homes and secure training centres—to co-operate with the local authority. These amendments will require governors of young offender institutions or those in charge of other establishments in the youth secure estate to work with local authorities to deliver the best possible support for those in custody. These new statutory requirements will give local authorities the backing they need to ensure that custodial institutions play their part. This also reflects the Government’s ambition to place education at the heart of youth detention, set out in the Transforming Youth Custody consultation paper.

In addition to these substantive changes, we have also made a series of technical supporting amendments to Clauses 36 and 48, and to Schedule 3. These supporting amendments also include adding a new clause, “Application of Part to detained persons”, which includes a regulatory power to apply further provisions to detained people. These regulations, along with a revised section within the code of practice, will allow us to set out more detail about how we expect these new duties to operate in practice, and the relative roles and responsibilities of each party.

Amendments to Schedule 3 make consequential amendments to the Education Act 1996 to reflect the fact that these new provisions would replace existing provisions in England, but not in Wales. The Government, in consultation with the Welsh Ministers, would have the power to amend provisions by regulation. This package of amendments represents a much more robust statutory framework for detained young people, which responds to the valuable contributions and issues raised by noble Lords, for which, as I say, I am extremely grateful. I beg to move.

[Lord Ramsbotham (CB)]

My Lords, I begin by thanking the Minister for his courteous words in his introduction. I feel that we are almost there on children in detention, but not quite. I fear that some work remains to be done to ensure that the intent outlined in the Government’s amendments is brought to pass. I am very grateful for the many meetings and discussions which have resulted in the amendments that the Minister outlined, which make my Clause 70 stand part debate irrelevant. However, both as a former soldier and Chief Inspector of Prisons, I admit to remaining unease, fuelled in particular by proposed new subsection (4) of Amendment 47E, which requires a home local authority to,

“use its best endeavours to arrange appropriate special educational provision for the detained person”.

Those words seem far too weak to ensure that anything actually happens.

I refer to the intent behind my Amendment 49, which—despite much of the content having been, like my stand part debate, made irrelevant by the government amendments—remains very much extant in intent. To me, “best endeavours” is too weak because it leaves too much open for too many individuals to interpret to allow consistent provision of what is intended. Therefore, I plead guilty to falling back on a concept that underpins consistent provision of what is intended in the Army, namely duty. In the long-term interests of young people with special educational needs, quite apart from the best interests of the country as a whole, I can see no reason why, rather than leave such provision to chance, a duty should not be put both on a local authority to arrange that provision be made for an EHC plan to be continued in custody, and on places of detention to deliver what is required in such a plan. That is what it appears that the Government intend, because proposed new subsection (1) of Amendment 47C states that a home local authority must secure that an EHC plan is prepared for a detained person. Unfortunately, though, as I have bemoaned on many previous occasions, such an intent is unachievable because the Ministry of Justice cannot guarantee to deliver what is arranged, prepared or required.

Unlike any other operational organisation such as a school, hospital or business, the Prison Service makes no one responsible or accountable for the treatment and conditions of any group of people in custody such as women, children or young people. Not only is the governor of any place of detention not bound to continue any practice that was in place when he or she took over, but alone determines what is or is not appropriate and will or will not be provided. Having campaigned unsuccessfully for 19 years to have this changed, and having seen far too many promising initiatives and developments dropped—wholly wrongly and unnecessarily—I suggest that if the Government mean what appears to be the intent of this group of amendments they must do something about the wording in proposed new subsection (1) of Amendment 47C and proposed new subsection (4) of Amendment 47E because, as set down, they are incapable of securing anything. I put it to the Minister that neither the Government nor any local authority should feel comfortable that the Ministry of Justice at present lacks the means of ensuring EHC plan provision in places of detention. Therefore, not least to ensure the credibility of government legislation, he should be seeking other means of securing it.

I turn to the code of practice, which has been mentioned many times during the passage of the Bill and is currently out for consultation. At present, certainly to a lay man such as me, the code appears to be a vast document, full of “musts”, without any specification about who is to deliver them or oversee their provision. The Minister has often emphasised the store the Government set by the code, and I therefore ask him whether he sees it as the vehicle by which the problem I have outlined is to be remedied. If he does, I ask him whether he will reconsider the wording in the government amendments and tell the House, probably at Third Reading, exactly how the code of practice will be worded so that provision of EHC plans is secure. I understand that NHS England is responsible for contracting provision of the healthcare part of any plan from an appropriate local provider, but I would be grateful for information on how exactly that is to be secured. I use the word “security” deliberately because local authorities, which are responsible for the continuation of any provision after the release of anyone from detention, will have a vested interest in the quantity and quality of the provision of what they are told that they must secure, but over whose provision they have virtually no control. In other words, as I said at the start of my contribution, we are nearly there but I suggest that we need one last shove before we can feel certain that provision of what the Government want is secure.

16:30

[Baroness Warnock (CB)]

I support everything that my noble friend Lord Ramsbotham has said. This is an enormous opportunity and it would be disastrous if the Government did not seize it. It has long been an outrage that there is a large number of young people with special educational needs in places of detention. Nobody disputes the evidence that there is a huge number of such young people, and this is an opportunity to remedy the neglect that these children have had. I entirely agree that the present wording is such that local authorities may very well make no changes whatever, and the Ministry of Justice has no power to compel governors of such places to do what urgently needs to be done. I do not think that there can be any dispute about that, and I implore the Minister to come back with wording which is a great deal tighter and which will make the change that we all know has needed to be made for a long time.

[Lord Storey]

My Lords, we all know that 70% of these young offenders have special educational needs. We also know that 10% or 20% of them have statements. We know, too, that a huge number of them—I do not know the exact figure but 70% or 80%—will go on to reoffend. Therefore, it is really important that this group of young people gets the best possible special educational needs support. When this Bill first came out, I found it unbelievable that EHC plans would not be going with these young people into their institutions.

One of the hallmarks of the Bill has been the Minister’s desire to discuss, consult and listen to what people say, and I pay tribute to him for doing that. During the discussions on this matter, it has become clear to all of us that the number of young people in these institutions is declining, as is the time that they spend in them—thank goodness. The practicalities of getting their EHC plans to go with them becomes very difficult, particularly if you are talking about different local authorities, and therefore what the Minister is proposing seems sensible.

I also pay tribute to the noble Lord, Lord Ramsbotham, for his remarkable knowledge in this area. I agree with him, and I hope that when the Minister replies he will be able to refer to the concern that a lot of us share about the words “best endeavours”. Sadly, the justice system is not an educational system, and “best endeavours” is too wide a hope—for example, “I use my best endeavours to get up early in the morning but I don’t”. I hope that noble Lords can see the point that I am making. The use of this phrase is a recipe for not doing the sorts of things that we in this House want to see provided for these young people. Maybe the word to use is “responsibility” or “duty”—I do not know—but I hope that the Minister will indicate that he will look at this again and come back with exact wording to make sure that the special needs provision that we all want to see is provided.

[Baroness Howarth of Breckland]

My Lords, I shall be brief, as I usually am, but I want to say two things. One is that when I read these amendments my heart leapt. I thought that if only the home local authority could be made responsible for every young person in secure provision on this basis with a proper plan for seeing them through—as I remember, and as I am sure my noble friend Lord Laming will remember, was the case in children’s departments, where someone was responsible for a young person, with a plan, wherever they were—that would be absolutely wonderful. Of course, at that time there was much more focus on education in the institutions, as childcare establishments, than there is in some of the more penal establishments that exist today.

So I was utterly delighted and was going to congratulate the noble Lord, Lord Ramsbotham, whose tenacity of purpose has taken this through, until I realised, as he did, the key flaw in this piece of legislation. That flaw is that those who wish to take the plans through are not the people with the capacity to provide the resource in order for it to happen in the place it needs to happen. As I am always interested in implementation, I thought about how this would work. There has to be a further step somewhere, either in some sort of regulation or a change in the legislation, that ensures that these plans are formulated into the institution—because, remember, these are individual plans. In the institution they have to be put together into programmes for groups of young people; it is not as easy as simply saying that you can carry each plan through as it stands without extra provision being brought in, with all the problems with that in terms of financing.

I hope that the Minister will look at this, take heart that many of us have been very impressed with the way he listens, and take it forward. Many of us are very concerned about young people in detention who have been failed by everybody by the time they get to detention, particularly those with special educational needs who should not be in this form of provision at all. Surely they can get the right education through this legislation, but they certainly will not with this flaw.

[Baroness Walmsley (LD)]

My Lords, I have a suggestion following what the noble Baroness has just said about implementation, but first I must say how pleased I am to see that my noble friend Lord Nash has listened tremendously well and gone away and done something about it. This has been a great example of the way this House works so well behind the scenes. I am very pleased that the blanket statement that all the good stuff in the Bill should not apply to children in custody has been got rid of and that my noble friend the Minister has grasped the opportunity that the Bill gives to put something better in place. Let us see whether we can get it as perfect as we would like to see it.

It occurs to me that it is a very good thing that the responsibility moves back to the home local authority. What we want to see when young people come out of custody and go back to their home local authority is continuity of provision. I know that the Local Government Association has welcomed this provision, but the people actually delivering the services while the young people are in custody are a company, an organisation that has been contracted to deliver that service from outside. They are not the prison authorities. These education services are provided by external organisations under contract. Why should those contracts not always have a proviso within them that says that there is somebody within the organisation with the responsibility of liaising with the home authority to ensure that the EHC plan is delivered, or the assessment is made, whichever is appropriate, and that the services are provided while the young person is in custody? That should be a condition of the contract for delivering education services within the prison. They should be obliged, under their contract, to provide what EHC plans say should be provided. I see no reason why that should not be a condition of winning a contract for providing services within a prison.

My final point is that I am particularly pleased about the duty that is being put on health commissioners to provide services within an EHC plan. I am aware, and the noble Lord, Lord Ramsbotham, has emphasised it on many occasions, that speech and language therapy is much needed by a high percentage of young people in custody. Let us hope that those services will be provided better in future under these new provisions.

[Baroness Hughes of Stretford (Lab)]

My Lords, my name is attached to Amendment 50 along with that of the noble Lord, Lord Ramsbotham. The amendment seeks to take Clause 70, which disapplies the provisions of Part 3 to detained young people, out of the Bill and I am pleased that the Government have accepted that. I also support Amendment 49, tabled by the noble Lord, Lord Ramsbotham.

I can be brief because most of the points have been made. I welcome the Government’s recognition that, as the noble Lord, Lord Storey, said, it was unbelievable that the provisions in Part 3 ought not to apply to detained young people and they have come some way, at least, to applying some of the provisions to young people in custody. However, I regret that, compared to the situation that will exist for young people in the community, the provisions in the government amendments are weak and that, as they stand, they will not give detained young people the same rights to and expectations of support as those in the community.

A number of points have been raised and I would like to summarise two significant holes in the proposals in the amendments as they hang together. First, where there is an EHC plan in existence before a young person goes into custody, the amendments will require the home local authority to maintain that plan and be ready to re-implement it on the release of that young person. That is good. However, as the noble Lords, Lord Ramsbotham, Lord Storey and others have said, the amendments will require the local authority and the healthcare authority to use only their “best endeavours”. That is very different from the duty on the local and healthcare authorities for young people in the community to secure the provision in the EHC plan. That is a big hole and I should be grateful if the Minister would address that issue and say why the Government have diluted the duty on local authorities in respect of detained young people.

The other big gap, which has been addressed in different ways by different contributors to the debate so far, relates to what happens to young people while they are in custody. Most of the amendments address the issue of what happens when the young person is released—they ought to be able to go back home and the home authority should carry on implementing the EHC plan that was in place—but there is nothing in the amendments about what happens in custody. There is a duty on YOIs and custodial institutions to co-operate with the local authority but there is no requirement on the institutions to, for example, identify if a young person has SEN if it has not been identified before they go into custody. This may well be the case because many of them have special educational needs. There is no responsibility on the custodial institution to request an EHC assessment. They can, but there is no requirement for them to do so. There is no responsibility laid on the custodial institutions to take over the responsibilities that would exist for a local authority if that young person was still in the community.

The noble Baroness, Lady Walmsley, referred to the contractors providing the education, but the responsibility ought to lie with the public sector organisation, or the quasi-public sector organisation in the case of a privatised institution, which is holding these young people. It ought to be its responsibility to address the special educational needs of those young people while they are in custody, working closely, of course, with the home local authority from which a young person has come and to which they will return.

16:45

As these amendments stand at the moment, there is nothing that requires the young offender institutions to pay attention to the special educational needs of the young people in custody or to address them in any way at all. That is a big gap. I do not know whether it has arisen because the Ministry of Justice does not want to take on those responsibilities but it is a glaring omission. It means that a young person may go into an institution with an EHC plan and may come out with the home authority ready to implement that EHC plan again but, in the middle, there is no requirement on anybody to do anything. That is a big gap. As the noble Lord, Lord Storey, said, these are the most needy young people in terms of their special educational needs, with huge issues. This is an opportunity, when they are in custody, to address those issues very securely. I hope the Government will rethink and strengthen these amendments. The amendments are good, in so far as they go, but they need to be strengthened further in those respects. I hope that the Minister will agree to think again.

[Lord Addington (LD)]

My Lords, Amendment 48A is in my name. The noble Baroness, Lady Hughes, made the point, also made in the amendment, that hidden disabilities—my interest in dyslexia is very well known in the House—are, by definition, difficult to spot. We also know that they are grossly overrepresented in all sections of the prison and youth justice systems. My amendment suggests that there should be some duty on those institutions to try to identify people in them with such disabilities. Providing education, training and, indeed, even socialisation for people who have been denied the ability, for instance, to access the written word and education is going to be incredibly difficult. They do not respond well and it is something that they cannot do. For example, you cannot even access social security when you leave prison. That might be going slightly off the point, but it is important that the Government give us an idea about the pressure that will be placed on these institutions to try to identify those who have these problems. Most of the work that has been done in this area shows that there is a much better chance of them not reoffending if that is done.

[Lord Nash]

My Lords, I am delighted that the noble Lord, Lord Ramsbotham, is satisfied that we are nearly there. However, as always, we do not quite seem to be there. The best endeavours clause that we are proposing for home local authorities would place incentives, we believe, in the right place—it is in the home local authority’s best interests to arrange quality provision, as it will remain accountable for the young person while they are detained and when they return from detention.

I remember many late nights in lawyers’ meetings when I have been strongly advised not to give a “best endeavours” undertaking, as it is a very strong under- taking, but to try to get away with a “reasonable endeavours” one. My legal training teaches me to believe that a best-endeavours undertaking is actually a very strong one.

The amendments specifically require the local authority to secure the special educational provision that is specified in the plan. If that is not possible, best endeavours would require home local authorities to do everything they could to arrange the special education provision specified in a young offender’s EHC plan while they are in custody—or provision that corresponds as closely as possible to it or to other appropriate provision. Some provision specified in EHC plans cannot be arranged by local authorities while a person is in custody: most notably and obviously, any requirement for a young person to attend a particular school or college, which of course they cannot attend while detained. It is for this reason that it is necessary to use the term “best endeavours”. It is a technical term that avoids placing a legal duty on local authorities which is impractical or impossible for them to deliver.

Amendment 47E does not, we believe, provide a get-out enabling home local authorities to have a free choice about which services they arrange for detained children and young people. They cannot simply decide, without robust justification, that some provision is no longer appropriate, just to avoid arranging it. Under the best endeavours duty, their starting point must be to arrange the provision specified in the EHC plan. They can arrange alternative or other appropriate provision only once they have done everything they can to arrange the provision specified in the plan.

Local authorities and the health services commissioner will be accountable to parents and young people in respect of this best endeavours duty. Parents and young people will be able to complain to their home local authority or to the health body—with ultimate recourse to judicial review. Our strengthened best endeavours duties will be accompanied by a robust code of practice.

The existing contracts for education services in public sector young offender institutions are due to end later this year. We will ensure that the arrangements made with the new education providers support local authorities as they seek to fulfil their best endeavours duty to ensure that provision in EHC plans continues to be delivered while a child or young person is in custody.

The current draft code of practice was of course written before we tabled these amendments. We will now rewrite the code to reflect them and the intent that I have today set out. I am very happy to discuss the wording of the code with the noble Lord, Lord Ramsbotham, outside the Chamber. The code is of course subject to affirmative procedure. I hope that the noble Lord will find that helpful. I look forward to those discussions with him so that it will not be necessary for us to come back to this at Third Reading.

[Baroness Hughes of Stretford]

I am not clear: could any requirements in relation to young offender or custodial institutions included in the code of practice actually be applied to those institutions? Could they come within the purview of the code of practice legally?

[Lord Nash]

I have no idea, but I hope that by the time I have finished dealing with the amendment of my noble friend Lord Addington, I might have an answer.

My noble friend Lord Addington tabled Amendment 48A to require the host local authority to make arrangements to ensure that the workforce has the skills and knowledge to identify special educational needs and put in place effective interventions. It is already a requirement of those we commission to deliver education in the youth secure estate to ensure that the needs of those young people with SEN are properly identified and addressed. Education providers in the youth secure estate are contractually required to have an appropriately trained and qualified workforce to conduct assessments. They will also have a SENCO who is responsible for managing the effective delivery of specialist SEN services.

Education providers are required to conduct an educational assessment of anyone entering custody unless this information is already known. That includes both assessments of levels of literacy, language and numeracy, and the screening of anyone who shows signs of a specific learning difficulty or special educational need. They also use a variety of tools for this purpose, including the hidden disabilities questionnaire developed by Dyslexia Action which screens for a range of hidden disabilities. Provision is subject to regular inspection by Ofsted, where appropriate working with HM Inspectorate of Prisons.

The current contract between the Education Funding Agency and education providers for young offender institutions requires all secure settings to have: procedures for ensuring that the identification and support of specific learning difficulties in young offenders is inspected, evaluated, monitored, reviewed and developed; and an appropriately trained workforce that will identify and support a young offender’s individual learning needs and deliver relevant and individually tailored programmes of learning support to those young offenders whose profiles provide evidence of specific learning difficulties. With the amendments I have proposed today, a young person identified as being at risk as a result of the screening process could be referred for a full EHC assessment. In view of this, and the existing requirements on providers and the amendments I have outlined, I hope that my noble friend will not press his amendment.

I am confident that the government amendments in this group will result in vastly improved provision for children and young people with SEN in custody, and that they address the views and concerns of noble Lords. We have made significant steps on this. As I said, I would be very happy to continue discussing this further—including, if I may, the point made by the noble Baroness, Lady Hughes.

[Lord Ramsbotham]

I thank the Minister for the way in which, as other noble Lords said, he has listened during all our discussions. We have come a long way, but I am still nervous that we have people under the age of 18 in young offender institutions, but health and care plans continue from nought to 25; and we have the problem of the over-18s who will be dispersed elsewhere and who will now, under plans from the Ministry of Justice, no longer go to young offender institutions, but may be sent to adult institutions all over the country.

My nervousness is not so much about the home local authority drawing up the plan but about the actual implications. A great gulf seems still to exist between the intent of the Department for Education, which has been so clearly set out by the Minister, and the ability of the Ministry of Justice to deliver what is required and laid down in legislation. I hope that when we discuss the application of the code of practice, the Ministry of Justice will be present and will be required to set out exactly how it will deliver what is in the code.

[Lord Nash]

I do, too.

Amendment 27A agreed.

Clause 29: Co-operating generally: governing body functions

Amendments 28 and 29 not moved.

Clause 30: Local offer for children and young people with special educational needs

Amendment 30 not moved.

Amendment 30A

Moved by

[Lord Nash]

30A: Clause 30, page 25, line 23, after “needs” insert “or a disability”

Amendment 30A agreed.

Amendment 31 not moved.

Amendments 31A and 31B

Moved by

[Lord Nash]

31A: Clause 30, page 25, line 25, after first “for” insert “—
(i) ”

31B: Clause 30, page 25, line 26, at end insert “, and
(ii) children and young people in its area who have a disability.”

Amendments 31A and 31B agreed.

Amendment 32 not moved.

Amendment 32A

Moved by

[Lord Nash]

32A: Clause 30, page 25, line 30, at beginning insert “other”

Amendment 32A agreed.

Amendment 33 not moved.

Amendments 33A to 33C

Moved by

[Lord Nash]

33A: Clause 30, page 26, line 2, at end insert “—
(i) ”

33B: Clause 30, page 26, line 4, at end insert—
“(ii) children and young people who have a disability, and the parents of children who have a disability, and”

33C: Clause 30, page 26, line 5, at end insert “(including details of any action the authority intends to take)”

Amendments 33A to 33C agreed.

Amendment 33D

Moved by

[Lord Low of Dalston]

33D: Clause 30, page 26, line 5, at end insert—
“(6A) The Secretary of State shall lay a draft of regulations setting out the standards and quality of the special educational provision, health care provision and social care provision which local authorities must meet in their local offer, and the regulations are not to be made unless they have been approved by a resolution of each House of Parliament.
(6B) Once regulations under subsection (6A) have been made, the Secretary of State must—
(a) issue guidance to local authorities on how to meet these regulations, and(b) publish information on these regulations accessible to the families of children and young people with special educational needs on the Department’s website, and in any other way he sees fit.”

[Lord Low of Dalston]

My Lords, Amendment 33D stands in my name and I spoke to it in our first debate this afternoon. When I spoke to it, I said that I would listen to what the Minister and other noble Lords had to say, but I reserved the right to move it and test the opinion of the House when it came up in order. With your Lordships’ agreement, I would like to do that. Never mind all the arguments in favour of the amendment to do with the desirability of a degree of central oversight of a wholly new system being introduced and operated by local authorities, which those who spoke in favour of it maintained is not unduly prescriptive. Irrespective of all that, the main reason why I want to press the amendment to a Division is that I think there has been a considerable misapprehension about the thrust of the amendment on the part of those who expressed reservations about it.

A number of noble Lords said that they were unhappy about an amendment which contained the idea of minimum standards and sought to impose them on local authorities as that would give rise to a tick-box culture, with local authorities merely operating to a bare minimum standard. When I spoke to the amendment I indicated that I had taken this very point when it was made in Grand Committee—that we should not confuse a framework of standards with minimum standards, because if we talked in terms of minimum standards that would lead to this very race to the bottom, which nobody wants to see. I made it clear when I spoke this afternoon that I have very much taken that point.

This amendment does not speak of minimum standards. It merely speaks of the Secretary of State making regulations to provide a framework of standards and quality for local authorities to observe in formulating their local offers. For that reason, I would like to test the opinion of the House.

17:01

Division 1

Ayes: 197

---

Labour: 141
Crossbench: 37
Independent: 7
Bishops: 2
UK Independence Party: 1
Plaid Cymru: 1

Noes: 258

---

Conservative: 160
Liberal Democrat: 71
Crossbench: 18
Independent: 3
Ulster Unionist Party: 2
Bishops: 1

17:14

Amendments 33E to 33H

Moved by

[Lord Nash]

33E: Clause 30, page 26, line 13, after “involve” insert “—
(i) ”

33F: Clause 30, page 26, line 15, leave out from “needs,” to end of line and insert “and
(ii) children and young people who have a disability, and the parents of children who have a disability,in the preparation and review of its local offer;”

33G: Clause 30, page 26, line 21, at end insert “—
(i) ”

33H: Clause 30, page 26, line 23, at end insert “, and
(ii) children and young people who have a disability and those who care for them”

Amendments 33E to 33H agreed.

Clause 31: Co-operating in specific cases: local authority functions

Amendments 33HA to 33HK

Moved by

[Lord Nash]

33HA: Clause 31, page 26, line 30, after “following” insert “persons and”

33HB: Clause 31, page 26, line 33, at end insert—
“( ) the person in charge of any relevant youth accommodation;”

33HC: Clause 31, page 26, line 38, after “The” insert “person or”

33HD: Clause 31, page 26, line 38, leave out “it” and insert “the person or body”

33HE: Clause 31, page 26, line 40, leave out “its own duties” and insert “the duties of the person or body”

33HF: Clause 31, page 26, line 41, leave out “its functions” and insert “the functions of the person or body”

33HG: Clause 31, page 26, line 42, after “A” insert “person or”

33HH: Clause 31, page 26, line 44, after first “a” insert “person or”

33HJ: Clause 31, page 27, line 1, after “assessment” insert “, a detained person’s EHC needs assessment”

33HK: Clause 31, page 27, line 1, after second “the” insert “person or”

Amendments 33HA to 33HK agreed.

Clause 32: Advice and information for parents and young people

Amendment 33J

Moved by

[Baroness Northover]

33J: Clause 32, page 27, line 4, after first “for” insert “children and young people for whom it is responsible, and”

[Baroness Northover (LD)]

My Lords, the Bill already provides for local authorities to be responsible for ensuring that parents of children with special educational needs, and young people with special educational needs, are provided with advice and information. It also already requires local authorities to take appropriate steps for ensuring that parents of children with special educational needs, and young people with special educational needs, know about the advice and information available to them. These government amendments extend that local authority responsibility to children with special educational needs.

In Grand Committee, I said that we were sympathetic to the views of a number of noble Lords about the need for consistent references throughout the Bill and the code to the inclusion and participation of children, where that is appropriate. Where there is a specific decision-making responsibility in relation to children, as distinct from young people, it is, of course, right that we vest that in parents. However, as Clause 32 relates to the provision of information and advice, it is appropriate to make a specific reference to children in it. These amendments do that. Indeed, they have the same effect as Amendments 119, 120 and 122 tabled in Grand Committee by the noble Baronesses, Lady Hughes and Lady Jones. I thank them for highlighting this issue. I hope that noble Lords will agree that these amendments are necessary and I urge noble Lords to support them. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I very much welcome the Government’s amendments in relation to the provision of information to children with special educational needs. Children must be able to take part in decision-making which affects them, according to the UN convention. They will be able to do so only if they are fully informed. This is also important so that under-16s are prepared for the time when they have primary responsibility for decision-making at the age of 16.

The Committee on the Rights of the Child has stated that children have a right to information, which is a prerequisite to their involvement in decision-making:

“Children need access to information in formats appropriate to their age and capacities on all issues of concern to them. This applies to information, for example, relating to their rights, any proceedings affecting them, national legislation, regulations and policies, local services, and appeals and complaints procedures”.

It has even specifically called on Governments to amend legislation to ensure that children are provided with information so that they can be effectively involved in decision-making:

“The child’s right to be heard imposes the obligation on States parties to review or amend their legislation in order to introduce mechanisms providing children with access to appropriate information”.

These statements underpin the Government’s amendment to Clause 32, which I warmly welcome. The amendment to Clause 32 will ensure that under-16s are provided with advice and information concerning special educational needs and disabilities as well as relevant services.

While welcoming these amendments, I urge the Government to ensure that they are paying the utmost attention to the detail of the code of practice and associated regulations with regard to children’s involvement in decision-making. The code of practice and regulations will shape what people on the ground do and how they involve children and young people in decision-making in practice, so it is critical that these documents spell out clearly, consistently and in detail, the responsibilities of local authorities to involve children and young people of all ages in decision-making. I therefore support the Government’s amendment to Clause 32 and welcome the intention to ensure that children, in addition to young people, are provided with advice and information. I also call on the Government to set out clearly in the code of practice and regulations the rights of children and young people to be involved in decision-making.

[Baroness Walmsley]

My Lords, I, too, welcome this group of amendments. From these Benches in Committee we proposed a group of amendments about the voice of the child and the child’s involvement with decision-making. We have not got all that we wanted but there is certainly a step in the right direction here today and I very much welcome it. I echo the words of the noble Baroness, Lady Howe, when she said how important it is that children have the information they need to enable them to take part in decision-making about matters that relate to them. This is a right under the UN Convention on the Rights of the Child and I am very glad that the Government have taken one step further towards implementing it.

[Baroness Howarth of Breckland]

My Lords, very briefly, I would be remiss if I did not welcome this amendment. I was directly involved for many years with children and giving children information, both in voluntary organisations and in the Children and Family Court Advisory and Support Service. It was clear to me that they did not know what information you had given them unless it was in an appropriate form. I hope that the code will take the best from some of the practice that already exists in some local authorities and CAFCASS regarding the form of information and the method of delivery to children and young people. Young children in particular can be involved very easily in many complex areas of their lives and indeed in decision-making if it is explained to them in an appropriate way by an appropriate person. I welcome the amendment but I hope that the implementation will be looked at carefully as there is good practice out there that could be used.

[Lord Pearson of Rannoch (UKIP)]

My Lords, perhaps I may just caution—I think that the noble Baroness has just touched on this—that it is all very well asking children and young people to take decisions but if there is any doubt that they are capable of taking those decisions in their own best interests then it is very important to consult the family, especially when the family is a supportive one. Your Lordships will know that I speak from personal experience on this subject.

[Baroness Jones of Whitchurch]

Very briefly, we also welcome the fact that the Government have recognised that children need to be involved in decision-making that affects their lives and, as the noble Baroness, Lady Howe, has said, this is in keeping with UN Convention on the Rights of the Child and was clearly set out in Clause 19. It was Clause 32, however, where there was an inconsistency in this approach and this was where we had tabled amendments to ensure that the clause also included the right for children to be involved in decision-making. It was this inconsistency that we were keen to address. We are very pleased to hear from the Minister that the Government are now prepared to amend the Bill to rectify that inconsistency.

However, there is still an ongoing issue about the wording in the code of practice and the regulations that sets out local authorities’ responsibility to involve children and young people in decision-making. Unfortunately, these documents still do not consistently reflect the framework set out in Clause 19. Therefore, although I welcome the steps that the Minister and the Government have taken on this matter, it would be helpful if the Minister could also confirm, in the spirit of the previous debate, that the regulations will be updated to ensure that those rights of the child are consistent throughout the Bill. With that challenge back to her, we very much welcome the amendment.

[Baroness Northover]

My Lords, I thank noble Lords for their welcome for these amendments, particularly the noble Baronesses, Lady Howe and Lady Howarth, and my noble friend Lady Walmsley. I understand what the noble Baroness, Lady Howarth, and others have said about implementation and, as the noble Baroness put it, the form and method of delivery. We certainly take her points.

I remind the noble Lord, Lord Pearson, that this is about the provision of information and the participation of children where appropriate, as I said in my introductory remarks. I am sure that the code will be carefully examined to ensure that it is consistent with the decisions made on Report, as evidenced by these amendments. I hope that noble Lords will be willing to support these amendments.

Amendment 33J agreed.

Amendments 33K to 33P

Moved by

[Lord Nash]

33K: Clause 32, page 27, line 5, leave out “and young people for whom it is responsible,”

33L: Clause 32, page 27, line 7, at end insert—
“(1A) A local authority in England must arrange for children and young people in its area with a disability, and the parents of children in its area with a disability, to be provided with advice and information about matters relating to the disabilities of the children or young people concerned.”

33M: Clause 32, page 27, line 9, leave out “subsection (1)” and insert “subsections (1) and (1A)”

33N: Clause 32, page 27, line 10, at end insert—
“( ) children in its area;”

33P: Clause 32, page 27, line 15, leave out “subsection (1)” and insert “subsections (1) and (1A)”

Amendments 33K to 33P agreed.

Clause 34: Children and young people with special educational needs but no EHC plan

Amendments 34 and 34A not moved.

Clause 36: Assessment of education, health and care needs

Amendment 34AA

Moved by

[Lord Nash]

34AA: Clause 36, page 29, line 39, at end insert “or section (Assessment of post-detention education, health and care needs of detained persons)”

Amendment 34AA agreed.

Amendment 34B had been withdrawn from the Marshalled List.

Amendment 34C

Moved by

[Lord Nash]

34C: Clause 36, page 30, line 20, after “In” insert “making a determination or”

[Lord Nash]

My Lords, there has been broad support across this House for our ambition to create a system that raises aspirations and helps young people with SEN to realise their full potential, achieve positive outcomes and prepare for adult life. There has also been broad support for the provisions in the Bill that extend additional rights and support to 16 to 25 year- olds in further education and training.

The Bill enshrines in law the principle that local authorities must take account of young people’s views, wishes and feelings, and involve them in decision-making. It gives young people aged 16 to 25 the right to request an assessment of their needs. It ensures that post-16 institutions will be consulted by the local authority when it reviews its provision, and are included in the local offer. It places FE colleges, sixth form colleges, 16 to 19 academies and free schools under a new duty to use their “best endeavours” for all young people with SEN, and ensures that they have regard to the new nought to 25 code of practice. It gives young people the right to request that these institutions—and approved independent specialist providers—be named in their EHC plan and then admit them, unless exemptions apply. It ensures that young people who become NEET do not lose their EHC support, and are helped back into education. Also, for the first time, it gives 16 to 25 year-olds in further education and training the right to appeal to an SEN first-tier tribunal if they are unhappy with their arrangements. There is a great deal here that we should be proud of and I am grateful for the support that noble Lords have shown on all sides of the House.

However, I also know that there has been genuine concern about the provisions in the Bill that require local authorities to “have regard to” the age of young people aged 19 to 25 when determining their support. We had a particularly helpful round-table discussion on this when a number of noble Lords, including my noble friends Lady Sharp and Lady Cumberlege and the noble Baronesses, Lady Hughes and Lady Howarth, made a number of really helpful comments in this regard. Noble Lords have particularly expressed their fears that the Bill as currently drafted would provide local authorities with an excuse to deny or cease support to a young person based solely on their age. This is not, and has never been, our intention. Young people with SEN aged 19 to 25 should be supported to remain in formal education where this will enable them to complete or consolidate their learning, achieve their outcomes and make a successful transition to adulthood. In achieving this important aim we must not inadvertently create an entitlement or expectation that all young people with SEN remain in education until age 25. That would not be in the interests of many young people, who may need just one or two years of additional education to progress into adult life and work.

I have listened carefully to the concerns of noble Lords, both during debate in Grand Committee and subsequently. In particular, I have listened to concerns that the focus on age is unhelpful or unclear in its intention and could lead to support being denied on the basis of a young person’s age alone. I have therefore tabled government amendments to clarify our intention in the Bill. I am pleased to be presenting these amendments with the support of my noble friends Lady Sharp and Lady Cumberlege, who spoke incisively on this issue in Grand Committee.

17:30

The amendments remove the explicit requirement to have regard to a young person’s age, instead requiring local authorities to consider whether a young person aged over 18 needs more time to complete their education when determining whether to make an EHC plan, and whether they have achieved the outcomes specified in their plan before determining that it should end. As ever, local authorities must make that judgment in close consultation with young people, who will have access to mediation and can appeal to the SEN tribunal if they are unhappy with the decision.

I am grateful also to the noble Baronesses, Lady Hughes and Lady Jones, for their amendments seeking to require consideration of “educational progress” rather than age. I am pleased that we have achieved such a degree of consensus. I hope that noble Lords will support my proposed amendments, which represent a very positive improvement to the Bill and reflect the very constructive and helpful debates that we have had in this House. I beg to move.

[Baroness Cumberlege (Con)]

My Lords, I am delighted to be able to support my noble friend on these amendments which remove the requirement for local authorities to have regard to age when making decisions about the education, health and care plans for young people.

Amendment 173, which I proposed in Grand Committee and in which I was supported by the noble Baronesses, Lady Hughes and Lady Jones, aimed to achieve the same end that has been put forward in these amendments. As my noble friend said, it removes Clause 45(4). I applaud the Government for recognising the force of our arguments and for putting forward these very important amendments, which will make a significant difference not only to the Act when it is passed but to the young people concerned, which clearly is the most important part of this amendment.

Like many other noble Lords, I pay a personal tribute to my noble friend Lord Nash, who has been generous in the time he has spent discussing this aspect of the Bill with me and many other noble Lords and in the determination that he has shown to get it right for young people at what many of us consider to be the most important time of transition in their lives. I am very grateful for his recognition that some young people with special educational needs require more time to complete their education beyond the age of 18. Of course, that has now been translated into the amendment in the Bill. This requires local authorities to consider whether the young person requires additional time to complete his or her education or training. That is a very good thing indeed.

My noble friend will know from the amendment that I proposed in Grand Committee that I believe that local authorities should be required to have regard not only to whether education and training outcomes have been achieved but to whether,

“health and social care outcomes have been achieved”.

The Government did not support that amendment. Nevertheless, I welcome the proposed amendments to Clauses 44 and 45 which will require local authorities, when reviewing a plan or considering whether to propose the cessation of an EHC plan, to have regard to whether the education or training outcomes specified have been achieved. Focusing on outcomes is much more important for young people with complex special educational needs. Their chronological age is far less relevant than whether they have achieved the skills that will enable them to make a successful transition to adult life.

I have one remaining concern, however, and a request to my noble friend. I am worried that some people may mistakenly interpret the phrase “education and training outcomes” in too narrow a way and relate these primarily to formal accredited learning and qualifications. I know from my noble friend’s visit to the Chailey Heritage Foundation that he understands that, for some young people with complex needs, the learning educational outcomes they achieve will not be appropriately assessed and recognised through the usual formal accredited qualifications. It would be most unfortunate if local authorities sought to stop EHC plans for young people with complex needs because the outcomes they wanted to achieve post-18 were not ones that could be formally accredited.

The code of practice should be explicit about the full range of educational outcomes that might be legitimately included in an EHC plan. I therefore ask for assurance that the code of practice will make clear that the educational and training outcomes in these clauses will be considered in the wider sense and not restricted to accredited learning or formal qualifications.

[Baroness Sharp of Guildford]

My Lords, my name is attached to many of these amendments and I am delighted to support them all. I also pay tribute to the Minister for having listened to the arguments that we put forward in Committee.

First, it was suggested in Committee that some young people over 18 might not need the help and support they had been getting. That would provide local authorities with an excuse for dropping such support after 18 by using those words “to have regard to age”. Secondly, and perhaps more importantly, it was said that the wording was too flexible. We all know that circumstances can vary enormously and that some young people with SEN are ready by the age of 18 to stand on their own and that—partly thanks to the help and support they have received—they are well able to cope without further support. However, others mature later and need to be given extra help and support. Indeed, they often need to take longer, as the noble Baroness, Lady Cumberlege, indicated, over the process of learning and acquiring skills and qualifications. The Minister agreed with those arguments and stated very clearly in his response that the provision of continuing support was not a matter of age but of whether the young person concerned was ready to move into adult life. He was not prepared to move initially in Committee but he said that he was very willing to meet us. The amendments that he has introduced today very largely meet the points that we made then and show that he has very much heeded those arguments. The new wording introduced today meets our requirements.

The first of the two key amendments is Amendment 34D to Clause 36. The wording,

“have regard to his or her age”,

will be changed to,

“consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training”.

In Amendment 39B to Clause 44, “his or her age” will be omitted and the words,

“whether the educational or training outcomes specified in the plan have been achieved”,

will be inserted. As the revised wording implies, the clear intention is that local authorities should be flexible in their approach, and should above all consider whether the young person has reached a point where they can do without the extra help and support that an EHC plan would give them. It is clear from the various case studies provided to us by those who are anxious to see the wording changed, that many young people need and will benefit from this flexible approach. I again thank the Minister and the Bill team for their readiness to listen to our arguments and to make these changes.

However, there is some unhappiness among those providing education and training to over-18s with special educational needs about the current wording of the draft code of practice. In particular, they think that there is a degree of inconsistency in it. At some points the draft code rightly emphasises—as the wording of the amended Bill does—the needs of the individual, whether the outcomes specified in the EHC plan have been achieved and whether the young person is ready to enter and cope with adulthood. At other times the code seems to point to the cliff edge—that once a young person reaches the age of 18, it is no longer necessary to maintain the plan. Could the Minister and his officials, having now amended the Bill, make sure that the code of practice fully reflects the amendments that we have made?

In general, I reiterate how very grateful those for whom I have been speaking in relation to these issues and I are to the Minister and his officials for listening to us, and for amending the Bill.

[Baroness Howarth of Breckland]

My Lords, I add my thanks and make two brief points. First, this will convey a message to the young people themselves. It is not often that legislation matters to the recipients so directly in sending a message. Transition is a very difficult time for people with special educational needs and severe disabilities. Added to all the difficulties that they have of movement of placement and, often, of changes to the personnel involved in their care, has been the suggestion that their age mattered. To them, it does not matter to the transition that they will make to the adult world, because they are not like everyone else who is 18; they are all difficult, but certainly not like most 18 year-olds. This will mean that, in the words of the noble Baroness, Lady Sharp, the needs of the individual will be met. That is a really important message.

I am concerned, as is the noble Baroness, Lady Cumberlege, about the link to health and social care, because it simply cannot be avoided. I am sure that there will be issues around the code of practice. If you are admitted to a residential college because you have severe learning difficulties and physical disabilities, combined with the residential placement will be a series of health provisions. That will all be part of the package, so you have to have regard to all that as well. The Minister may say that that will come anyway because commissioning will be expected for that—but this is something that still worries a number of providers and families as well as individual youngsters, who need very specialist healthcare in their placements and are concerned that that might not continue beyond their 18th birthday, even if their education does.

[Lord Pearson of Rannoch]

My Lords, I rise briefly to speak to Amendment 39CA, which has been put in this group. I apologise for tabling the amendment so late in our proceedings and for not taking part in those proceedings so far, or in your Lordships’ consideration of the Care Bill, which has now gone to the Commons. As on many previous occasions, I declare my interest as the father of a daughter with Down’s syndrome, although because she is now 32 that interest is not directly relevant to this amendment.

I tabled the amendment because I was contacted shortly before we rose for the Christmas Recess by some cerebral palsy practitioners who could not see how this Bill ensures continuity of support from child to adulthood for children with learning disabilities—hence this probing amendment, which I do not pretend is perfectly worded. It focuses on Clause 37 of the Care Bill, which deals with continuity of support when an adult moves geographically. It may have been better to focus it on Clause 67 of the Care Bill, which is described in the Explanatory Notes as being designed,

“to ensure no gap in provision during the transition to adult care and support”.

That is what the amendment seeks to secure. I would be very grateful if the Minister could confirm whether that is what Clause 67 does, or if and how that well known gap is closed elsewhere in this Bill or the Care Bill. When he comes to reply, I would be particularly grateful if he could explain what the words,

“or for some other reason”,

mean in Clause 67 of the Care Bill, on page 57, in line 36—and, again, on page 59, in line 1. At first sight, they appear to give wide discretion to a local authority not to meet a person’s needs after it has concluded that he has such needs. If true, that would appear to affect children moving to adulthood as well.

I have discussed this matter with the noble Lord’s officials. I appreciate that it strays somewhat into Care Bill territory, but I would be most grateful for anything that the Minister feels able to say about the position, in plain language. I look forward to his remarks.

17:45

[Baroness Hughes of Stretford]

My Lords, I rise briefly to make two points. First, I welcome the amendments. The wording of the government amendments is very sensible and I am pleased that the Minister has listened. The critical moment was when the Government published their policy position on this issue when it was crystal clear to everyone that the position as outlined was not reflected by the words “having regard to age” in the Bill. That was a kind of “light bulb” moment, and I am pleased that they have recognised that. The wording in so far as it goes is fine, and I am very pleased to support it.

Secondly, I commend the points made by the noble Baroness, Lady Cumberlege, repeated by the noble Baronesses, Lady Sharp and Lady Howarth. It is important that the Government pay attention to the way in which the code of practice reflects this change and make sure that the wording in the code is expansive rather than restrictive on local authorities and other service providers, so that they can look in the round at these young people as they approach and go beyond 18, in terms of their various needs, and not limit it only to a formal definition of education and training. I look forward to the Minister’s remarks on that, but I very much welcome the changes.

[Lord Nash]

My Lords, I thank again my noble friends Lady Sharp and Lady Cumberlege, as well as the noble Baroness, Lady Howarth, for their insights during Grand Committee. I welcome the opportunity that the noble Lord, Lord Pearson, has given us to clarify how we have secured continuity of adult care for young people with EHC plans. I also thank the noble Baroness, Lady Jones, for her kind remarks.

On the point made by my noble friend Lady Cumberlege, yes, we are making it clear that the outcomes that we are looking for are wider. The outcomes specified in the plan do not have to be formal or accredited; we are happy to make sure that that is clear in the code. On a point made more generally by my noble friend Lady Sharp, the draft code predates the amendments, and we will make sure that the code fully reflects the amendments, including making it clear that outcomes rather than age must be considered.

In response to the important issues raised by the noble Lord, Lord Pearson, I am delighted to state categorically that no young person who turns 18 and is in receipt of children’s social care will face a gap in provision while consideration is made about their adult care. This applies if they move to a new local authority or if their EHC plan comes to an end at that point because they are leaving education. Clause 47 provides for regulations that ensure continuity of support and provision when a child or young person with an EHC plan moves to a different local authority. For those turning 18, Clause 50 enables local authorities to extend children’s services beyond the age of 18 for those with an EHC plan where that is the best option. Provisions in the Care Bill ensure that there is no gap in care services when a young person moves to a different area, turns 18 or their EHC plan comes to an end. Those 18 year-olds who have eligible needs for care and support will in future receive a statutory care and support plan. Both we and the Department of Health are clear that this will form the care part of their EHC plan when one is in place and would continue in its own right as a statutory plan once their EHC plan is no longer maintained.

Furthermore, Clauses 37 and 38 of the Care Bill ensure that support is continued when someone with a statutory care and support plan moves to a new local authority. When a young person turns 18, Clauses 59 to 67 of the Care Bill ensure that assessments for adult care are carried out in good time so that support can be put in place promptly. In particular, Clause 67 requires local authorities to continue to provide existing support under Section 17 of the Children Act 1989 or under the Chronically Sick and Disabled Persons Act 1970 until adult care begins, or a decision is made that an adult care and support plan is not required. Young people who have made a successful transition to adulthood and are now in employment, higher education or adult learning, will continue to receive support in those settings that will enable them to maintain and build on the outcomes achieved while in formal education. For example, Access to Work is available for those in employment.

As regards the point made by the noble Lord, Lord Pearson, about the reading of the words “for some other reason”, the Department of Health is clear that this phrase does not in any way change a local authority’s duty to meet an adult’s eligible needs for care and support under Clause 81 of the Care Bill. “Other reasons” could refer to, for example, a person changing their place of residence to a different local authority area before the assessment has been completed. It does not provide carte blanche for local authorities to refuse to provide services for spurious reasons. I hope that is helpful. I believe that the amendments I am moving today represent a genuinely positive change to the Bill, which, along with reforms in the Care Bill, further strengthen arrangements for young people making the transition to adulthood. I hope that noble Lords will support them.

Amendment 34C agreed.

Amendment 34D

Moved by

[Lord Nash]

34D: Clause 36, page 30, line 21, leave out “have regard to his or her age” and insert “consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training”

Amendment 34D agreed.

Amendment 34E not moved.

Clause 37: Education, health and care plans

Amendment 34F

Moved by

[Baroness Sharp of Guildford]

34F: Clause 37, page 31, line 10, leave out subsection (4)

Amendment 34F agreed.

Amendment 34G not moved.

Clause 38: Preparation of EHC plans: draft plan

Amendment 35 not moved.

Clause 39: Finalising EHC plans: request for particular school or other institution

Amendment 36 not moved.

Clause 41: Independent special schools and special post-16 institutions: approval

Amendment 37 not moved.

Clause 42: Duty to secure special educational provision and health care provision in accordance with EHC Plan

Amendment 38

Moved by

[Lord Rix]

38: Clause 42, page 34, line 10, at end insert—
“( ) If the plan specifies social care provision, the responsible local authority must secure the specified social care provision for the child or young person.”

[Lord Rix (CB)]

Noble Lords will have noticed, no doubt, that Amendment 38 would place a duty to deliver the social care element of the forthcoming education, health and care plans, which gives me an excuse to indulge for a short time in a worry that has bothered me for more than 30 years. In the 1980s, I began to have discussions with civil servants, politicians and administrators, particularly at the old DHSS—then located at the Elephant and Castle—about increasing co-operation between education, health and social care, and was told on many occasions that this was the recognised way forward. The will seems always to have been there, but meaningful co-ordination and collaboration on the ground has failed to emerge. It has been entirely dependent on local circumstance. We need to change that.

To the Government’s credit, they have recognised the problem and have taken the very welcome step forward of amending the Bill so that clinical commissioning groups are under a duty to provide the health element of the plan—but, alas, social care remains the poor cousin. This could easily be remedied by aligning the duty to provide social care services, as laid down in the Chronically Sick and Disabled Persons Act 1970, with the education, health and care plans that appear in the Bill. In this suggestion I am supported by not only my fellow signatories to the amendment but by the Special Educational Consortium and the Every Disabled Child Matters campaign.

Currently, many families do not receive the care they need until they reach breaking point—something to which Mencap drew attention in a recent report of that name. A duty to deliver the care elements of the plan will ensure that children, young people and their families receive services earlier, thus preventing the need for higher levels of support later. I understand that the Government are looking into this matter— something I warmly welcome, if the outcome is correct. I look forward to the Minister’s response. I beg to move.

[Lord Low of Dalston]

My Lords, my name is on the amendment and I wish to give my full support to my noble friend Lord Rix, who moved it. It would place a duty on local authorities to deliver the social care services identified in education, health and care plans. The contention of the noble Lord, myself and the other noble Lords who have their names on the amendment is that there is very little point in assessing a child or young person’s needs, identifying social care needs and putting them in the education and health plan, and then not making the plan enforceable in respect of social care as it is in respect of education provision.

As I think the noble Lord, Lord Rix, indicated, the amendment would add no new duties on local authorities to provide social care in addition to those that already exist. It merely brings together the legislation on education, health and care plans and existing social care legislation. There is currently a misconception that the social care duties in respect of disabled children are not specifically enforceable for an individual child. However, as I think the Government accept, this duty does already exist under Section 2 of the Chronically Sick and Disabled Persons Act 1970. The proposal contained in this amendment would help to correct this misconception.

The Government have argued that a proposal to create an individually owed duty in relation to social care would prioritise one group of children in need over another. However, there is already an individually owed duty to disabled children in Section 2 of the Chronically Sick and Disabled Persons Act, as I indicated, which is not enjoyed by other children in need. We had a good discussion about this in one of the Minister’s meetings with Peers, which I think we all found very valuable in developing our understanding of the Bill. I think we managed to elucidate in that discussion that if one were going to establish priorities between different groups of recipients of social care, it would have to be done at a prior stage to the formulation of the education, health and care plan. If the authority has got to the point of identifying social care needs and putting them in the plan, it really does not make any sense in terms of integrated education, health and social care provision not to make the provision identified in the plan enforceable.

[Baroness Hollins (CB)]

My Lords, I, too, add my support to the amendment moved by my noble friend Lord Rix, which aims to ensure that children and young people receive the care to which they are entitled. I empathise with the battle to get health, education and social care agencies to work together; it is one that I waged on behalf of my son in the past. I know, of course, that I am not alone here and that parents across the country face this uphill struggle.

The absence of a duty to deliver the social care elements of the plan sends out the dangerous message that care is unimportant alongside education and health provisions. It is, as my noble friend says, the poor cousin. For children and young people with a learning disability and their families, this could not be further from the truth. Good social care plays an important part in helping the child or young person achieve their educational goals. That is accepted, whether it is in relation to independent living, supported employment, employment or moving on to further learning. Good social care prevents burnout in families. I understand and am glad that the Government have accepted that there is an issue here, and I look forward to the Minister’s response.

18:00

[Baroness Sharp of Guildford]

My Lords, my name is also attached to the amendment. I endorse what has already been said by the noble Lords, Lord Rix and Lord Low, and by the noble Baroness, Lady Hollins.

As currently drafted in the Bill, special educational provision has to be secured by local authorities. In Committee in the House of Commons, the Government tabled an amendment that places health commissioners under a duty to arrange any health provision set out in the plan. It leaves social care as the only element of an EHC plan that is not enforceable. However, if you create an education, health and care plan, it does not make sense if there is no specific duty to provide the social care services for young people set out in the plan. As the noble Lords, Lord Rix and Lord Low, indicated, there is already provision in Section 2 of the Chronically Sick and Disabled Persons Act 1970 for a specific duty to provide social care services for disabled children.

That picks up on a point made by the noble Baroness, Lady Cumberlege, when we were debating the previous amendment, about her worry that there was no enforcement mechanism to make sure that the social care provisions, which need to be integrated with the education and health provisions, are there. That point has been made time and time again by the noble Baroness, Lady Howarth. It is not logical that we have enforcement mechanisms for education and health but none for social care.

[Baroness Howarth of Breckland]

My Lords, I want briefly to say what I have said several times. If you have a package for education and health, you cannot fail to include the social care element. What I am hoping is that the Minister will give the same answer that he has just given on my previous point—that such provision is contained in the Care Bill. Having looked at the progress made in the way that these services are delivered, that Bill will ensure that the social care element can be provided along with the health element. That is really important because the three are inseparable in the provision of services, particularly for very severely disabled young people. I therefore hope that the answer will be that such provision is already there in another piece of legislation.

[Baroness Wilkins]

My Lords, I, too, add my support for the amendment. For this system to be truly joined up, all parts of the education, health and care plan need to be enforceable; otherwise, social care will be, as has been described, the poor cousin—the element within the EHC plan that will be considered to be of least importance. This is of concern to a wide range of children and young people with SEN and disabilities. We know that parents, too, are concerned about this; in fact, more than 1,000 people have written to the Minister on the issue and asked the Government to ensure that social care will be an equal partner in education, health and care plans. I am therefore encouraged to learn that the Government are looking into the issue in more detail. I very much welcome this and look forward to the Minister’s response.

[Baroness Eaton]

My Lords, perhaps the Minister can clarify what I understood was the situation, whereby there is already in existence a statutory duty under Section 17 of the Children Act 1989 for local authorities to provide services in their area to meet the needs of children in need, including disabled children.

In the case of services for disabled children, under Section 2 of the Chronically Sick and Disabled Persons Act 1970, once the local authority is satisfied that it is necessary to provide assistance under that section, it is under a duty to provide the assistance. It is not, however, necessarily the case that services must be provided to meet every assessed need. Whether a children’s services authority has to provide services following assessment depends on the nature and extent of the need assessed, and on the consequences of not providing the service. These duties have already been the subject of significant litigation, and it may be that imposing a social care duty under the Bill would further complicate an already complex legal position.

[The Lord Bishop of Ripon and Leeds]

My Lords, I, too, add my support for the amendment and my gratitude to those who have fought so hard to bring it forward. For reasons that have already been expressed in terms of the parity between the three elements of education, health and social care, there is a continuing danger, time and again, in our legislation and in our thinking, that social care becomes an orphaned right—to take an analogy from another area.

I want to push Minister a bit further on the argument that has been put forward that if we pass an amendment such as this, other areas will thereby be deprioritised. I simply fail to understand, despite having read a good deal about it, how that can possibly be so. It seems to me that equality in this area is crucial, and therefore that we ought to pursue an amendment such as this.

[Lord Storey]

My Lords, if you are going to agree an education, health and care plan, it is clearly important that all elements have to be provided. That is agreed. I understand that there are complex difficulties here. I have spoken to the Local Government Association, which recognises those difficulties. I know that the Minister himself is—perhaps “wrestling” is too strong a word—looking in detail at how we can get what we all want. I hope that your Lordships will be patient on the issue, because I am sure that with good will on all sides we will eventually get there.

[Baroness Hughes of Stretford]

My Lords, my name is also attached to the amendment and I respectfully suggest to your Lordships that this is one of two outstanding, key issues on which the effective implementation of the Government’s welcome approach to integration of education, health and social care depends.

Clause 42 states that where a local authority maintains an ECH plan it must secure the special educational provision. Where the plan specifies healthcare provision, the responsible commissioning body must provide the healthcare. The amendment would simply place a parallel duty on local authorities to provide the social care that is outlined in the plan. This is a key issue for parents as well as, obviously, for many noble Lords in this House. As the legislation is currently drafted, the ECH plans would offer no more legal entitlements to support from social care services than current statements do at the moment. Let us remember that social care provision can be detailed in those statements in a separate section from educational provision. However, the aim of these reforms and the Bill is to provide a simpler system for disabled children and young people, and those with special educational needs and their families, that integrates the different forms of provision into one piece of legislation. One assessment and one plan is what the Government are trying to achieve for those families. There is an opportunity in the Bill to bring everything together. One of the main aims of the Bill is to provide clarity, transparency and integration, as the noble Baroness, Lady Sharp, so eloquently identified.

In Committee and at the various meetings that we have had on this matter, while the Minister has been trying to listen, I do not think that so far the Government have provided any coherent reason for excluding the local authority from the duty to provide the social care specified in the plan. As the noble Lord, Lord Low, reminded us, the first argument put by the Government was that other legislation—the Chronically Sick and Disabled Persons Act together with the Children Act—already provide for that duty. A second argument deployed at later meetings was that placing such a duty in this Bill would give disabled children an unacceptable priority in law above other children in need.

The debate has been rather clouded by well meaning but exceedingly technical legal opinions on both sides. However, the clearest and most helpful opinion has come in the further opinion, dated 13 May 2013, from the lawyers commissioned by the sector. This asked the crucial question in relation to these different arguments as to whether placing local authorities under a duty to deliver the social care set out in the plans would represent a significant change to local authorities’ legal duties under that existing legislation. The crucial question is whether it would represent a significant change. The answer in the opinion is emphatically no. If noble Lords will bear with me, it is worth putting this opinion on the record.

The crucial question asked is whether placing local authorities under a duty to deliver the social care provision set out in the EHC plans would represent a significant change to local authorities’ legal duties in other legislation. Paragraph 13 of the opinion states:

“No. If there were to be a specific duty to provide the social care provision set out in an EHC Plan, this would simply mean that the Local Authority would be discharging its CSDPA 1970 duty (either wholly or in part) by providing the provision set out in the Plan. Indeed, for children who qualify for an EHC Plan the inclusion of social care provision within the Plan is a helpful way of determining that the Local Authority considers that this provision is necessary to meet their needs—in other words that the test for the 1970 Act duty to arise is met”.

The opinion goes on to say:

“This is very similar to the approach that the Government has adopted in relation to the duty to arrange health care provision … the Government accepts that in arranging the provision specified in the plan a CCG”—

a clinical commissioning group—

“will be discharging its existing duty pursuant to section 3 of the NHS Act 2006”.

This was a question that we asked in Committee: why the difference between social care and healthcare? Paragraph 14 states:

“Any concern that this would involve treating disabled children more favourably than other groups of children ‘in need’ is misplaced. Firstly, disabled children have already benefited”—

for more than 40 years—

“from the specific duty … in the CSDPA 1970 to provide them with support, a benefit which other children ‘in need’ do not enjoy … Secondly, it is a well established tenet of discrimination law that reasonable positive measures intended to correct significant disadvantage experienced by a particular group are unlikely to be discriminatory. Indeed Equality Act 2010 … provides that compliance with the public sector equality duty … ‘may involve treating some persons more favourably than others’”.

Therefore, in this view, the inclusion of social care under the duty to provide the services specified in an EHC plan would not make a significant difference to existing entitlements in social care and, indeed, is simply consistent with local authorities’ current duties.

However, there would be a number of significant advantages to putting this duty into this Bill as well. A main advantage is that it would clarify for parents the responsibilities of the three agencies together regarding what must provided—in other words, everything in the plan—and that would be a very big benefit for parents. Secondly, it would consolidate the integrated approach that runs right through this Bill until we get to social care. Thirdly, it would give children under 18 the same demonstrable, enforceable rights that adults already have under the Chronically Sick and Disabled Persons Act, and thus there would be a seamless and equal status for disabled children from birth to 25. Those are the simplest legal arguments in favour of the amendment.

18:15

However, even simpler is the fact that we are talking about making explicitly enforceable the social care services specified in the plan—that is, those that the local authority itself has willingly assessed the child as needing and has agreed to include in the plan. The local authority will be assessing that level of need in the context of its duties and its resources, as will the health services.

Therefore, I do not think that there is a credible argument for distinguishing between special education, health and social care in relation to the duty outlined in Clause 42, and I hope that the Government and the Minister will listen on this very important issue, as they have done on other issues.

[Lord Nash]

My Lords, I thank the noble Lords, Lord Rix and Lord Low, the noble Baroness, Lady Hughes, and my noble friend Lady Sharp for raising this important matter. I also welcomed the high-quality debate on social care in Grand Committee. I understand fully all the concerns expressed by noble Lords and I say again that it remains our clear expectation that any social care services specified in an EHC plan will be provided by local authorities. As I shall explain, I hope that at Third Reading we will be able to bring forward amendments to address some of those concerns.

However, it is vital that local authorities are able to decide how to prioritise expenditure on social care based on the needs of children and young people, whether or not they have an EHC plan. As a targeted service for vulnerable children and young people, social care is different from education and health services. Education and health services are universal and it makes sense that there should be equivalent duties to provide the services in EHC plans in order to prioritise, over others, children and young people with greater needs.

Social care is a targeted service and is available only for vulnerable children and young people, so there is a greater risk that an individually owed duty for those with plans could adversely affect other vulnerable groups, including children at risk of neglect. We do not think that that is the right thing to do. In answer to a point made by the noble Baroness, Lady Hughes, and the right reverend Prelate the Bishop of Ripon and Leeds, I am afraid that it is really a question of resources. However, I am delighted to hear the noble Baroness, Lady Hughes, say that this is one of two remaining pieces in the jigsaw. I am dying to hear what the second one is and I am sure that I will not have to wait long. However, I hope that I shall be able to be helpful in relation to this point.

I do not propose to rehearse further all the important arguments that were made in Grand Committee except to recognise that a number of points have been raised by noble Lords about the Chronically Sick and Disabled Persons Act 1970. It is important to re-emphasise that, regardless of whether social care provision is included in the EHC plan, the duties in existing legislation will continue to apply, as a number of noble Lords have said. Therefore, the requirement for EHC plans to include social care provision “reasonably required” by the learning difficulty or disability which gives rise to the SEN will not introduce a new test for which social care services are to be provided. The duty of local authorities to provide services to disabled children where it is decided that they are necessary under the CSDPA will continue to apply.

I recognise that a number of noble Lords, along with representatives of Every Disabled Child Matters and the Special Educational Consortium, are attracted to including the CSDPA in the Bill as a means of, first, providing assurance that assessed social care needs for disabled children will be met under the existing duty in Section 2 of the CSDPA and, secondly, ensuring that the EHC plan includes all the relevant social care services needed by disabled children.

The Minister for Children and Families and I have had helpful meetings with representatives of the Special Educational Consortium and noble Lords where we have discussed this proposal, and officials at the Department for Education are continuing those discussions. There are of course a number of important issues to consider and we need to avoid unintended consequences. For example, we need to ensure that including the 1970 Act in the Bill will not cause confusion if other relevant legislation is not also listed. We must also ensure that we do all we can in the SEN code of practice to explain the existing legislation clearly to parents and professionals. However, I am hopeful of a positive outcome to these discussions and hope to bring forward an amendment at Third Reading to reflect this. In view of these ongoing discussions and my undertaking, I urge the noble Lords, Lord Rix and Lord Low, the noble Baroness, Lady Hughes, and my noble friend Lady Sharp not to press their amendment.

[Lord Rix]

My Lords, I thank every noble Lord who spoke in support of this amendment. Clearly there is greater support than the number of noble Lords present at the moment and I most grateful, too, to the Minister for his response. I can only take him at his word, which I am sure is totally unassailable, and trust that the amendment that he brings forward at Third Reading will, indeed, support all of us who have wished for Amendment 38 to be accepted. Obviously, he will bring forth something which is not quite Amendment 38, but I hope that it will satisfy all of us here concerned and ensure that social care is, in some form or another, in the Bill. With that assurance ringing in my ears, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendment 38A

Moved by

[Baroness Northover]

38A: Clause 42, page 34, line 14, leave out “to the extent that” and insert “if”

[Baroness Northover]

My Lords, both this amendment and Amendment 42 in the name of the noble Countess, Lady Mar, are concerned with the roles of parents, young people and local authorities in making decisions about support for those with education, health and care plans.

Government Amendment 38A is a technical amendment to Clause 42. In the current system, set out in the Education Act 1996, when a statement is maintained for a child or young person the local authority is under a duty to secure the special educational provision specified in it. If a local authority names an independent school or college in the statement as special educational provision it must, under Clause 59, meet the costs of the fees, including any boarding and lodging where relevant. However, the local authority is relieved of its duty to arrange the special educational provision in the statement, including securing a place in a school or college named in a statement of SEN, if the parents or the young person have made suitable alternative arrangements for special educational provision to be made, for example, in an independent school or college or at home.

The Bill introduced to Parliament in February 2013 retained this provision, but when government amendments were introduced in Committee in the other place to place a duty on heath bodies to arrange the healthcare provision specified in an education, health and care plan, Clause 42 was amended so that, under Clause 42(5), local authorities’ and health bodies’ duties to secure and arrange specified provision would not apply,

“to the extent that the child’s parent or the young person has made suitable alternative arrangements”.

We made this change with the intention of ensuring that, in cases where a parent or young person had made suitable alternative arrangements only for education provision, the duty on responsible health commissioners to arrange required health provision would remain in place. On reflection, that wording is problematic and could have unintended consequences, since it could be interpreted to mean that when a parent or young person makes alternative arrangements for only some of the provision the local authority or health body is only relieved from its duty to make that provision and must secure and arrange the remainder. This would not be sensible or fair.

Amendment 38A would address this issue and ensure that local authorities have a clear duty to secure the special educational provision in a child or young person’s education, health and care plan; it would enable parents or young people to make alternative arrangements; it would require local authorities to satisfy themselves that those arrangements are suitable; and it would enable local authorities to assist parents in making their own arrangements suitable, if they consider it appropriate, without imposing any duty on them to do so. It has not been sufficiently clear that local authorities can assist parents in this way until now and I am pleased that this amendment gives me the opportunity to clarify the position.

Where parents or a young person make alternative arrangements, the local authority must satisfy itself that those arrangements are suitable before it is relieved of its duty to secure the provision. It can only conclude that arrangements are suitable if there is a realistic possibility of them being funded for a reasonable period of time. If it is satisfied, the authority need not name its nominated school or college in the plan and may specify only the type of provision. This is to avoid the school having to keep a place free that the parents have no intention of taking up. If the local authority is not satisfied that the parent or young person’s alternative arrangements are suitable, it could either name another appropriate school or college in the EHC plan or assist parents in making their arrangements suitable, including, if they consider it appropriate, through a financial contribution, though it will be under no obligation to meet the costs of those arrangements.

Where parents make suitable alternative arrangements for educational provision, the health commissioning body is still responsible for arranging the healthcare specified in the child or young person’s EHC plan. If parents make alternative arrangements for healthcare provision, then the health commissioning body would need to satisfy itself that those arrangements were suitable. If the arrangements were not suitable, they would arrange the provision specified in the plan or, if they felt it appropriate, assist the parents in making their own arrangements suitable. We will, of course, clarify this position in the SEN code of practice. I beg to move Amendment 38A.

[Baroness Massey of Darwen (Lab)]

My Lords, I thank the Minister for introducing this group of amendments so comprehensively. Amendment 42 is a probing amendment and the issues in it have been discussed before. The noble Countess, Lady Mar, has asked me to give her apologies for being absent. She emailed me about two hours ago to say that she was on the point of going to the operating theatre to have her appendix out. How she e-mailed at that time, I do not know, but I was asked to pass on the message and I have done so.

[Lord Lucas (Con)]

My Lords, I am grateful to the noble Baroness for such a clear and extensive explanation of this amendment. As she will know, it is a very important word when it comes to the home education community and I think that her explanation has provided all the comfort that they need as to what their situation will be in the future.

[Baroness Northover]

I thank noble Lords for their support and I wish the noble Countess, Lady Mar, well.

Amendment 38A agreed.

Clause 43: Schools and other institutions named in EHC plan: duty to admit

Amendment 39 not moved.

Amendment 39A had been withdrawn from the Marshalled List.

Clause 44: Reviews and re-assessments

Amendment 39B

Moved by

[Lord Nash]

39B: Clause 44, page 35, line 9, leave out “his or her age” and insert “whether the educational or training outcomes specified in the plan have been achieved”

[The Deputy Speaker (Baroness Harris of Richmond)]

If Amendment 39B is agreed to, I cannot call Amendment 39C by reason of pre-emption.

Amendment 39B agreed.

Amendment 39C not moved.

Clause 45: Ceasing to maintain an EHC plan

Amendment 39CA not moved.

Amendments 39D and 39E

Moved by

[Lord Nash]

39D: Clause 45, page 35, line 37, leave out “child or young person” and insert “young person aged over 18”

39E: Clause 45, page 35, line 39, after “educational” insert “or training”

Amendments 39D and 39E agreed.

Amendment 39F

Moved by

[Baroness Sharp of Guildford]

39F: Clause 45, page 35, line 41, leave out subsection (4)

Amendment 39F agreed.

Amendment 39G not moved.

18:30

Clause 47: Transfer of EHC plans

Amendment 39GA

Moved by

[Lord Lingfield]

39GA: Clause 47, page 36, line 29, at end insert—
“( ) Regulations shall make provision to specify those sections of an EHC plan prepared for a young person that must be transferred into—
(a) a needs assessment for disabled students’ allowances for that young person; or(b) any other assessment of need concerning the access of that young person to higher education.”

[Lord Lingfield (Con)]

My Lords, I put down a probing amendment in Committee which was meant to draw attention to the position of young people with EHC plans at school when they enter university. Your Lordships will remember why we welcomed the EHC plan carrying on to age 25 for those engaged in further education and other courses, but the process seems—illogically—to start again for those entering higher education. During the debate there was a general view, with which I concurred, especially from the noble Lord, Lord Low, and my noble friends Lord Addington and Lord Lucas, that regulation and guidance should focus on making the transitional arrangements between school or college and higher education as easy as possible for the students concerned. The point was made that it was not clear how the Bill would improve the current imperfect arrangements.

The Minister’s reply was encouraging; she agreed with this aim but stated that universities, not local authorities, were the best places to support young people at this transition period. She also said that local authorities should encourage young people to make an early claim for disabled student’s allowance so that support is in place when their courses begin. No one could disagree with this.

However, not all local authorities are good in their communications with young people with disabilities and, of course, the earliest that a student usually can begin these negotiations with universities is at the end of August, when A-level results lead to the confirmation of the offer of a course to begin some seven or eight weeks afterwards. Whereas universities—as the Minister pointed out—have a good record of publishing their objectives for the disabled, their record in achieving them is patchy throughout the system. We are told this by parents and students.

Section 7.19 of the code of practice sets out the Government’s expectations on transition and, although it is limited to four paragraphs, it contains some positive elements. For instance, it states:

“Where a young person with an EHC plan makes a claim for DSA, local authorities must (with the young person’s permission) pass a copy of their Plan to the relevant DSA assessor, to support and inform the application”.

However, it is not clear what “support and inform” will mean in practice. At best it could mean that the EHC plan is accepted in full as part of the DSA assessment, but the wording is too vague for us to be confident about this.

My amendment, which is a probing amendment, would add further subsections to Clause 47 which would require regulations to be made to specify those sections of an EHC plan that must be transferred into the needs assessment for the disabled student’s allowance—or, indeed, into any other formal assessment of need for other sources of funding which might become subsequently available. Obviously, the needs of young people with disabilities can change at university: what might be appropriate provision, for instance, for someone with profound hearing difficulties in the school classroom may not necessarily be suitable for a large lecture theatre at university.

My point is that a student entering university should have the same continuity of protection via the contents of his or her EHC plan as a student entering further education. I hope that the Minister will reassure me that the regulations will be strengthened, even if not necessarily in the way that the amendment suggests, in order to ensure that this is so, and to give comfort to many young people and parents who are very concerned about this. I beg to move.

[Baroness Northover]

My Lords, I am grateful to my noble friend Lord Lingfield for his amendment and for the eloquent way in which he put his important case. As my noble friend will know, we very much share his ambition to support young people with SEN and disabilities into university. We must have high expectations for these young people and provide the right provision and support through EHC plans to help them achieve their goals.

My noble friend pointed to the value of the disabled student’s allowance. DSAs, of course, are not means tested but are awarded in addition to the standard package of support and do not have to be repaid, and it is encouraging to see the take-up of DSA in this area. He is also right that we should do everything we can to ensure that young people get the support that they need and that the assessments for the new types of support build on what they had before rather than starting from square one—that was his key point.

Following debate on the issue during earlier stages of the Bill, we made some important improvements to the draft assessment and plan regulations, and to the draft code of practice. I hope that my noble friend will be reassured by those. The changes make it clear that local authorities must share a copy of the EHC plan with the relevant higher educational institution and with the DSA assessor—with the young person’s consent, of course—and that local authorities should make young people aware of the support available to them in higher education through their local offer, including the disabled student’s allowance, and how they can make an early claim so that support is in place when they start their course.

Our intention here is very similar to that of my noble friend. We want the valuable information contained within an EHC assessment to be shared both with the person assessing them for the disabled student’s allowance and with the institution they are planning to attend so that other provision may be made, as appropriate, in line with the institution’s own policies. I hope my noble friend will agree that creating further regulation in this area is unnecessary. I appreciate the flexibility of approach in his amendment.

The information within an EHC assessment is extremely valuable, but it will be only a starting point. When young people take up a place in higher education, they are starting a new phase of their education in which they will be expected to develop a different approach to learning. My noble friend recognised this. Higher education courses vary greatly in terms of content, delivery and assessment across institutions and subjects. It is therefore appropriate for a new assessment to be conducted to ensure that young persons get the support that they need in their new environment.

We are happy to look at the detail of the revised code of practice to ensure that we get the balance right, and we would be happy to receive any further advice from my noble friend in that respect. I hope that I have reassured him that we agree with what he is seeking to do, and I hope that he will withdraw his amendment.

[Lord Lingfield]

My Lords, I thank the Minister for her reply, which gives me much reassurance. The tightening of the code of practice will lead to better legislation than that which we faced in Committee. I look forward to hearing more and possibly discussing this with the noble Baroness. In the mean time, I beg leave to withdraw my amendment.

Amendment 39GA withdrawn.

Clause 48: Release of child or young person for whom EHC plan previously maintained

Amendments 39H to 39L

Moved by

[Lord Nash]

39H: Clause 48, page 36, line 32, leave out “custodial sentence” and insert “detention order (within the meaning of section 562(1A)(a) of EA 1996)”

39J: Clause 48, page 36, line 36, after “was” insert “—
(i) ”

39K: Clause 48, page 36, line 37, leave out “custodial sentence.” and insert “detention, or”

39L: Clause 48, page 36, line 37, at end insert—
“(ii) kept for him or her under section (Duty to keep EHC plans for detained persons) during the detention.”

Amendments 39H to 39L agreed.

Clause 49: Personal budgets and direct payments

Amendment 40 not moved.

Clause 51: Appeals

Amendment 40A

Moved by

[Lord Rix]

40A: Clause 51, page 38, line 42, at end insert—
“(g) the social care provision specified in an EHC plan;(h) the healthcare provision specified in an EHC plan.”

[Lord Rix]

My Lords, Amendment 40A, supported by my noble friends Lord Low and Lady Hollins, seeks to create a single point of appeal across education, health and care. If we are to create a joined-up system across education, care and health, we must apply the same principle to an appeals process. The case was well made by noble Lords in Committee, and I know that the Minister sympathises with the arguments.

My concern is for parents whose sons and daughters have profound and complex needs that cut across education, care and health. If in September this year the provision set out in the plans is not up to scratch, parents could end up appealing left, right and centre, across three very different cultures—from the SEN tribunal, to the health ombudsman and on to the social care chamber. Ultimately, this is about making the system run smoothly so that parents can get on with just being parents—often, as I say, to children with the most complex needs. I fear that unless we do something, parents will remain knee-deep in a quagmire of different agencies, desperately battling for support so that their sons and daughters can, rightly, achieve their aspirations.

The noble Baroness, Lady Hughes, has tabled an amendment that could see a review looking at the feasibility of bringing appeals for education, health and care together. It seems that it is a case of fix now or fix later. For the sake of disabled children and young people, and their families, I hope that whatever the outcome, the fix is soon. I beg to move.

[Lord Low of Dalston]

My Lords, I have my name on the amendment and give my noble friend Lord Rix my full support in moving it. The case seems self-evidently made and I do not wish to add a great deal to what my noble friend has said.

The raison d’être of this legislation, by and large, is the Government’s attempt to sweep away the barriers of bureaucracy which, it has been well attested, have come between parents, families, children and young people and the assertion of their rights in relation to special educational provision. The Government have, very laudably, brought forward this legislation to try to tackle some of those barriers by developing an integrated system of provision through the integrated education, health and care plan.

We said in relation to an earlier amendment that it does not make much sense to put things in an education, health and care plan and give people the right to enforce provision only in one or maybe two areas but not a third. Equally, it does not make any sense to create an integrated system of provision using education, health and care plans, with a view to sweeping away barriers of bureaucracy by putting in place an integrated system of provision, and then give people a wholly unintegrated system of enforcing their entitlement to what is specified in those integrated education, health and care plans.

18:45

The Government seem to have got themselves into an impossible position here. You cannot possibly say that what you are trying to do with this legislation is sweep away barriers of bureaucracy and then require that, when people try to assert their rights under the integrated system of provision that you have put in place, they may have to go round three different places to assert their entitlements under different parts of the plan. It seems that the Government are really on a hiding to nothing here and must give some ground.

I know what the problem is. I think the Minister and the Department for Education fully agree with us—it is their Bill and they want to see this integrated system of provision, with people being able to assert their entitlements under it and bureaucratic barriers swept away—but the department’s problem is that they have to get other government departments to co-operate with this vision, and they do not always do so. Although the Department for Education may be perfectly happy to put in place a system of appeal regarding educational provision, the department lacks the power to get the Department of Health to help it put in place not separate systems of appeal but an integrated, one-stop-shop system of appeal. This is not just the Department for Education’s problem but the Government’s problem and it needs to be sorted out at a cross-governmental level.

I know the Minister shares our concern about this and I hope that he will be able to give us some indication that he is making progress in achieving a genuinely integrated cross-governmental approach. I know he is trying and I very much hope that he will be able to give us some comfort with what he tells us about the progress he is making. If he is not able to succeed, we will pass into law a brilliant system of integrated provision through education, health and care plans—which we are improving by the minute with these amendments, many of them the Government’s own, which we are passing today to make the system ever more integrated—but we will be in danger of passing a very nice system of provision into law with a completely unintegrated system of asserting children’s and families’ rights under it.

[Baroness Hollins]

My Lords, I, too, added my name to this amendment. My noble friends Lord Rix and Lord Low have eloquently set out the logical intention behind the request to create a single point of appeal across education, health and care. If we are to create a truly joined-up system that really works for children, young people and their parents, this seems to be an absolute necessity. I speak as a parent who has worked hard to get the right support across all three systems and cultures for my son. The Government propose a single point of assessment, but the same old separate routes for redress and complaint, which will continue to bewilder and confront parents. We should aspire to more.

To focus on health needs for a moment, there are significant concerns among those in the sector that the health service is far from prepared to deal with appeals for the new plans when they are introduced from September this year. We should be mindful of the culture in which complaints and appeals happen in the NHS, and it is not quite clear where parents who are concerned about the health component of the plan would start. Ann Clwyd’s excellent recent report concluded that the NHS complaints system was confusing, lacked accountability and was subject to often long and frustrating delays. The system has been particularly unsatisfactory in the face of complaints from families of people with a learning disability.

Prior to a debate that I secured last year on the premature deaths of people with a learning disability, I met with a number of families who had lost loved ones to neglect and discrimination within the health service. Their experience of going through the NHS complaints process was that, in addition to being overbureaucratic and time-consuming, it was very defensive. They explained that it took years in many very serious cases to receive any sort of answer. A single appeal process for a single education, health and care plan might help us move closer to the joined-up system we are looking for, and ultimately help parents get what is needed for their sons and daughters.

[Lord Storey]

My Lords, I, too, moved an amendment in Committee on a single point of appeal. It beggars belief that you would have progressive legislation that creates for the first time a joined-up approach to education, health and social care but not a joined-up approach to an appeals mechanism. Everybody I have spoken to agrees with that.

Of course, the problem is the current systems that we have, so the notion is that we establish a Bill that creates single education, health and social care plans but then the appeals mechanism is threefold. We expect in this child and family-friendly approach for parents then to navigate their way through these different systems. Currently, the health appeals mechanism is not very transparent and on patient or family satisfaction ratings is very low indeed. Local authorities, as we know, vary.

What do we need to do? First, the code of conduct very much highlights the need for mediation—but it talks about mediation in terms only of education, not on the health and social care side. I hope the Minister might respond by telling us how we bring the mediation together for all three strands of the plan. In my view, mediation could considerably reduce the number of people wishing to appeal.

Then you come to the appeals mechanism itself. Whatever happens here today, I am utterly convinced that, in the years that follow, there will be one tribunal for these plans. The difficulty is the bureaucratic systems, as eloquently extolled by the noble Lord, Lord Low. Currently, the bureaucracy is not fit for purpose. My great fear is that we push the bureaucracies to agree one tribunal, they go kicking and screaming, and the whole thing does not work. We have to negotiate and make sure that everybody is on board to make this happen. Having talked to Ministers in health and education—though having been slightly disillusioned by officials—I am sure that we can achieve that eventually. We need to give my noble friend Lord Nash more time to continue those negotiations. Again, as has been said, I am sure that on the education side we all agree.

[Baroness Hughes of Stretford]

My Lords, I support Amendment 40A moved by the noble Lord, Lord Rix, and colleagues. We supported him on this in Committee and it would still be our first preference as it would add health and social care provisions to the list of matters in respect of which children, young people and families could appeal to the First-tier Tribunal.

This was first moved in Committee by the noble Lord, Lord Storey, as he just reminded us. I recall that he subsequently said, as he has just done so, that he was unsure as to the feasibility of this approach in terms of the technicalities. For that reason, because we may not be able to evaluate those technicalities at this point, we have tabled Amendment 40B, which I will refer to in a moment. I do not know if the comments of the noble Lord, Lord Storey, mean that he would support that amendment but it has the intention of giving the Government time to resolve whatever the issues are.

As other noble Lords have said, the issue is simple: the Government want to establish an integrated system for meeting better the needs of disabled children and those with special educational needs. That integration would be at the point of assessment and planning education, health and social care. However, as the Bill stands, that integration is blown apart at the point of appeal. As we have heard, parents and young people would potentially have to go through three different routes of appeal simultaneously for the three different elements of their plan. Like the noble Lords, Lord Low and Lord Rix, I sense that behind this is the considerable resistance from the Department of Health and the Department for Communities and Local Government to any change.

Having previously been a Minister for some time, I feel quite strongly that agencies should bend for the benefit of families. Families should not be imposed with the burden of mobilising three bureaucratic systems that just happen to exist. It is the job of all of us, particularly the Government, to make those agencies bend, albeit by negotiation and discussion, to make the system work for the people that we are here for.

In a letter to noble Lords, the noble Lord, Lord Nash, said that the tribunal is only for special educational needs, and that, as we have heard:

“There are established routes of complaint about social care through the local authority complaints procedures”,

and, for health, to the health complaints procedure and the health ombudsman. That is not adequate, even if local authority and health appeals systems were simple—and they really are not, even for a Member of Parliament. I see the Minister for Children at the Bar and I am sure he will have tried to mobilise those complaints procedures on behalf of his constituents. It takes for ever, it is labyrinthine, it is completely not transparent and it is very bureaucratic. The idea of parents doing that on three fronts at once is simply unimaginable. There should be a single point of appeal and we support Amendment 40A.

However, should that not prevail tonight and the Government not accept it, we have tabled Amendment 40B which would require the Government actively to seek a way to secure a single point of appeal and to report back to Parliament within a year. That would keep the possibility alive. It would require the Government to do what they have not done and maybe have not had time to do so far: namely, to find a way to make this work for parents and families, to take on the resistance of those agencies and, if necessary, to change the law to establish a single point of appeal.

I am afraid that I do not share the optimism of the noble Lord, Lord Storey, that without anything done this evening there will at some point in future be a single point of appeal. I was constantly surprised and depressed by the inability sometimes to change some of our big public organisations. Without the drive and initiative from this and the other place, I do not think that will happen. I hope the Minister will take that on board.

[Baroness Howarth of Breckland]

My Lords, I support Amendment 40A but particularly Amendment 40B. I agree absolutely with the principle of Amendment 40A but believe that the complexities that need working through to get a single point of entry are so great that we need some sort of driving project.

However, I sincerely believe that we need that single point of entry. Everyone has said how difficult it is for families to negotiate the different kinds of tribunal. I remind noble Lords that these families are struggling with children with severe disabilities. One thing they do not have is time. If you have a disabled child, it takes three times as long, if not more, to do anything, so you are immediately short of time. These negotiations then cut into what time you have. You are also short on emotional energy. If you have been through any sort of tribunal—I have been through a few in my time in a number of different positions—you know the emotional energy that it takes. Disabled children drain emotional energy, much as you love them.

The other thing is that the information you need for the different points of entry is extremely complex. Many families are poor, have not had educational advantage and do not always have the help of someone to take them through the information to enable them to understand it. Were the Government to achieve one different kind of tribunal, perhaps an independent tribunal, it would be more efficient and more economic, because there would be fewer people involved and less time used up.

I have to say that no Government have achieved that yet. No Government have managed to bring health, social care and education systems together. It would be a real triumph were this Government able simply to take a project through to consider the issues and complexities involved and what would be possible to make life so much easier for families who are already struggling emotionally and with their time in trying to care lovingly for a disabled child.

19:00

[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak, but I have been listening to this argument with considerable interest from the outside. The present system of appeals, and the other ways in which social care and health are dealt with, does not seem sensible and something ought to be done about it. I have to say that my heart goes with Amendment 40A and my head with Amendment 40B. I can see from what has already been said that there are some formidable obstacles to achieving the desirable end—but it is a desirable end, and it really is time, in an admirable Bill such as this, to tackle some of the more difficult themes.

I see that the noble Lord, Lord Storey, may be too optimistic, and that it would be sensible to have some spur to encourage the Government to get somewhere rather than going away and saying, “Yes, in principle we think that this is a good idea but it is extremely difficult. We have problems with the Department of Health and social services and we are not sure, with everything else that we have to do, that we can achieve it”. The advantage of Amendment 40B is that it would be a spur to getting something done. I put in a plea: the present system is not sensible and something ought to be done, and put not into the long grass but into the short grass.

[Baroness Howe of Idlicote (CB)]

My Lords, rather like my noble friend who has just spoken, from listening to the arguments, I feel it is clear that something pretty sharp has to happen. I am assuming that one can have both the amendments. If we can, I am in favour of both of them.

[Lord Nash]

My Lords, I thank the noble Lords, Lord Rix and Lord Low, and the noble Baronesses, Lady Hughes, Lady Hollins and Lady Jones, for tabling the amendments, for their contributions and for bringing their experience to this debate.

Several noble Lords have been kind enough to discuss with me their questions and concerns about the complaints process for children and young people with SEN, including the noble Lords, Lord Rix and Lord Low, and my noble friend Lord Storey. I have been listening carefully to these points and have discussed them at length with my honourable friend the Minister for Children and Families.

Noble Lords have been right to press the Government hard to deliver an integrated complaints procedure to respond to the needs of a more integrated system. First, I reassure noble Lords that work is already in hand to improve the situation. The new code of practice will require that impartial information, advice and support is commissioned through joint arrangements and 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 including information on their local health offer on their website. A one-stop shop will be simpler and much more parent and young person-friendly than having to go to more than one place for advice on a range of issues, including how to complain.

Today, my honourable friend the Minister for Children and Families, who has vast direct personal experience in this area, announced a £30 million package to provide children and young people with SEN and disabilities and their parents with independent support to help them through the new SEN assessment and education, health and care planning process. This funding will be available between April 2014 and March 2016. The aim is to have around 1,800 trained independent supporters from the private, voluntary and community sectors in place by autumn 2014. That equates to about 12 individuals, on average, in each local authority area in England.

This will ensure that many families have access to informed advice and support at a time when the system is changing and new processes are bedding in. These independent supporters will be independent of the local authority, but they will need to work with local authorities and other statutory agencies to help families get the support they need. Where there is disagreement, independent supporters will make sure councils understand what families want, and help families to challenge decision-making. This will mean that children and young people with SEN get the help they really need across education, health and care. This is a major step forward.

On the health side, noble Lords will also be glad to hear that work is under way on how NHS complaints are handled, in the light of the Francis report and the review undertaken by the right honourable Ann Clwyd MP and Professor Tricia Hart into the NHS hospitals complaints system. The Government want to ensure that when things go wrong, the complaints system is clear, fair and open, and that at every level, the NHS scrutinises and learns from mistakes to improve care for patients.

The Parliamentary and Health Service Ombudsman, Healthwatch England and the Department of Health will work with the Patients Association, patients, regulators, commissioners and providers to develop universal expectations for the handling of complaints. These will be used across the NHS to drive improvements in patient satisfaction with complaint-handling. This will benefit children and young people with SEN, so we should be wary of establishing a new set of arrangements for this one group without allowing the wider suite of reforms on NHS complaints to establish itself.

Turning to why extending the remit of the tribunal is difficult, the issues here are extremely complicated. It is tempting to extend the tribunal’s remit across health and social care, but there are legitimate reasons why we cannot do so at this point. Local authorities’ duty to arrange provision that will meet the special educational needs of a child currently with a statement, or, in future, a child or young person with a plan, is absolute. The local authority has to arrange that provision no matter what the cost. This means that when the tribunal makes a decision that will increase the special educational provision for one child, that will have no effect on other children with statements because the local authority has the same absolute duty to arrange provision that meets their needs as well.

The position is different with health and social care. The authority is making decisions having regard to the health and social care needs of the whole population. We have already discussed the issues around social care in some detail. This means that, if the tribunal were to be given powers to make decisions in those areas, any decision the tribunal made to increase provision for one child or young person could mean that other children or young people with similar or even greater health or social care needs could be deprived of provision they require. It would therefore be wrong to give the tribunal the powers implied by the amendment.

The issues are significant. None the less, we should consider what more we should do now better to integrate complaints across services. This is a matter of concern to Ministers in both the Department of Health and the Department for Education. Building on our commitment to funding for key workers to help parents who need to navigate the system, we agree that there is more to be done to ensure that redress works well and feels joined up, where it needs to, and that we will need to keep that under review as the reforms are implemented.

We would therefore be grateful for the opportunity to discuss these issues further with noble Lords before Third Reading to ensure that we can confirm a strong package by that point. The things that we particularly would like to look at include: the role of mediation, including the scope to extend the arrangements in the Bill to cover health and social care as well as special education; notwithstanding the concerns I have set out, whether there could be a role for the tribunal in joining up redress across education, health and care; and what arrangements we should put in place to review how redress works once the new system is bedded in and in the light of wider reforms to complaints in the health service.

I assure noble Lords that that is something that we are taking seriously and about which we are in active discussions, which will continue, with the Department of Health. In view of what I have said, I urge noble Lords not to press their amendments.

[Lord Rix]

My Lords, this is like opening a Christmas stocking, is it not? You are never quite sure what is going to come out next. The idea that we will be given time to discuss this matter in more detail before Third Reading is a promise which has great merit. To a certain extent it answers the noble Lord, Lord Storey, on his problems, and the noble Baroness, Lady Hughes, who was asking for an extension of up to a year before any final decision were taken. If we can make a decision before Third Reading, it will be quite incredible. I would obviously welcome that, because my amendment is asking for immediate effect, but I am very happy to attend any meeting which makes this possible. Even at Third Reading, if some sort of promise is made to continue the review along the lines laid down by the noble Baroness, Lady Hughes, again, I am sure that I would support that. Without knowing quite what the noble Baroness is going to say, I beg leave to withdraw my amendment.

Amendment 40A withdrawn.

Amendment 40B

Tabled by

[Baroness Hughes of Stretford]

40B: After Clause 51, insert the following new Clause—
“Single point of appeal: review
(1) The Secretary of State will, within a year of this Act coming into force, carry out a review to assess the feasibility of enabling a child’s parent or a young person to appeal to the First-tier Tribunal in relation to the healthcare or social care provision specified in an EHC plan.
(2) In undertaking a review under subsection (1), the Secretary of State will pay particular regard to the need for an integrated appeals process.
(3) The Secretary of State will publish, and lay before both Houses of Parliament, a report setting out the conclusions of the review.”

[Baroness Hughes of Stretford]

On the basis of what the Minister has just said, I will not press this amendment. However, I say to him that whatever strengthening he may propose in terms of mediation, that is not the same as moving towards an integrated system of appeal. We will need to see some substantial progress towards that, or a route map for getting there along the lines of Amendment 40B, if we are not to rehearse this debate and put the amendment again at Third Reading. I hope that he does not mind my making that clear.

Amendment 40B not moved.

Clause 57: Special educational provision otherwise than in schools, post-16 institutions etc

Amendment 41 not moved.

Clause 59: Fees for special educational provision at non-maintained schools and post-16 institutions

Amendments 42 and 43 not moved.

Amendment 43A

Moved by

[Lord Low of Dalston]

43A: After Clause 61, insert the following new Clause—
“Guidance on duty to maintain a register of disabled children and young people under section 17 of the Children Act 1989
The Secretary of State shall issue impairment specific guidance, whether in regulation or otherwise, to local authorities on how they can most effectively discharge their duty to maintain a register of disabled children and young people under section 17 of the Children Act 1989.”

[Lord Low of Dalston]

My Lords, Amendment 43A addresses a comparatively specific range of concerns, so I shall use my best endeavours to speak to it comparatively briefly. In a meeting that I attended earlier today, I was told that the obligation to use my best endeavours laid on me a pretty heavy obligation.

In Committee, I introduced an amendment to require local authorities in England to establish and maintain a register of sight-impaired and severely sight-impaired children and young people ordinarily resident in their area. The Care Bill currently going through Parliament lays a duty on local authorities to establish and maintain registers of sight-impaired and severely sight-impaired adults. It seemed odd, therefore, that no such obligation in relation to sight-impaired and severely sight-impaired children was included in this Bill. These registers play a critical role in enabling local authorities to assess population-level need for specialist visual impairment services and support, and to plan for their provision. The Government argued that an obligation to maintain registers of disabled children exists under the Children Act 1989, but there is a lot of evidence to suggest that this obligation is widely disregarded and, in any case, is not effective. The RNIB—and here I declare my interest as a vice-president of that organisation—has recently discovered by means of a series of freedom of information inquiries that a fifth of local authorities do not have a register of disabled children at all.

19:15

The Minister agreed in Committee to meet me to discuss the matter, and I am grateful to the Minister and the officials for the discussions that we have had. Given the requirement to maintain registers of disabled children, the Government are understandably reluctant to introduce a requirement to maintain further impairment-specific registers. The Government’s view is that the best way forward is to make the requirement to maintain the registers of disabled children effective rather than start setting up further impairment-specific registers. This amendment is therefore designed to assist the Government in this enterprise and give them the necessary tools by providing that the Secretary of State should issue guidance on how local authorities can most effectively discharge their duty to maintain registers of disabled children under the Children Act 1989. It is a modest and, I hope, helpful amendment. I hope very much that the Minister may be willing to accept it. I beg to move.

[Baroness Northover]

My Lords, this debate builds on previous discussions which we have had as the Bill has progressed. We had a particularly important debate before Christmas on the need for high-quality data to inform decisions about the necessary support for families. I thank the noble Lord, Lord Low, for his engagement in this area and his promotion of it.

Local authorities have a duty under Section 17 of the Children Act 1989 to maintain a register of disabled children in their area. This will remain unchanged by the Care Bill, which applies only to adults. I recognise, however, that the noble Lord, Lord Low, remains concerned that the registers of disabled children are underused and that they lack the detail needed to support effective planning of services, in particular for blind or visually-impaired children. It may well be that some local authorities do not adequately maintain their registers at the moment. We agree that guidance is important in addressing this issue, which we believe is one of practice rather than legislation, as the noble Lord indicated. We do not think that a new power to issue guidance is necessary.

In our debate before Christmas, noble Lords welcomed amendments to the Bill requiring disabled children to be included within the scope of a number of significant clauses in Part 3. These include: local authorities identifying children and young people in their area who have or may have SEN, in Clause 22; joint commissioning arrangements, in Clause 26; reviewing the special education and care provision that is available locally, in Clause 27; and the local offer, in Clause 30. I am pleased that noble Lords welcomed these amendments, which are a significant change to the Bill. They also provide a greater incentive to use the SEN code of practice, which provides statutory guidance on these and other duties under the Bill, to include guidance on issues relating to disabled children and young people.

Within the code, we will now require that local authorities have a clear picture of the numbers of disabled children within their area, including in particular data on low-incidence needs such as visual impairment or hearing impairment. We will also make clear—as we have in the existing code—that local authorities remain under a duty to maintain a register of disabled children and that these registers are particularly important in fulfilling the duties that I have just set out.

Placing this guidance within the core SEN code of practice will mean that the duties of the local authority are clearly and explicitly set out in the main statutory document that local authorities and their partners consult practically daily and which they must have regard to. This also avoids the potential for confusing or contradictory requirements across different sets of guidance. The guidance in the code will ensure that there is no doubt over the need to maintain registers of visually-impaired children and link this need clearly to the local authority duties under the Bill. I hope that the noble Lord is reassured and I urge him to withdraw his amendment.

[Lord Low of Dalston]

My Lords, I am grateful to the Minister for her reply. I am reassured by what she says—that the Government have certainly got hold of the issue and its importance. The important thing now is to make sure that local authorities get hold of it. I am not 100% reassured by the undertaking to ensure that it is included in a code of practice that gets thicker by the minute as we put new things in it. This provision seems the kind of exhortation that could easily get buried among a lot of other, more high-profile stuff.

Could the Government meet me one step further? The Minister kindly offered to include the issue in the code of practice. Not only that, but when the code of practice is circulated, as it will be, could they specifically draw the issue to local authorities’ attention as an important requirement that they have to give considerable attention to? That would be particularly helpful. When the code of practice is circulated, there will be ancillary communications surrounding it, laying emphasis on the importance of this and that aspect. If the Minister would agree to put something in those supporting communications to draw attention to the importance of maintaining the registers, for the point of view of the data that they provide and the opportunity for identification of need and planning that they—

[Baroness Northover]

Maybe I could reassure the noble Lord that we will highlight the importance of the duties when we write to local authorities about the implementation of the Bill.

[Lord Low of Dalston]

Now I am about 99.9% reassured. That is very helpful and I am grateful to the Minister for it. On that basis, I beg leave to withdraw the amendment.

Amendment 43A withdrawn.

Clause 62: Using best endeavours to secure special educational provision

Amendments 44 and 45 not moved.

Amendment 45A

Moved by

[Lord Addington]

45A: Clause 62, page 45, line 40, at end insert—
“( ) On using their best endeavours to fully meet the special educational needs of a registered student at a school or other institution, the school or other institution must undertake an audit of the skills and knowledge of its workforce to deliver a graduated approach to special educational provision.”

[Lord Addington]

My Lords, the three amendments in my name—Amendments 45A, 46A and 46B—all have at heart addressing the idea of training for teachers in the skills required to deal with special educational needs. This is primarily inspired by my work with the British Dyslexia Association; I draw the House’s attention to my interests in this area. I am trying here to clarify how the Government propose using the code, and the ongoing need to train teachers in how to deal with the issue.

The first amendment is about the whole school: what basket of skills is required to deal with these people? Identification is an important part of this. Unless you know what you are looking for, hidden disabilities—dyslexia, dyspraxia—are quite easy to miss. I do not really have to draw on much evidence to say that it has happened throughout the history of organised education. We have got it wrong, and inappropriate training often leads to very negative results for those concerned.

I appreciate that the Minister—my noble friend Lord Nash—has given me some assurances, particularly for the amendment that deals with SENCOs, but actually there I suggest that the person in charge of the overall position get a bit more specific knowledge. The Minister has moved quite a long way already on this, and I thank him, but a little more specific knowledge about the actual nuts and bolts of the subject would be helpful.

The really beneficial provision here is on something that I think will come back, if we do not get it through today: initial teacher training. Some 10% of the population of any school, and indeed of the population as a whole, is dyslexic according to the British definition; you can stick in 3% for dyscalculic and dyspraxic, and you can stick in ADHD and one or two other problems. Those are the hidden problems. If you know what you are looking for, you have the opportunity to call in help and support, and not to make the classic mistake of saying, “Work harder”, which leads to a very negative educational experience. Such an experience invariably leads to the child either being disruptive in the classroom, or doing that wonderful disappearing act into the middle of it and making damn sure that they do not pay any attention to the class and that the class pays no attention to them.

If the Minister can assure us how the Government will work towards the goal of making sure that the entire establishment, and the individuals themselves, are better prepared to provide the help and support that will lead to better outcomes, I will be very much reassured. I beg to move.

[Lord Storey]

I pay tribute to my noble friend Lord Addington. I used the expression “a dog with a bone” in Committee. He has stuck with this issue and made real progress on it. I also congratulate the Government, because we have now seen real movement: there have to be properly qualified special educational needs co-ordinators in schools. That is real progress, and the Government are to be congratulated on taking that important step.

My noble friend rightly points out two areas. One is the need to ensure that all teachers, particularly those in primary education, have training—perhaps a unit of training—in special educational needs. Every report has shown that the two crucial elements are early identification of a problem and providing the resources to deal with it. I hope that we might see movement on that. Maybe we can move towards a road map for how we ensure that all teachers going into our schools have an understanding of—maybe a qualification in—of special educational needs. I have forgotten the second issue, so I will sit down.

[Baroness Howe of Idlicote]

My Lords, I very much support the noble Lord, Lord Addington, in his pursuance of the subject. He obviously is an expert and is quite right to pursue the area, one of growing need—and not just need, but growing complexity as we begin to understand the various subsections of need that there are in SEN.

SEN co-ordinators are a good new grouping, but there is an important role for school governors. I would like to see a member of the governing body take on a genuine responsibility in the area. That would be a practical way to deal with it, not least when we have a range of education provision with rather different requirements.

I hope that we will see rather more happening in the area, but we should not forget the importance of ensuring the early intervention that has already been mentioned, and on which there was an interesting question today during Questions. It indicated that the earlier you can get to grips with this, the better. There must also be areas of retraining for teachers—not just initial training, because it will take a long time for that to infiltrate right across the spectrum. With retraining, teachers can be made much more up to date in the current needs of this vital area.

19:30

[Baroness Jones of Whitchurch]

My Lords, I support these amendments in the name of the noble Lord, Lord Addington. I echo the comments that have been made about his diligence and determination in pursuing these issues. He has today, in his usual style, made a compelling case for the quality of special educational needs co-ordinators in schools to be ensured though appropriate professional development and training, and for all teachers to undergo an SEN module.

That would ensure that all teachers were aware of the range of SEN characteristics that could be identified and the range of services available to support and assist all young children. It would also avoid the SEN responsibility being given to a member of staff who was not prepared to undergo the training to carry out the functions seriously. In other words, it would protect children from the possibility of it becoming a box-ticking exercise in which the school could claim that the requirement had been met without anyone with the requisite skills actually being available. We feel that this ought anyway to be a feature that Ofsted routinely inspects in schools.

We rehearsed these arguments in Grand Committee, and the case was well made then for the importance of early identification and intervention to support children with special educational needs; that can make all the difference to the child’s subsequent education and life chances. The requirement in the Bill to have a comprehensive range of SEN co-ordinators is of course a good step forward, which we welcome, but these amendments would build in the extra requirement for skills and quality, which we also think are important.

The Bill talks of possible regulations in this area and obviously some of the detail of these requirements could, quite rightly, be included in regulation. However, the principle of qualifications and training for what is a specialist field is too important simply to be left to regulation, so we support this requirement being in the Bill and hope that the Minister will be able to reassure us that this will be the case.

[Lord Nash]

My Lords, I thank my noble friend Lord Addington for tabling these amendments and leading the debate on this important issue of ensuring that schools and other institutions have the right expertise within their workforce to support children and young people with special educational needs. I cannot disagree with my noble friend’s intentions. Ensuring that we have a well trained workforce is essential, and is something that this Government are committed to doing. I hope that I can reassure my noble friend that it is possible to achieve this aim without placing requirements in the Bill.

Schools and other institutions that support children and young people with SEN must build the appropriate skills for their staff, and the draft 0-25 SEN code of practice makes that clear. Chapter 6 of the draft code requires schools to make sure that teachers’ ability to meet SEN is included in the school’s approach to professional development and in their performance management arrangements for all teaching and support staff. The chapter also 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. This would particularly cover issues such as dyslexia, which my noble friend has spoken passionately about on a number of occasions.

I mentioned in Committee that the latest newly qualified teacher survey, which at that point had not yet been published but was nevertheless giving off strong signals, reveals that teachers feel that the quality of their training in SEN has improved significantly in recent years. Just 5% of newly qualified teachers surveyed this year rated their training in SEN as poor, while 69% of primary teachers and 74% 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 secondary in 2008. I am sure that noble Lords will agree that this is a significant improvement, and I am sure that we all welcome it.

Furthermore, initial teacher training courses must ensure that they enable trainee teachers to meet the Teachers’ Standards. These standards define the minimum level of practice required of teachers, and no trainee should be recommended for qualified teacher status until they have met those standards. Teachers’ performance is then judged against these standards throughout their career.

The Teachers’ Standards 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 how to overcome them. Of course, noble Lords will know that this Government have a strong drive to have more ITT in schools, and many more teachers are now coming through who have been trained in SCITTs, some of whom are at special schools particularly appropriate for training teachers in SEN.

Ofsted has an important role here as well. It 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.

With regard to further education, chapter 6 of the draft 0-25 code of practice sets out that colleges should ensure their curriculum staff are able to develop their skills and knowledge, and that colleges should have access to specialist skills and support when required to help students with SEN to progress. As autonomous bodies, FE colleges are responsible for ensuring that their staff are properly equipped. To support the development of the FE workforce, we are investing £1 million for the existing workforce to undertake the specialist diploma in teaching disabled learners. We are also providing initial teacher-training bursaries of up to £9,000 to help to attract high-calibre graduates to specialise in teaching students with SEN in FE.

Schools and other institutions have very clear duties to ensure that their staff are equipped to support children and young people with SEN. I do not think that it is necessary to introduce a skills audit in addition to these very clear requirements. 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 to assess their current knowledge of dyslexia and access further training. It will also be providing a toolkit to help teachers to identify and respond to literacy difficulties and dyslexia.

I hope that I have made clear that the Government recognise the importance of good teaching for pupils with SEN and that, through the changes in the code and the requirements of the Teachers’ Standards, there are clear requirements on all schools.

I turn to Amendment 46A. When Clause 63 was debated in Committee, I made clear that the appropriate regulations—the Special Educational Needs (SEN co-ordinators) Regulations—continue to require that the SENCO is a qualified teacher, and that SENCOs new to the role must study for the National Award in SEN Co-ordination. This should ensure that SENCOs have a thorough grounding in the knowledge and skills that are required for the role.

My noble friend Lord Addington’s amendment would go further than that in requiring that these skills are kept up to date and that schools ensure that their SENCO has adequate support and opportunities for training. I entirely agree with that aim but do not believe that the amendment is the best way to achieve it. Schools could fulfil the proposed requirement by providing the bare minimum opportunity for further training, and I fear that it would fall short of my noble friend’s intention.

Instead, I propose revising the section of the SEN code of practice that deals with the SENCO role. We will set out that schools “should ensure that the SENCO has sufficient time, training and resources” to carry out their role. This will place an ongoing expectation on schools to ensure that the SENCO is sufficiently supported and trained. As qualified teachers, SENCOs are also judged against the Teachers’ Standards. The code of practice already makes clear that the quality of teaching for pupils with SEN should be,

“a core part of the school’s performance management arrangements and its approach to professional development for all teaching and support staff”.

I hope my noble friend would agree that, taken together, this should deliver what he is seeking to achieve.

On the point made by the noble Baroness, Lady Howarth, about governance, since I came into office governance has been at the top of my list of priorities. As things stand, it is true that governing bodies should have a governor with specialist responsibility for SEN.

I hope that I have reassured the House and my noble friend that the Government are committed to ensuring that our teaching workforce is well trained in identifying and supporting children and young people with SEN. Continual professional development and training is essential for the whole workforce but it is particularly important for the role of the SENCO and, as I have said, I am committed to ensuring that the code of practice goes further than before to adequately reflect that. On that basis, I urge my noble friend to withdraw his amendment.

[Lord Addington]

My Lords, I thank my noble friend for that answer. I would, of course, have been happier if we had got a commitment, particularly to initial teacher training having a more comprehensive element, and, basically, if all the amendments had been accepted, and accepted a long time ago, and I did not have to raise the subject.

The Dyslexia-SpLD Trust wrote the amendments and, although it is working with the Government, it would still like slightly more from this. It is a long-established fact that if you know what you are dealing with, you stand a much better chance of getting it right. Although the teachers of today are undoubtedly better trained than those of yesterday, I still feel they could be better trained. Having said that, progress is progress. It is fairly late, and the Government are putting pressure on to go forward on this. I will withdraw the amendment, but I am sure that the House will be addressing this issue on numerous occasions in the future. Unfortunately, we cannot draw a line under this. I beg leave to withdraw the amendment.

Amendment 45A withdrawn.

Amendment 46 not moved.

Clause 63: SEN co-ordinators

Amendment 46A not moved.

Amendment 46B not moved.

Amendment 46C

Moved by

[Lord Addington]

46C: After Clause 63, insert the following new Clause—
“Apprenticeship support
Apprenticeship training providers must enable individuals undertaking an apprenticeship to access the full range of special education provisions to which they are entitled under this Act, the Equality Act 2010 and the Apprenticeship, Skills, Children and Learning Act 2009.”

[Lord Addington]

My Lords, we now come to an issue that has taken up a great deal of my time and this House’s time over the past three or four years. We have found that, through a variety of unfortunate events, people with dyslexia taking apprenticeships have been unable to obtain the final qualification because they could not take the necessary English or maths test. It is an absurd situation about which I have bent the ear of numerous Ministers over the past few years. Indeed, numerous Ministers have given me a series of responses, such as “This should not be happening. Oh! It is happening”, and then they have read out briefs which have stated that.

After Committee stage, I was rather surprised when I got a letter from the Minister which stated quite clearly that this situation is not lawful, effectively. I do not know whether that is exactly the correct term, but under the Equality Act, this should not have happened, and the Apprenticeships, Skills, Children and Learning Act did not preclude it taking place. We have come to a situation that should not have happened. My noble friend rather took the wind out of my sails for a few minutes when I received his letter because I just did not expect that something that definitive would arrive. A series of emotions went through me and I asked myself what I had I been wasting my time on and why.

This amendment is to ask my noble friend what should happen now. If it does not happen, what will be done about it? We have a situation in which practice has been established. Providers of apprenticeships do not have to get people with dyslexia through this. They do not have to make the adaptation provided here. The examining bodies and colleges have not been doing it, so if we are changing this now, which I believe will be the case—I hope it will be the case— I would like to know exactly what will happen. Indeed, if these people do not do this, what will happen to them? What is the legal framework? What is the duty involved?

Having established this, the need for Amendment 46D became apparent to me when I had the first meeting with officials on this. Indeed, when I asked about an appeal, the expression “no good deed goes unpunished” must have been running through their heads because there is now another issue. There are people who have been failed because people have been saying it is a legal requirement. What happens to them? Potentially, there is a legal challenge here. If we do not do something about it, there will be a legal challenge about loss of earnings or lower earnings for life because of not being qualified. Are we going to employ the plumber, the carpenter or so on who has the apprenticeship or the one who does not? If you do not get some form of redress here, somebody has let you down. There is a challenge. I suggest that a reassessment or an appeal of some sort is the most sensible thing to do. I look forward to what my noble friend will say about this.

On the process and criteria, there will be some cases that will be easy to assess. If you have completed the course but failed the English test and you are dyslexic, it is not that difficult. There are problems because we have changed the name of the English test and have slightly changed its nature—it has gone from “key skills” to “functional skills”—but it should not be beyond the wit of man. It has been going on for less than four years and there are records. We should be able to follow them up. I owe my noble friend a great deal of thanks for making sure of and correcting the legal situation—unless there has been another bolt from the blue over this—and I hope he will be able to give me some assurance that this will take place, because it should. I beg to move.

19:45

[Baroness Jones of Whitchurch]

My Lords, we are very grateful to the noble Lord, Lord Addington, for raising these concerns about the access of apprenticeship trainees to SEN support. As he pointed out, they already have some entitlements that were laid down in previous legislation, but the rights and provisions are not being supplied consistently. This is leading to otherwise excellent trainees failing particular modules of their training because their learning support needs have not been properly identified. It seems that once again apprenticeships are in danger of being the poor relation in the education hierarchy.

There are two ways that these inconsistencies can be addressed. First, all employers and trainers need to be aware of their responsibilities to make proper provision. This echoes the point the noble Lord is raising here. Secondly, apprentices themselves should have greater awareness of their rights, how to access the help they need and how to appeal if they are unhappy with the provision made.

These amendments go some way to addressing these issues. Amendment 46D deals more specifically with the testing regime. We would expect apprentices with SEN to have their needs identified at an early stage rather than waiting until they have failed a component. However, we would also expect provision to be made for an appeal if the failure is felt to be caused by inadequate support for their special educational needs. I very much endorse the arguments the noble Lord made and hope that the Minister will be able to provide reassurance today that these issues are being addressed so that no young apprentice will suffer because of inadequate support for their learning and skills needs.

[Lord Nash]

My Lords, progress on this issue has been far too slow, and I am very concerned that some individuals have been denied the reasonable adjustments that could have helped them to demonstrate what they know or can do, and subsequently to achieve an apprenticeship.

I thank my noble friend Lord Addington for bringing this very important issue to the attention of the House. He has been an assiduous campaigner for children and young people with dyslexia, and I pay tribute to the way in which he has presented his concerns in this House, particularly during Grand Committee debates. I pay tribute to his passion and persistence. Saying that I managed by my letter to take the wind out of his sails is high praise indeed. I want to take this opportunity to clarify the system allowing reasonable adjustments to qualifications and appeals, and I hope I will be able to reassure him that additional action will happen with an urgency that has been lacking.

As my noble friend knows from our discussions, I share his desire to see reasonable adjustments offered to all young people on an apprenticeship who need them, so that they have a reasonable opportunity to achieve the required qualifications in English and maths. I want to take this opportunity to clarify the clear duty in Part 6 of the Equality Act 2010 on learning providers and awarding organisations to make reasonable adjustments so that disabled people are, wherever possible, not put at a disadvantage compared to other learners. I share my noble friend’s concern that this duty should be applied in every relevant case.

Where a body breaches this duty, individuals may bring a challenge in a county court. The county court can grant any remedy which the High Court could grant in proceedings in tort or in a claim for judicial review. Available sanctions include damages, injunctions and a declaration. In addition, repeated breaches may lead us to challenge the body’s ability to deliver training or to award qualifications. Following the important points that my noble friend Lord Addington made in Grand Committee, I am pleased to be able to place on record that there is nothing in the Apprenticeships, Skills, Children and Learning Act, or in the associated specification for apprenticeship standards in England, that prevents the use of assistive technology for functional skills qualifications.

I am aware that Ofqual has for some time been working with awarding organisations and the British Dyslexia Association to continue to widen opportunities to use assistive technology as a reasonable adjustment. The Access Consultation Forum meets three to four times a year. The next meeting is on 30 January, and this will be on the agenda. Ofqual assures me that it takes the issue of equality very seriously. I understand that the BDA and my noble friend have examples of individuals who have been disadvantaged, and I invite them to provide details of the specific cases to Ofqual, via officials if that would be helpful. Ofqual has committed to investigate the circumstances of all these cases. In addition, we will include new text in the skills funding statement to remind education and training providers of their duty to support young people with learning difficulties or disabilities and of their responsibility for providing reasonable adjustments, including the use of assistive technology where appropriate.

I also agree with my noble friend that we can do more to provide straightforward advice and information on the support available to individuals with learning difficulties or disabilities, so that they understand their rights and can challenge appropriately if they are not properly supported. Noble Lords will be aware that I wrote to the noble Lord, Lord Addington—as he mentioned—on 2 December and committed in that letter to some additional steps to raise awareness of the support on offer.

I know that my noble friend is also concerned that young people should make a good transition out of school and into their next stage of learning. The system that we are replacing has not always served young people well in this respect. The nought to 25 system created by the Bill will ensure a much greater continuity of support between different phases and types of learning. Local authorities will be under a duty to identify all young people aged up to 25 in their area who have, or may have, special educational needs, and to consider whether local provision is sufficient to meet their needs. They may publish a local offer setting out the full range of post-16 education and training provision, including apprenticeships. Young people who need the most support will receive an EHC plan regardless of whether they stay at school, go to FE college or to work-based provision in the private sector, unlike the current disjointed system.

The new nought to 25 code of practice is clear about how schools and colleges should focus much more strongly on helping children and young people prepare for their transition into post-16 education and on to adult life. Chapter 6 states:

“Schools should help pupils to start planning for their future adult life as early as possible, and by Year 9 at the latest”.

This should of course include,

“the range of post-16 options which may be available”.

The draft code also explains the importance of a school sharing information about a pupil’s special educational needs with the college before the young person starts. As a result of my noble friend’s recent appeal, we are working with the Dyslexia Trust to produce clear information explaining the support available to apprentices with learning difficulties or disabilities. This will be made available through the National Apprenticeship Service website and will also include information about assistive technology and reasonable adjustments.

In response to the concerns raised by the noble Lord, Lord Addington, I also asked officials to look into the process of complaints, retakes and appeals to ensure that it is as fair and transparent as possible. Although a process is in place and is consistent with other national qualifications such as GCSEs, I believe that more could be done by centres and training providers to publicise it. My officials checked several apprenticeship provider websites, and, although there were examples of good practice, many do not provide details of their procedures. This contrasts with information on school or university websites, where it is generally very clear how to get advice about support or exam results, and about how to complain. I will ask officials as a priority to find a way to ensure that centres and provider websites publish good information about complaints and appeals on their websites in future. I hope that my noble friend will recognise that, taken together, these measures represent improvements for those undertaking apprenticeships. I hope also that the House will acknowledge the outstanding personal commitment that the noble Lord, Lord Addington, had demonstrated in bringing this about.

I move now to historic appeals for those who failed key skills tests because of failures to make reasonable adjustments. As noble Lords may know, key skills qualifications have been replaced by functional skills qualifications. The last possible date for certification was in 2013. Key skills were phased out very gradually, allowing plenty of opportunities for learners to resit them. Nevertheless, as my noble friend has so eloquently set out, we cannot ignore cases where there is evidence that legal duties have not been adhered to. I have therefore asked officials to work with the British Dyslexia Association and Ofqual to gather evidence and seek a solution to any issues identified, whether current or historic. Officials will be able to advise on specific cases or systemic issues.

I will now make a further specific commitment. Where an apprentice with learning difficulties or disabilities has previously completed all other requirements of a particular apprenticeship, but was not able to pass a key skills qualification, for example because reasonable adjustments were not made, they will be able to sit the alternative functional skills test. They will be entitled to the appropriate support and reasonable adjustments. If this test is passed at the appropriate level, the Government will enable the individual to receive an apprenticeship certificate, even if a year or two has elapsed.

I hope that this will reassure noble Lords that the issue is of great concern to the Government and that we are taking substantial and appropriate action to address it. I am grateful to my noble friend Lord Addington for his work, as I have already said, and I hope that with these assurances he will feel able to withdraw his amendment.

[Lord Addington]

My Lords, this is one of the speeches I thought I might never get to make. I thank the noble Lord, Lord Nash. Another Minister might have done the job, but it was he who did it. Other Ministers have not addressed this subject. He has gone in and probably made the lives of a substantial number of people considerably better by his actions. I thank him profoundly on their behalf and on my own.

However, I hope the whole House will pay attention to the fact that we took this long to get here, and that officials provided answers for the noble Lord’s colleagues at the Dispatch Box that did not concur with what he has said. This is something about which this House—and indeed the Government—should be worried. The noble Lord took a bold step and corrected something. Once again I thank him. Unfortunately he should not—as I should not—have had to battle away for this long. I thank him for his efforts and for what has happened here. He has made people’s lives better with one blow. That usually makes the day feel a little better in the end. I beg leave to withdraw the amendment.

Amendment 46C withdrawn.

Amendment 46D not moved.

Clause 64: Informing parents and young people

Amendment 47 not moved.

Clause 65: SEN information report

Amendments 47A to 47F

Moved by

[Lord Nash]

47A: After Clause 65, insert the following new Clause—
“Application of Part to detained persons
(1) Subject to this section and sections (Assessment of post-detention education, health and care needs of detained persons) to (Supply of goods and services: detained persons), nothing in or made under this Part applies to, or in relation to, a child or young person detained in pursuance of—
(a) an order made by a court, or(b) an order of recall made by the Secretary of State.(2) Subsection (1) does not apply to—
(a) section 28;(b) section 31;(c) section 69;(d) section 73;(e) any amendment made by this Part of a provision which applies to, or in relation to, a child or young person detained in pursuance of—(i) an order made by a court, or(ii) an order of recall made by the Secretary of State.(3) Regulations may apply any provision of this Part, with or without modifications, to or in relation to a child or young person detained in pursuance of—
(a) an order made by a court, or(b) an order of recall made by the Secretary of State.(4) The Secretary of State must consult the Welsh Ministers before making regulations under subsection (3) which will apply any provision of this Part to, or in relation to, a child or young person who is detained in Wales.
(5) For the purposes of this Part—
“appropriate person”, in relation to a detained person, means—
(a) where the detained person is a child, the detained person’s parent, or(b) where the detained person is a young person, the detained person;“detained person” means a child or young person who is—
(a) 18 or under,(b) subject to a detention order (within the meaning of section 562(1A)(a) of EA 1996), and(c) detained in relevant youth accommodation,and in provisions applying on a person’s release, includes a person who, immediately before release, was a detained person; “detained person’s EHC needs assessment” means an assessment of what the education, health care and social care needs of a detained person will be on his or her release from detention;
“relevant youth accommodation” has the same meaning as in section 562(1A)(b) of EA 1996, save that it does not include relevant youth accommodation which is not in England.
(6) For the purposes of this Part—
(a) “beginning of the detention” has the same meaning as in Chapter 5A of Part 10 of EA 1996 (persons detained in youth accommodation), and(b) “the home authority” has the same meaning as in that Chapter, subject to regulations under subsection (7) (and regulations under section 562J(4) of EA 1996 made by the Secretary of State may also make provision in relation to the definition of “the home authority” for the purposes of this Part).(7) For the purposes of this Part, regulations may provide for paragraph (a) of the definition of “the home authority” in section 562J(1) of EA 1996 (the home authority of a looked after child) to apply with modifications in relation to such provisions of this Part as may be specified in the regulations.”

47B: After Clause 65, insert the following new Clause—
“Assessment of post-detention education, health and care needs of detained persons
(1) This section applies in relation to a detained person for whom—
(a) the home authority is a local authority in England, and(b) no EHC plan is being kept by a local authority.(2) A request to the home authority to secure a detained person’s EHC needs assessment for the detained person may be made by—
(a) the appropriate person, or(b) the person in charge of the relevant youth accommodation where the detained person is detained.(3) Where this subsection applies, the home authority must determine whether it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention.
(4) Subsection (3) applies where—
(a) a request is made under subsection (2),(b) the detained person has been brought to the home authority’s attention by any person as someone who has or may have special educational needs, or(c) the detained person has otherwise come to the home authority’s attention as someone who has or may have special educational needs.(5) In making a determination under subsection (3), the home authority must consult—
(a) the appropriate person, and(b) the person in charge of the relevant youth accommodation where the detained person is detained.(6) Where the home authority determines that it will not be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention, it must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained—
(a) of the reasons for that determination, and(b) that accordingly it has decided not to secure a detained person’s EHC needs assessment for the detained person.(7) Subsection (8) applies where—
(a) the detained person has not been assessed under this section or section 36 during the previous six months, and(b) the home authority determines that it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention. (8) The home authority must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained—
(a) that it is considering securing a detained person’s EHC needs assessment for the detained person, and(b) that the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained each have the right to—(i) express views to the authority (orally or in writing), and(ii) submit evidence to the authority.(9) The home authority must secure a detained person’s EHC needs assessment if, after having regard to any views expressed and evidence submitted under subsection (8), the authority is of the opinion that—
(a) the detained person has or may have special educational needs, and(b) it may be necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention.(10) After a detained person’s EHC needs assessment has been carried out, the local authority must notify the appropriate person and the person in charge of the relevant youth accommodation where the detained person is detained of—
(a) the outcome of the assessment,(b) whether it proposes to secure that an EHC plan is prepared for the detained person, and(c) the reasons for that decision.(11) Regulations may make provision about detained persons’ EHC needs assessments, in particular—
(a) about requests under subsection (2);(b) imposing time limits in relation to consultation under subsection (5);(c) about giving notice;(d) about expressing views and submitting evidence under subsection (8);(e) about how detained persons’ EHC needs assessments are to be conducted;(f) about advice to be obtained in connection with a detained person’s EHC needs assessment;(g) about combining a detained person’s EHC needs assessment with other assessments;(h) about the use for the purposes of a detained person’s EHC needs assessment of information obtained as a result of other assessments;(i) about the use of information obtained as a result of a detained person’s EHC needs assessment, including the use of that information for the purposes of other assessments;(j) about the provision of information, advice and support in connection with a detained person’s EHC needs assessment.”

47C: After Clause 65, insert the following new Clause—
“Securing EHC plans for certain detained persons
(1) Where, in the light of a detained person’s EHC needs assessment it is necessary for special education provision to be made for the detained person in accordance with an EHC plan on release from detention, the home authority must secure that an EHC plan is prepared for him or her.
(2) Sections 37(2) to (6) and 38 to 40 apply in relation to an EHC plan secured under subsection (1) as they apply to an EHC plan secured under section 37(1), with the following modifications—
(a) references to “the child or young person” are to be read as references to the detained person,(b) references to the local authority are to be read as references to the home authority, and (c) references to the child’s parent or the young person are to be read as references to the appropriate person.(3) Section 33(2) to (7) apply where a home authority is securing the preparation of an EHC plan under this section as they apply where a local authority is securing a plan under section 37, with the following modifications—
(a) references to “the child or young person” are to be read as references to the detained person,(b) references to the local authority are to be read as references to the home authority,(c) references to the child’s parent or the young person are to be read as references to the appropriate person, and(d) the reference in subsection (2) to section 39(5) and 40(2) is to be read as a reference to those provisions as applied by subsection (2) of this section.”

47D: After Clause 65, insert the following new Clause—
“EHC plans for certain detained persons: appeals and mediation
(1) An appropriate person in relation to a detained person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 52 (as applied by this section).
(2) The matters are—
(a) a decision of the home authority not to secure a detained person’s EHC needs assessment for the detained person;(b) a decision of the home authority, following a detained person’s EHC needs assessment, that it is not necessary for special educational provision to be made for the detained person in accordance with an EHC plan on release from detention;(c) where an EHC plan is secured for the detained person—(i) the school or other institution named in the plan, or the type of school or other institution named in the plan;(ii) if no school or other institution is named in the plan, that fact.(3) The appropriate person may appeal to the First-tier Tribunal under subsection (2)(c) only when an EHC plan is first finalised for the detained person in accordance with section (Securing EHC plans for certain detained persons).
(4) Regulations may make provision about appeals to the First-tier Tribunal in respect of EHC plans secured under section (Securing EHC plans for certain detained persons), in particular about—
(a) making and determining appeals;(b) the powers of the First-tier Tribunal on determining an appeal;(c) unopposed appeals.(5) A person commits an offence if without reasonable excuse that person fails to comply with any requirement—
(a) in respect of the discovery or inspection of documents, or(b) to attend to give evidence and produce documents,where that requirement is imposed by Tribunal Procedure Rules in relation to an appeal under this section.(6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(7) Section 52(2) to (9) apply where an appropriate person intends to appeal to the First-tier Tribunal under this section as they apply where a child’s parent or young person intends to appeal under section 51, with the following modifications—
(a) references to the child’s parent or young person are to be read as references to the appropriate person, and(b) references to the local authority are to be read as references to the home authority.(8) Regulations under subsection (7) of section 52 may make provision for the purposes of subsection (7) of this section, and accordingly in subsection (7)(f) of section 52—
(a) the reference to a child’s parent is to be read as a reference to the parent of a detained person who is a child, and(b) the reference to the child is to be read as a reference to a detained person who is a child.”

47E: After Clause 65, insert the following new Clause—
“Duty to keep EHC plans for detained persons
(1) This section applies in relation to a detained person—
(a) for whom a local authority in England was maintaining an EHC plan immediately before the beginning of his or her detention, or(b) for whom the home authority has secured the preparation of an EHC plan under section (Securing EHC plans for certain detained persons).(2) The home authority must keep the EHC plan while the person is detained in relevant youth accommodation.
(3) Regulations may make provision about the keeping of EHC plans under subsection (2), and the disclosure of such plans.
(4) The home authority must use its best endeavours to arrange appropriate special educational provision for the detained person while he or she is detained in relevant youth accommodation.
(5) If the EHC plan specifies health care provision, the detained person’s health services commissioner must use its best endeavours to arrange appropriate health care provision for the detained person while he or she is detained in relevant youth accommodation.
(6) For the purposes of subsection (4), appropriate special educational provision is—
(a) the special educational provision specified in the EHC plan,(b) educational provision corresponding as closely as possible to the special educational provision specified in the plan, or(c) if it appears to the home authority that the special educational provision specified in the plan is no longer appropriate for the person, such special educational provision as reasonably appears to the home authority to be appropriate.(7) For the purposes of subsection (5), appropriate health care provision is—
(a) the health care provision specified in the EHC plan,(b) health care provision corresponding as closely as possible to the health care provision specified in the plan, or(c) if it appears to the detained person’s health services commissioner that the health care provision specified in the plan is no longer appropriate for the person, such health care provision as reasonably appears to the detained person’s health services commissioner to be appropriate.(8) In this section, “detained person’s health services commissioner”, in relation to a detained person, means the body that is under a duty under the National Health Service Act 2006 to arrange for the provision of services or facilities in respect of the detained person during his or her detention.”

47F: After Clause 65, insert the following new Clause—
“Supply of goods and services: detained persons
(1) A local authority in England may supply goods and services to any authority or other person making special educational provision for a detained person, but only for the purpose set out in subsection (2).
(2) The purpose is that of assisting the local authority in the performance of a duty under section (Duty to keep EHC plans for detained persons).
(3) The goods and services may be supplied on the terms and conditions that the authority thinks fit, including terms as to payment.”

Amendments 47A to 47F agreed.

Clause 67: Code of practice

Amendment 48 not moved.

Amendment 48ZA

Moved by

[Baroness Wilkins]

48ZA: After Clause 68, insert the following new Clause—
“Inspection and review of local authority special educational needs provision
Services included in the local offer that are delivered or commissioned by the local authority for the provision of specialist education support for children with special educational needs under this Act shall be subject to inspection by an appointed regulator and the findings shall be published.”

[Baroness Wilkins]

My Lords, this amendment is in my name and that of the noble Baroness, Lady Howe of Idlicote, and the noble Lord, Lord Low of Dalston. It would require an independent regulator to be appointed to scrutinise the provision of local authority services for children with SEN and their families. It is a further attempt to address the widespread concern about the lack of accountability in this Bill. As my noble friend Lady Morris of Yardley said in Grand Committee, the whole Bill could fail if parents do not quickly have confidence in the offer. There must be a clear message to parents that there will be a voice speaking on their behalf to make sure that the offer is of good quality.

20:00

In that same debate, several noble Lords echoed the point of the noble Lord, Lord Low, that, in the introduction of new assessed systems such as this, it would be rash not to build any element of accountability or quality control into the process. This is also a key concern for many in the sector, including the Special Educational Consortium, the National Deaf Children’s Society, Sense, RNIB and the National Sensory Impairment Partnership. In particular, there is a real lack of scrutiny of local authorities’ specialist SEN services. They remain the Cinderella service, and the missing link in the SEN accountability framework within Ofsted. This is despite recognition from the department and Ofsted that such services are vital. If these services are as important as the department says they are, they need to be properly scrutinised to ensure that they are effectively raising outcomes.

My amendment would therefore fill this gap in the SEN accountability framework. Action cannot come soon enough. We know that too many children with SEN are underachieving. For example, government figures show that just 37% of deaf children achieved five good GCSEs last year. Given that deafness is not a learning disability, this is a particularly shocking statistic.

In her response to the debate in Grand Committee, the Minister stated that her department had,

“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.]

I am grateful to the Minister for spelling out that review in more detail in the debate earlier today. However, that report will not be published before next spring, long after the Bill has completed its passage. Moreover, I am concerned that, following the debate in the Commons on deaf children on 17 October, the Minister, Edward Timpson, has already limited the scope of this review by Ofsted. He confirmed by letter to Sir Malcolm Bruce that his department had no plans to introduce inspections of local authority SEN services, as it would impose significant new burdens. It therefore looks highly unlikely that this promised review will be carried out with an open mind.

I will examine some of the arguments which the department has given for not inspecting local authorities’ SEN services. The department has said that it does not believe that Ofsted inspection of local authority SEN provision is needed, because it is already indirectly covered by their inspection of mainstream schools. However, this ignores the crucial role that many services play in supporting families with pre-school children. For example, the British Association of Teachers of the Deaf supports parents of deaf children in advising them on their children’s language and communication development. Without this support, far more deaf children would be starting primary school without age-appropriate language skills. We know how vital early communication is. More than anything else, we should be paying far more attention to the quality of these services.

Secondly, this argument presupposes that Ofsted inspections already pay close attention to the quality of local authority SEN support to schools. I am sceptical. Particularly in the case of low-incidence needs, such as sensory impairment, where there may be only one child with that condition in that school, does it really seem likely that an Ofsted inspector will have the time to closely scrutinise the quality of that support?

I understand that Ofsted’s recent annual report made no reference to the quality of local authority SEN provision. I also understand that, of the nine Ofsted regional reports, only one made any reference at all to SEN. The department has also suggested that inspection of local authority SEN services might send a signal to schools that they are no longer responsible for SEN. In that case, by the same rationale, Ofsted should immediately cease their inspections of local authorities’ school improvement services.

The Minister has also argued that increased transparency will support greater accountability, and that the Children and Families Bill supports this. Of course, increased transparency is welcome, but I remain concerned that the burden of keeping local authorities in check lies far too heavily with parents. The proposed requirement that local authorities be required to respond to comments left on the local offer by parents is not a substitute for real accountability. If it were, we could do away with Ofsted inspection of schools altogether. Why not just allow parents to leave comments on a website about their school? We must remember that many parents are busy being parents. Parents do not always know what they do not know. They do not have the time to research and analyse how good their local authority services are and many parents do not wish to rock the boat. The support that a child receives should and must be determined by what they need, not by how pushy or confident their parents are.

The failure to inspect specialist support services for children with SEN sends a signal that their education matters less. That is not acceptable. A failure to act also leaves us stuck with a weak accountability framework that does little to address the poorer outcomes achieved by children with SEN, something that will cost us greatly in future years. The proposal that Ofsted simply studies this issue and reports back next spring is too weak and vague. Moreover, based on what the department has told Members in the other place, it will not deliver what my amendment would: much stronger accountability and scrutiny of local authority SEN support that is vital to children with SEN and their families. I hope that the Minister will reconsider and accept the amendment. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I am pleased to support the amendment of the noble Baroness, Lady Wilkins. The Bill is in my view somewhat weak in terms of accountability. This is surprising, given how much emphasis the Government put on strengthening accountability in other areas. Very recently, for example, in their response to the consultation on secondary school accountability, the Department for Education noted approvingly that:

“OECD evidence shows that a robust accountability framework is essential to improving pupils’ achievement”.

In the Government’s White Paper Open Public Services, it was stated that increased choice must be accompanied by a framework that ensures,

“providers meet basic quality requirements enforced by … inspectors”.

The White Paper went on to say that the Government would,

“ensure that providers of individual services who receive public money … are licensed or registered by the appropriate regulator”.

I am also rather concerned that local education authority SEN services are subject to so little scrutiny given the amount of government expenditure in this area. I understand that over £5,000 million is allocated to funding for children with high needs. Surely, there must be greater scrutiny of whether funding for local authority SEN provision is delivering value for money.

Separately, it can be argued that there is a particular case for inspections of services for children with low-incidence needs, such as sensory impairments. Local authorities and mainstream schools and teachers are far less likely to be familiar with the specific needs of children with sensory impairments. This lack of familiarity and expertise makes the role of local authority SEN provision much more important. The quality of this support is crucial, but apparently no one is checking the quality of this support. This is not really acceptable.

We should note, too, that this proposal has the support of professional bodies, including the National Sensory Impairment Partnership. Heads of services for children with sensory impairment have indicated that they would welcome greater scrutiny, because it allows them to demonstrate and emphasise the importance of their role.

I share the concerns raised by the noble Baroness, Lady Wilkins, that the commitment made in Committee that Ofsted be asked to carry out a review is insufficient, particularly if Ministers have already, apparently, ruled out inspection of local authority SEN provision. We have already had a one-off thematic review of support for deaf children, with the findings published in the Ofsted report, Communication is the Key. It looked at provision in three local authorities; it did not tell us much about the other 149 local authorities and, even in those three local authorities identified as having best practice, weaknesses were identified in their quality assurance and self-evaluation. For that reason, there is clearly real concern about what value or impact another broad, one-off thematic review will add. Instead, surely what is needed is the introduction of a robust inspection framework for all local authority SEN services.

I hope that the Minister, having listened to all this, has been persuaded by strong arguments in favour of the proposal.

[Lord Low of Dalston]

My Lords, I, too, give my full support to the amendment moved by the noble Baroness, Lady Wilkins. I shall make three points in support. The amendment is inspired by Sense, the RNIB and the National Deaf Children’s Society. As vice-president of the RNIB, I declare my interest in that connection.

Nowadays, the majority of school-age children with sensory impairments attend mainstream provision and often rely on support from specialist visiting teachers and services. Whether the support comes from outside or inside the school, the development of mainstream provision for children with sensory impairment is of sufficiently recent origin for it to be the case that many schools in which children with sensory disabilities and impairments are being educated are still unfamiliar with the methods of educating children who are blind, deaf, or deafblind, and with the special skills that they need, the communication methods that they use, and how to inculcate those skills. It is vitally important that there should be a system of inspection to assure us that services are of an adequate quality. At an early stage of this transition to mainstream, services are not yet of the quality that we want to see; it is in the nature of the case that you do not always get services of the quality that you want just at the beginning of a new development. But I want to argue that the existence of a system of inspection and accountability is absolutely vital to raising standards and avoiding bad practice just by default. The lack of scrutiny afforded to these services places these children at risk of poor provision, particularly as mainstream teachers and schools are still unlikely to be familiar with the specific needs of children with sensory impairments.

The second point that I would like to make is that, in other areas, the department has already recognised the importance of strengthened accountability. In its response to the responses received to the consultation on secondary school accountability, the department stated:

“The most effective education systems around the world are those that have high levels of autonomy along with clear and robust accountability”.

That is the kind of point that we were trying to make in relation to the local offer in the first debate this afternoon. We want there to be local autonomy, but we want also to be satisfied that that is not developing as a postcode lottery and that too many services are not falling below the mark. We need a system of clear and robust accountability alongside the notion of local autonomy.

20:15

The OECD has produced evidence that shows that,

“a robust accountability framework is essential to improving pupils’ achievement”.

And this is my third point—that Ofsted has identified that local authorities are very weak on evaluation of SEN provision. A 2012 Ofsted report on effective practices and services for deaf children found that 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”.

The OECD evidence, the department’s own response to the consultation responses that it received and the Ofsted report that I have just quoted are more than enough to substantiate our argument that a vigorous and thoroughgoing system of inspection is absolutely essential to the development of a system of provision for children with SEN in which we can have trust and confidence.

[Lord Ramsbotham]

My Lords, I warmly support the intent behind the amendment in the names of my noble friends Lady Wilkins, Lady Howe and Lord Low of Dalston. However, as a former chief inspector, I have to admit that I am a little concerned about the confusion between inspection and regulation that is implied within it. Three separate functions are involved in oversight: audit, regulation and inspection. They are all different and are carried out in a different way. An audit can be a largely internal activity. Regulation must involve somebody directing that something has to happen. Inspection, if it is to mean anything, should be both independent and objective and therefore able to consider all the nuances of what is to be inspected. I note with interest that the current lack of accountability, which was described as weak accountability by my noble friend Lady Howe, has already been mentioned many times during the course of this debate.

This amendment is really a plea to the Government to think very carefully about how they are going to ensure oversight of an essential local authority provision, because currently there are no inspectors capable of carrying out that function. I refer the Minister to a precedent which might be followed—namely, the inspections of the safeguarding of children which were carried out by the old Commission for Social Care Inspection, which was abolished by the previous Government. It consisted of inspectors from Ofsted, the prisons inspectorate, the Department for Education and the Audit Commission, because it had a responsibility to look at local government and, of course, healthcare. The reports that were produced on safeguarding children are models that could be followed in this case as they covered many aspects which Ofsted does not have the skill to cover given that it is essentially concerned with education and a lot of the relevant provision concerns either healthcare or social care. Ofsted is not responsible for healthcare and I do not believe that it is very good at social care either.

The other thing that has to be remembered is that when we are talking about special educational needs, we are talking not just about the under-18s who come under the school regime but about the age range of nought to 25, as was mentioned earlier today in connection with detention. Therefore, we have to consider the inspection of local government provision for people other than those at school. The review that has been announced for next spring, carried out by Ofsted, should be stopped as I do not think that it is adequate. What the Government should do is consider very carefully a much wider examination of who is needed to conduct the oversight of all the activities that have been mentioned at various stages of the Bill. Unless they do that, not just the accountability but the oversight of something as important as this, on which we have made so much progress thanks to the way that the Minister has handled the Bill, is in jeopardy of being lost. That would be a tragedy.

[Baroness Sharp of Guildford]

My Lords, I have some sympathy with the amendment. Earlier today we rejected the notion of minimum standards being laid down for local authorities but we made it very clear in that debate that this was a matter for local authorities and that we wanted to see them use their discretion and compete with each other to provide high-quality services for those with special educational needs. Equally, in discussing the local offer, we were concerned not just with those classed as having special educational needs but with the wider community of children who have special educational needs. That is a very large number of children, as has been mentioned already. Some 1.4 million children fall into that category and are served by their schools but depend very much at the moment on local authority services to supplement what the school SENCOs and the school staff can provide.

There is enormous variation between what local authorities do in this regard. Picking up the point made by the noble Lord, Lord Ramsbotham, I believe I am right in saying that Ofsted currently inspects children’s services within local authorities. In so far as it is inspecting children’s services, including protection services, it would not be so difficult for it to take account also of the special educational needs services provided by local authorities. It seems to me that this is not an impossible situation and that the point that the noble Baronesses, Lady Wilkins and Lady Howe, made on accountability, and the need for it, is very important.

[Lord Nash]

My Lords, I am grateful to the noble Baroness, Lady Wilkins, for tabling the amendment. Earlier today we discussed the government amendment to Clause 30(6) to strengthen transparency and accountability for the local offer. Local authorities must publish comments from disabled children and young people, those with SEN and the parents of such children, about the local offer, including the quality of the provision available and about any provision that is not available in their area. We make clear in the draft SEN code that when local authorities publish their response to comments this includes the action local authorities propose to take. Amendment 33C makes this explicit in the Bill. Local authorities cannot simply publish their response to comments but then ignore them. They must say what action they intend to take. As with every other part of the development of the local offer, children, young people and parents will be involved in discussions with local authorities about the action they propose to take.

When we debated the local offer, I emphasised that we are not yet clear about whether inspection is necessarily the best way to encourage a good local offer. I hope that the confirmation that we have asked Ofsted to deliver a study to identify best practice in preparing for the SEN reforms, and consider particularly whether there is a need for an inspection framework to drive improvements, is reassuring. It has been asked to deliver the study this summer, not next spring. I hope, too, that the noble Baroness, Lady Wilkins, is reassured that the study will include local authority specialist services supporting children and young people with special educational needs and those who are disabled, and say how Ofsted intends to monitor those services. The study will focus on the extent to which local areas ensure that children and young people with SEN and those who are disabled are identified and their needs met. It will look for improved outcomes and the satisfaction of parents and young people. It will establish a baseline from which to evaluate progress in implementing the reforms; provide guidance to local authorities about the development of effective practice and advice about aspects requiring further development; and consider how, if required, effective accountability could take place.

The study will consider how local authorities identify and assess social care needs and ensure that those needs are met, look at how local authorities will work with clinical commissioning groups to identify and commission the range and sufficiency of specialist services required to support the needs of children with and without EHC plans, and evaluate the effectiveness of these services. The study will also consider arrangements for personal budgets, transition to EHC plans and how school and college inspection and other inspection activity could provide ongoing information about the effectiveness of the local area’s arrangements.

This is a comprehensive study. Should Ofsted recommend that an inspection framework is needed we would, of course, take that very seriously. If it does not make such a recommendation, we will consider what further action is necessary. I should make it clear that we have not ruled out inspection by Ofsted of local authority support services.

In terms of accountability, schools are ultimately responsible for the progress of all pupils where additional support is needed. Schools should use their best endeavours to ensure that those needs are met. The Ofsted inspection framework introduced in September 2012 places a clear emphasis on meeting the needs of disabled pupils and those with SEN. Inspectors must consider the quality of teaching and the progress made by these pupils. Where a school has a specialist resource base or integrated unit, these are covered as part of the inspection. Ofsted also inspects special schools, which provide support for sensory impaired children and others who may currently have a statement of SEN. This means that any deaf child in a mainstream or specialist school would have their education inspected as part of the Ofsted Section 5 framework. I want to stress that the SEN reforms will provide legal protections for families wanting to challenge councils through their involvement in determining local provisions. Not only do the SEN reforms in the Bill provide legal protections, they will also establish a better system for identifying need and commissioning services across education, health and social care to ensure that services provided match local needs as accurately as possible and so that families do not have to battle to get those services.

Of course, the success of the reforms will depend on changing culture and practice locally. We cannot just pass this Bill, walk away and hope that things happen. I agree entirely with the point made by the noble Lord, Lord Ramsbotham, about ensuring that local authorities perform. That is why my department is monitoring closely the readiness of local areas to implement these reforms in preparation for September 2014. There is already a package of support for implementation delivered and co-ordinated by our strategic delivery partners—the Council for Disabled Children and pathfinder champion lead via the pathfinder support team at Mott MacDonald. The Minister for Children and Families has written to all chief executives of local authorities and clinical commissioning groups about the reforms. We will be monitoring local authorities’ progress in implementing the reforms from September 2014. We will consider what further steps may be needed in the light of this information and the findings of the study being conducted by Ofsted into local authority practice in preparing for and taking forward these reforms. I will certainly ensure that we look at the prior art to which the noble Lord referred and that we take seriously the whole issue of ensuring that delivery happens on the ground.

I hope that I have been able to reassure noble Lords about the measures that we have taken to improve transparency and accountability for the local offer. I also hope that what I have said about the Ofsted study and the approach we will take to monitoring the implementation of the reforms in some way reassures the noble Baroness, Lady Wilkins, that we will consider the issue of inspection carefully once we have the findings from that study, and I urge her to withdraw her amendment.

20:29

[Baroness Wilkins]

I thank the Minister very much for that very full reply. I must admit that I need to take it in more thoroughly and shall read it. I am glad to hear that the department has not ruled out inspection of local SEN support services in the Ofsted review and that that will be heard this summer. However, that will be after the Bill has completed its course.

I thank all noble Lords who have taken part: the noble Baronesses, Lady Howe and Lady Sharp, and the noble Lords, Lord Low and Lord Ramsbotham. I am sure that noble Lords will want to reflect on what the Minister has said and perhaps follow up on the very interesting suggestion from the noble Lord, Lord Ramsbotham. However, for now, I beg leave to withdraw the amendment.

Amendment 48ZA withdrawn.

Amendments 48A and 49 not moved.

Clause 70: Part does not apply to detained children and young people

Amendment 50 not moved.

Schedule 3: Special educational needs: consequential amendments

Amendments 50ZA to 50ZC

Moved by

[Lord Nash]

50ZA: Schedule 3, page 157, line 34, leave out sub-paragraphs (2) to (4) and insert—
“( ) In subsection (1), after “local authority” insert “in Wales”.
( ) In the title, after “with” insert “statement of”.
55A In section 562D (appropriate special educational provision: arrangements between local authorities), in subsection (2) after “local authority” insert “in Wales”.”

50ZB: Schedule 3, page 157, line 40, leave out sub-paragraphs (2) to (8) and insert—
“( ) In subsection (1) after “local authority” insert “in Wales”.
( ) In subsection (2) after “home authority” insert “, where they are a local authority in Wales,”.
( ) In subsection (4) after “local authority” insert “in Wales”.
( ) In subsection (5) after “local authority” insert “in Wales”.
( ) In subsection (7)—
(a) in paragraph (a) after “home authority” insert “, where they are a local authority in Wales”, and(b) in paragraph (b) after “authority” insert “in Wales”.( ) In subsection (8)—
(a) after “home authority”, where it first occurs insert “, where they are a local authority in Wales”, and(b) in paragraph (a) after “local authority” insert “in Wales”.”

50ZC: Schedule 3, page 158, line 18, leave out sub-paragraphs (2) and (3) and insert—
“( ) In subsection (1)—
(a) after “person” insert “—(a) ”, and(b) after “apply” insert “, and(b) for whom the home authority are a local authority in Wales.”( ) In subsection (4), for “Subsections (5) and (6) apply” substitute “Subsection (6) applies”.
( ) Omit subsection (5).
( ) In subsection (6), omit paragraph (b) and the “and” preceding it.”

Amendments 50ZA to 50ZC agreed.

Amendment 50A

Moved by

[Lord Nash]

50A: Schedule 3, page 161, line 5, at end insert—
“Children Act 1989 (c. 41)(1) The Children Act 1989 is amended as follows.
(2) In section 23E (pathway plans), in subsection (1A)(a) after “Education Act 1996” insert “or Part 3 of the Children and Families Act 2013”.
(3) In Part 1 of Schedule 2 (provision of services to families) in paragraph 3 (assessment of children’s needs) after paragraph (b) insert—
“(ba) Part 3 of the Children and Families Act 2013;”.”

[Lord Nash]

My Lords, government Amendment 50A makes consequential amendments to Section 23E of, and Schedule 2 to, the Children Act 1989.

A pathway plan makes plans for a looked-after child leaving care and sets out the role of the local authority once the young person has left care. The pathway plan is about managing that transition. Section 23E of the Children Act 1989 allows the local authority to combine assessments in respect of pathway plans with other assessments, including an SEN assessment under Part IV of the Education Act 1996. This technical government amendment would ensure that Section 23E of, and paragraph 3(b) of Schedule 2 to, the Children Act would be able to include, for England, assessments under Part 3 of the Children and Families Bill. I beg to move.

Amendment 50A agreed.

Consideration on Report adjourned.