Children and Families Bill
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Baroness Young of Old Scone (Non-Afl)
My Lords, at this time of night I shall be brief and not repeat anything that has already been said. However, I wish to make effusive remarks about the Minister’s response to the case made by the Health Conditions in Schools Alliance and for bringing forward a government amendment to the Bill, for which we are grateful. I thank the Minister for ensuring that the indicative draft of the guidance was available before we discussed this element of the Bill.
I thank the noble Lord, Lord Kennedy, for proposing this very important amendment. He sought a response from the Minister on what happens if a school—schools now have a very clear responsibility to look after these children—fails to get an adequate input from the local health system in terms of support and making plans for individual children. From time to time staff at schools across the country say that they would like to provide a better response in this regard but are unable to do so because they do not get adequate training and support from the local health system. Therefore, this amendment is important as it would reinforce the existing duties under the Children Act—which, alas, are currently ignored—and make sure that a school is not put in the impossible position of having a statutory duty but no means of carrying it out if it is not given the necessary support.
School nurses are important but so are specialist nurses for various conditions because in many cases their specialist knowledge will be required to establish an adequate plan for each child. Therefore, this issue cannot be left simply to school nurses, quite apart from the workload issue that the noble Lord, Lord Kennedy, raised.
I know that this issue is of great concern to the trade unions. It was, indeed, their only stumbling block. I held the mistaken belief that the trade unions were not willing to take up this challenge on an ideological basis. However, their concerns were practical ones. They were very willing to see teachers give this support to children provided they were properly supported and trained to do so. Therefore, the question is: what does a school do if the NHS does not step up to the plate in providing training and support for it?
The indicative guidance rightly talks about the role of Ofsted in ensuring that schools meet this new duty. However, there needs to be further discussion between the department and Ofsted about the latter’s role and what it will be able to do in relation to this issue. The guidance says that inspectors are already briefed to consider the needs of pupils with chronic or long-term medical conditions and to report on how well their needs are being met. However, that was not quite the impression I got when I met the Chief Inspector of Schools a few weeks ago, so clarity is needed about what requirements will be laid on Ofsted, not perhaps in terms of this duty being fully inspected but at least the forthcoming guidance to inspectors should brief them on it. Perhaps at some stage an ad hoc report could be produced on how well the guidance is being implemented. I press the Minister to tell us what a school will do if it hits a brick wall with the NHS.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I am grateful to all noble Lords for their comments on Amendment 57C, tabled by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Howe, and to all those noble Lords who have brought these matters to our attention. We are in consultation on the guidance and we welcome all noble Lords’ comments on it and on all other matters. I hope that I can assure the noble Lord, Lord Kennedy, and other noble Lords that further primary legislation is not necessary.
Baroness Jones of Whitchurch (Lab)
My Lords, I did not want our relative silence on these Benches to be interpreted as meaning that we were not in full support of the noble Baroness’s amendment. She will know that we have consistently worked with and supported her on these issues. Because of the lateness of the hour, I do not intend reading the speech that I had prepared, but will simply say that we think that having a national anti-bullying strategy combined with the code of practice, in the way that is described in this amendment, is a sensible staged approach to dealing with this very sensitive and growing issue. We accept that head teachers and teachers must have some discretion, as I think the Minister said in Committee, but they also need help and support. This package is the right combination for that and I hope that the noble Lord is able to persuade us that the Government are taking this seriously going forward.
Lord Nash
My Lords, I am grateful to all noble Lords for their contributions to this debate and assure them that we take this matter very seriously. I thank in particular my noble friend Lady Brinton for bringing her experience and expertise to bear on these issues. I also thank my noble friend for meeting me recently and for helping me to better understand her very legitimate concerns about the impact bullying can have on the lives of children and young people. I know that she is aware that we share those concerns.
Although I am not persuaded that legislation is the right approach, those discussions have proved extremely useful in identifying gaps in our advice to schools and in helping us to understand how we can do more to address these important issues. As a direct result of the debates in this House and discussions outside it—with both my noble friend and other experts, notably the Anti-Bullying Alliance, which has always provided us with helpful and constructive input in the development of our approaches—we are committed to enhancing our advice to schools. I will say a bit more about precisely what we are doing in a moment.
The Government take a zero-tolerance approach to bullying and our advice to schools on this is clear and firm. I acknowledge that there is a place for legislation. All schools are required to have a behaviour policy which contains measures to tackle bullying, and we think that this approach is the right one. The noble Baroness, Lady Howarth, talked about these policies being on shelves but I do not think that, in the modern world, with the kind of pupils and inner-city issues that we have, any school can afford to have any of these policies on shelves. They are right at the forefront of practice and I know that bullying is something that all good schools take very seriously indeed. However, the national strategy that the amendment proposes could focus schools’ attention on complying with it as a tick-box exercise at the expense of allowing teachers to exercise their professional judgment, creativity and energy to tackle bullying as it presents itself in their particular school.
We had a question earlier today about Islamophobic bullying. Shortly after 9/11, outside Pimlico Academy in Lupus Street, which my wife and I sponsor, there was a fight between 200 non-Muslim and 200 Muslim pupils who just went at each other. It was basically a riot. There were police on horseback and ambulances. It was quite dreadful. Such issues are not easily sorted out by dusting bits of paper off shelves. I am not saying that having a strategy is not important, but that school has worked hard over a long period and I am pleased to say that racism there is a thing of the past. This is essential to all good schools.
However, it is important that schools are held to account for their effectiveness in tackling behaviour and bullying. That is why we reduced the reporting requirements for school inspections in 2011 to focus on the core business of a school: four core areas, of which one is behaviour and safety, instead of the previous 27. In setting out how inspectors should judge this, Ofsted’s inspection handbook includes explicit reference to considering types, rates and patterns of bullying. The noble Baroness, Lady Howarth, also referred earlier to friendship groups. School inspectors must consider how schools prevent and tackle bullying, and where necessary prompt schools to improve. This approach encourages schools really to focus on behaviour and bullying.
I know that concerns were raised in Committee that inspectors do not always see schools as they really are. Since the first Ofsted inspections in 1992, there has been a steady journey towards unannounced visits. Initially schools received more than a year’s notice of inspectors turning up. Over time, this shifted to eight weeks, and from 2005 to around two days. Under this Government, this has been reduced to almost no notice, with inspectors calling head teachers the afternoon before an inspection takes place. In December, launching his annual report, the chief inspector announced that where there were concerns about pupils’ behaviour, including bullying, schools could be subject to visits with no notice at all. I believe that these measures ensure that inspectors see schools as they really are; we no longer hear stories of pupils being sent to the ice rink for the day or asked to stay at home.
Our approach and strategy provide the right balance between requirements in law, flexibility for schools and strict accountability. My noble friend also proposed that a comprehensive definition of bullying be developed. We agree that there is a need to provide clarity for schools, but this is best done through advice rather than legislation. I know that noble Lords expressed concerns in Committee that the advice that we currently outline to schools does not include a reference to the imbalance of power present in many instances of bullying. I confirm that we are working closely with the anti-bullying organisations, and can reassure my noble friend and other noble Lords that we will incorporate an appropriate reference to the imbalance of power in our advice to schools.
In the light of previous debates in this House and subsequent discussions, we have identified how our advice could be further enhanced to address the concerns raised. We are creating an online fact sheet to inform schools about how they can support bullied children. This will include all the relevant information about and links to what steps can be taken to support children who are severely affected by bullying. It will incorporate information about in-school provision, SEN support and alternative provision for children severely affected by bullying. I hope that practical steps such as this will be welcomed.
I hope that noble Lords will recognise that the Government have done a great deal to address the issues around bullying, but we can go further—by acknowledging more explicitly, for example, that severe bullying can have a clear impact on a child or young person’s mental health. Therefore, I am happy to confirm to my noble friend that we will make it clearer in Special Education Needs: Code of Practice, which is a critical document for schools and other bodies, that bullying is one thing that might lead to a child or young person having special educational needs and that, where it does so, schools must take appropriate action. This can involve support from external agencies, if needed, whether or not a child has an education, health and care plan. In addition, we will make appropriate cross-references between the bullying guidance and the SEN code of practice to ensure that schools are clear about this point.
“Application of suspension etc powers to establishments and agencies in England
(1) In section 14A of the Care Standards Act 2000 (power of Welsh Ministers to suspend registration of person in respect of establishment or agency), in subsection (1)—
(a) for “Welsh Ministers” substitute “registration authority”, and(b) omit “for which the Welsh Ministers are the registration authority”.(2) In subsection (2) of that section, for “Welsh Ministers give” substitute “registration authority gives”.
(3) In section 15(4A) of that Act (duty of Welsh Ministers to give notice of decision to grant application for cancellation or variation of suspension)—
(a) for “Welsh Ministers decide” substitute “registration authority decides”,(b) for “they” substitute “it”, and(c) for “their” substitute “its”.(4) In section 20B of that Act (urgent procedure for suspension or variation etc: Wales), in the heading omit “: Wales”.
(5) In subsection (1) of that section—
(a) in paragraph (a) omit “for which the Welsh Ministers are the registration authority”, and(b) in paragraph (b)—(i) for “Welsh Ministers have” substitute “registration authority has”, and(ii) for “they act” substitute “it acts”.(6) In subsection (2) of that section, for “Welsh Ministers” in both places substitute “registration authority”.
(7) In subsection (4)(b) of that section, for “Welsh Ministers’” substitute “registration authority’s”.”
Lord Nash
My Lords, Amendments 57G and 64ZA complement those which I introduced in Committee to pave the way for the introduction of a new framework for the regulation and inspection of children’s homes. We have worked very closely with Ofsted on how the inspection of children’s homes should be improved.
Amendment 57G is intended to equip Oftsed with the powers required to make a prompt and timely intervention when it identifies serious concerns about the care of children. The amendment would extend provisions in the Care Standards Act that already operate in Wales to England to allow Ofsted to suspend a person’s registration in relation to a setting caring for children that is regulated under Part 2 of the Care Standards Act. This means a criminal offence would be committed if a registered person continued to operate the setting while their registration was suspended.
While this power could apply to any setting regulated by Ofsted under Part 2 of the Care Standards Act, for example a fostering service, we expect that it would be used almost always in relation to children’s homes, where Ofsted assesses that there is a need for urgent action to suspend a person’s registration while concerns about a home’s care are investigated.
At present, in England, if there is a serious incident in a home, Ofsted has the power only to cancel a person’s registration. This amendment would enable Ofsted to take action more quickly in cases where this is needed. For example, where there are allegations of abuse in a home, it might be appropriate to suspend a registration while these are being investigated.
Both we and Ofsted recognise that a power to suspend a person’s registration is a draconian one. We expect that moves to suspend registration would happen only on rare occasions where there were very serious concerns. Ofsted would take this action only if, following consideration of other enforcement options, it was judged to be necessary given the specific circumstances of the case.
Ofsted is committed to exercising this power in a fair and proportionate way. For example, we would expect inspectors, as far as is reasonably practicable, to contact a provider shortly before delivering a suspension notice. This contact would make it clear that the suspension would not formally start until the notice had been properly and formally served.
Ofsted already has a power to suspend early years services under the Childcare Act 2006. There is a protocol between Ofsted and the Care Standards Tribunal to expedite appeals against suspension notices by early years providers to ensure early judicial scrutiny of inspectors’ actions in these urgent and extreme situations. Ofsted expects to enter into a similar protocol with the tribunal concerning the new urgent suspension power that this amendment would introduce. Discussions about this are planned between Ofsted and the tribunal in the near future.
I hope that noble Lords will support this important amendment to introduce a new safeguard for vulnerable children so that Ofsted inspectors can take timely and rigorous enforcement action in those rare instances where it is required. I beg to move.
Baroness Howe of Idlicote
My Lords, I support Amendment 59A and I also strongly support Amendments 59B and 59F. I address this from the viewpoint of the children themselves. Children and young people care about the independence of the Children’s Commissioner and support the proposal to prevent any interference by government as set out in Amendment 59A.
In a briefing put together by young people in partnership with Save the Children, they say quite rightly that the commissioner is for them and that it is important that the Government listen to their views on the issue of independence. The young people understand the importance of the commissioner being free to do his job properly. In particular, they are worried about future Governments interfering in the commissioner’s work. Mohamed, aged 16, said:
“If the Commissioner’s full independence is not clearly set in stone then a new Government would be able to change its mind … If it’s not [written down in law] it could change in a few years-time. Even if the Children’s Commissioner has the freedom now to do what they think is right, there’s no guarantee it wouldn’t change”.
So young people are concerned that without this amendment, children may think that the commissioner is not a proper champion of their views and rights, and they may not put their trust in the commissioner.
Young people say that without a fully independent champion, children could grow up to feel disengaged from their community and local and national politics. Najib, aged 12, said:
“If the children’s commissioner isn’t completely independent then young people will feel like they don’t have a voice. When they grow up they may not have the confidence to speak out and join in as they’ve felt that no one has listened to them when they were growing up”.
I hope very much that the Minister will consider young people’s views on this issue and I very much support the proposal brought forward on this by the noble Baroness, Lady Massey.
Lord Nash
I thank the noble Baronesses, Lady Massey, Lady Lister and Lady Howe, and the noble Lord, Lord Ramsbotham, for their contributions. I will speak to the government amendments in more detail shortly, but I would first like to respond to Amendment 59A tabled by the noble Baroness, Lady Massey, and Amendments 59B and 59F tabled by the noble Lord, Lord Ramsbotham.
I am grateful to the noble Baroness for focusing our attention on the key issue of the independence of the Children’s Commissioner. As I stressed during the debate in Committee, in order for the Children’s Commissioner to have credibility with children and children’s organisations, and to meet international standards, we fully recognise that the commissioner needs to be—and be seen to be—acting independently from government. That is why we are removing a number of provisions in the existing legislation that call into question the commissioner’s independence, as recommended by John Dunford following his review. As a result, there is nothing in the legislation that allows the Government to determine what the commissioner’s priorities are, what activities he or she will undertake, or what timescales he or she will work to—these are all matters for the commissioner.
During the debates in Committee, both here and in the other place, the Minister for Children and Families and I provided reassurances on the process for appointing the commissioner, and on providing the commissioner with a sufficient budget. I am happy to repeat them again today. The Government fully recognise the need for the commissioner to be free from any political interference in carrying out his or her functions, and the arrangements in place to appoint the commissioner and provide him or her with a sufficient budget will ensure that this is the case.
I would like to reassure noble Lords that the commissioner’s appointment will be governed by the code of practice published by the Office of the Commissioner for Public Appointments, which ensures that such appointments are made on the basis of merit, following a fair and open recruitment process. This ensures that only those candidates judged by the OCPA recruitment panel to be “appointable” can be put forward for Ministers’ consideration. Further, we have given commitments that Parliament will be provided with an opportunity to comment on the job description and person specification before the post is advertised, and an opportunity to hold a pre-appointment hearing before the appointment is confirmed.
On the framework agreement, as requested by noble Lords in Committee, I have made available a draft of the revised framework agreement that sets out the relationship between the commissioner and the Department for Education. As noble Lords will note, the revised framework agreement includes clear statements about the commissioner’s independence from government.
Noble Lords will also note that, as requested by the Joint Committee on Human Rights, the draft framework agreement includes changes that mirror those made to the framework agreement between the Equality and Human Rights Commission and its sponsor department—changes that seek to ensure that the impact of public sector efficiency controls do not unreasonably constrain the commissioner’s independence.
I now turn to Amendment 59B, tabled by the noble Lord, Lord Ramsbotham, which seeks to add, “initiating and intervening in legal proceedings”, to the non-exhaustive list of activities that the commissioner may undertake in the exercise of his or her primary function, as set out in proposed new Section 2(3) of the Children Act 2004, inserted by Clause 86. During the debates in Committee, I said that initiating or intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function. The commissioner has intervened in legal proceedings on a number of occasions under the current legislation, and there is nothing in this Bill that changes that position.
As now, if the Office of the Children’s Commissioner wanted to bring legal proceedings, it would fall to the judge in the individual case to determine whether the commissioner had “sufficient interest” in the matter. However, the fact that the Children’s Commissioner will have a statutory role to promote and protect children’s rights, suggests that the commissioner would have a sufficient interest in any matter before the courts where children’s rights were involved. The question is not, therefore, whether it is possible for the commissioner to initiate or intervene in legal proceedings, but whether it is desirable to emphasise this aspect of the commissioner’s remit explicitly on the face of the Bill.
There are a number of reasons why I do not wish to do that. First, we have avoided adding to the list, in proposed new Section 2(3), of activities that are already implicit within the commissioner’s primary function. Secondly, while I agree that the commissioner should, in certain circumstances, be able to bring matters before the courts, I share John Dunford’s view that a decision by the Children’s Commissioner to initiate legal proceedings should not be taken lightly. We would expect any commissioner to use this power sparingly, given the range of functions and issues in which the commissioner is likely to take an interest, and in the light of his or her responsibility to make effective use of public funding.
Lord Ramsbotham
I am sorry to delay proceedings, but can the Minister, in the light of what he has just said, assure me that an incoming commissioner will at least be made aware of that provision, and that the assurance that he has just given to the House will be repeated in that briefing?
Lord Nash
I am delighted to give that assurance to the noble Lord. Thirdly, including an explicit reference to initiating and intervening in legal proceedings would raise expectations that the commissioner will take up legal challenges on behalf of any individual or group who brings a matter to the commissioner’s attention. The Office of the Children’s Commissioner is clearly not resourced to operate in that way, and it could end up wasting time defending decisions not to take up particular cases.
I turn now to Amendment 59F, also tabled by the noble Lord, Lord Ramsbotham, which would add categories of children—–namely, children in custody, children who have been trafficked and unaccompanied migrant children—to the definition at new Section 8A, which is inserted by Clause 93. In the Government’s view, it is not possible to define precisely in legislation every interaction that the commissioner and his or her staff might have with children; nor would we want to. What the legislation seeks to do, therefore, is to put down some clear markers that are designed to achieve particular objectives.
First, as noble Lords will be aware, there is a provision that prevents the commissioner investigating individual cases. This is specifically to avoid the commissioner getting swamped with individual casework at the expense of his or her strategic role. John Dunford’s report was clear that where commissioners had taken on a full ombudsman’s role, it had reduced their impact.
Secondly, as recommended by John Dunford, we have included provisions in the legislation that ensure, as far as possible, that the support provided to children within the Children’s Rights Director’s remit can and will continue under the new arrangements. Beyond that, we do not wish to try to enshrine in legislation what level of support the commissioner should provide to individual children who may contact the commissioner or his or her staff. It is inevitable, as now, that children will contact the commissioner through, for example, the OCC’s website. Where they do, we of course expect the commissioner to offer appropriate help.
In many cases, that help would involve signposting the child to information or support. In others, it would involve helping the child to access an existing complaints or advocacy service, while in other cases it may involve the commissioner providing support that is similar to the “advice and assistance” function that the CRD currently provides. Ultimately, if the commissioner felt that the child’s case highlighted a matter of wider strategic importance, he or she could conduct an investigation into that issue. Our view, therefore, is that it should be for the commissioner to determine what level of support to provide to children when they approach him or her. That is why we do not wish to describe how the commissioner should interact with children in legislation, beyond the two exceptions mentioned earlier.
I do not therefore believe that it is necessary to extend the definition at Section 8A to include the groups of children that the noble Lord proposes. The commissioner will have wide-ranging functions and powers to give him or her the flexibility to support children as he or she deems appropriate in the exercise of the primary function of promoting and protecting children’s rights. Many of those children will, in fact, already be covered by Section 8A because they are living away from home and/or are in receipt of local authority services. For example, children on remand to youth detention accommodation are treated as looked-after children.
For children in custody, there are already adequate complaints, grievance and disciplinary systems in place, which the noble Lord will be familiar with, in young offender institutions, secure training centres and secure children’s homes to enable young people to resolve issues relating to their detention. Advocacy services are also provided in YOIs, STCs and SCHs to assist young people in navigating the complaints, grievance or disciplinary systems. Advocacy is provided by Barnardo’s in young offender institutions and secure training centres, with local arrangements in place in secure children’s homes. If a young person is not satisfied with the outcome of a complaint, they are able to refer the issue to the Prisons and Probation Ombudsman, the statutory monitor or the local authority.
Not extending the advice and assistance role to children in custody does not mean that the commissioner cannot investigate matters within the juvenile secure estate as part of a wider investigation. In fact, the commissioner has already done so—for example, with the commissioner’s inquiry into the support available in the youth justice system for young people with mental health issues. So far as the Children’s Commissioner looking at new SEN support in custody is concerned, the key plank of these reforms is to make it clear that the Secretary of State cannot direct the Children’s Commissioner. However, if he or she wishes to consider the SEN reforms, he or she is of course able to do so.
Baroness Massey of Darwen
My Lords, I thank the Minister for that very thorough response. I am particularly pleased to hear that he says that there will be “particular regard” to the UNCRC and that there will be consultation with children enshrined in the law.
On the query about “affirmation on independence” and the lack of “prohibition”, maybe we should look at the wording. Maybe it is just a matter of words, but it is not how I read it in the first place. I accept that the Children’s Commissioner cannot realistically cope with individual cases. That would be far too big a burden and would, as the Minister said, “hamper” the effectiveness of the office. The noble Lord, Lord Ramsbotham, will correct me if I am wrong, but he and I are saying that we see the Children’s Commissioner as a guardian and monitor of children’s rights as well as a champion. We shall see about the issue of the appointment. I hope that the Minister will take note of our concerns on this.
I forgot to ask the Minister about the timetable for this appointment; I do not know if he can reply now or write to me and other noble Lords.
“( ) regulations under section (Application of Part to detained persons)(3),”
“(1A) Section (Contact between prescribed persons and adopted person’s relatives)—
(a) so far as it relates to England, comes into force on such day as the Secretary of State appoints by order, and(b) so far as it relates to Wales, comes into force on such day as the Welsh Ministers appoint by order.”
“(3A) Section (Regulation of retail packaging etc of tobacco products) extends to the whole of the United Kingdom.”
Children and Families Bill
Lord Nash Excerpts(10 years, 3 months ago)
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Baroness Masham of Ilton (CB)
My Lords, I support this amendment and I thought I would say that to give the Minister time.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I thank the noble Baroness. The answer to the noble Countess’s question is that it will be. After Report, we plan to put it into Third Reading. I am very happy for her to discuss that further with officials so that we are satisfied on that point.
The Countess of Mar
I am very grateful to the noble Lord. I am pleased to have had it made clear. On that basis, I beg leave to withdraw the amendment.
““appropriate person” has the meaning given by section (Application of Part to detained persons)(5);
“beginning of the detention” has the meaning given by section (Application of Part to detained persons)(6);
“detained person” has the meaning given by section (Application of Part to detained persons)(5);
“detained person’s EHC needs assessment” has the meaning given by section (Application of Part to detained persons)(5);”
Baroness Hughes of Stretford
I am sure that the Minister will confirm this, but legally free schools are academies.
Lord Storey
When I first came to the House of Lords, I was terrified that I was going to have to give way. Now I have got into the habit of doing so.
As the noble Baroness, Lady Walmsley, rightly said at the beginning, we are in a good coalition. I have to pay tribute to the Minister—no, I do not have to; I want to—who has made great strides in this area and has come forward with some really worthwhile and sensible proposals. Not only has he given finance to the PSHE Association, he has also set up this advisory group. In this area, we must not have an advisory group that says, “We’ve done our job and that’s it”. I cannot now remember who it was who said that these issues are changing almost year by year, and problems that we do not foresee now could well be something that an advisory committee will have to look at in future. I hope that any advisory committee that is set up, when it has done its first piece of work, will continue to advise us on these important issues.
As someone who strongly believes, as I have said, that this is something that should be part of a national curriculum for all schools, I am in a difficult position as I also appreciate the situation that our Minister in the House of Lords faces, and will think very carefully before I vote.
Lord Nash
My Lords, this has been an extremely thoughtful and well informed debate. I thank the noble Baronesses and the right reverend Prelate who tabled these amendments, as well as other noble Lords who have contributed and brought their valuable insights to bear on these important and very sensitive matters. I also thank all noble Lords who attended the round table on PSHE last week. We had an extremely helpful discussion, and I think that those who came to that meeting know how seriously we take these matters.
I will deal with each amendment in turn, beginning with Amendment 53 on sex and relationships. Before I explain my approach to this point, I must stress that like many noble Lords with an interest in this topic, including my noble friend Lady Walmsley, I see SRE as integral to the whole debate on PSHE, and I shall say quite a lot more about PSHE when we come to the amendment in the next group. SRE is part of PSHE, and both are part of an overall approach that schools take in helping children to build the resilience and the understanding that they need as they prepare for adult life, tailored to children’s needs and development.
Before I turn to the SRE amendments, noble Lords may find it helpful for me to reiterate the progress that we have made on PSHE, as SRE is so integral to this. I am grateful to my noble friend Lady Walmsley for her kind words in relation to this progress, and I hope that it shows a positive and dynamic approach as opposed to a complacent attitude, to which the noble Baroness, Lady Jones, referred. I hope that she knows better by now—that I am never complacent when it comes to the children and young people of this country.
As I explained in my letter to Peers last week, we are establishing a PSHE expert group to support better teaching. This is the same approach that we are taking to subjects in the national curriculum and I will say more about this shortly. I am also pleased to announce that we will be funding the PSHE Association for a further financial year and it has agreed to produce a set of case studies to illustrate excellent PSHE teaching.
Turning now to specific points on SRE, I emphasised in Grand Committee that for children and young people to develop a good understanding of sex and relationships high-quality teaching is paramount, which is an issue that has been highlighted in this debate today. In order to teach well, teachers must have ready access to reliable and well informed sources of advice and materials. This includes recognition of the effects of digital technology, such as the potential for exposure online to inappropriate materials, to which a number of noble Lords have referred.
The noble Baroness, Lady Jones, referred to the pace at which technology now moves. It is moving so quickly that it is not practical for government to keep abreast by constantly revising statutory guidance to reflect the current state of the art and the latest communications breakthroughs. For instance, Snapchat, Tumblr, Whatsapp and Chatroulette are very recent sites or apps, and any guidance that we issued would be quickly overtaken by new trends and technology that will proliferate in the future. Any revisions to guidance would soon be outflanked by the next phase of innovation.
It is right that we are continually considering how to respond to these developments, and give teachers and parents the help, advice, safeguards and assurances that they need. The noble Baroness, Lady Kidron, talked passionately about the dangers of the internet when I first started to look at this matter. I spoke to many people—experts in IT and parents. The frightening thing was that the more that they knew about online and IT the more concerned they were. I am fully aware of the issues, but as my noble friends Lady Walmsley and Lady Tyler have said, the question is about which approach will work best. I believe that specialist organisations are best placed to provide advice, materials and guidance in a dynamic way and regularly update it.
I am therefore delighted to draw noble Lords’ attention to a number of organisations that are doing this, and the action that my department is taking to support and promote that work, and to make sure that it is closely linked to schools.
I welcome the work of the PSHE Association, the Sex Education Forum and Brook on new supplementary guidance that is designed to complement the SRE guidance, and will address changes in technology and legislation since the turn of the century, in particular equipping teachers to help protect children and young people from inappropriate online content, and from online bullying, harassment and exploitation. We have always maintained that specialist professionals are in the best place to provide advice to schools, so I look forward to the publication of this guidance and will make sure that we draw schools’ attention to it by, for example, promoting it through the department’s termly e-mail to schools.
I will also highlight other examples of guidance from specialist organisations that I have made sure will be promoted to schools. Guidance on the best way for teachers to tackle the dangers associated with online pornography has been provided by the Sex Education Forum. The Child Exploitation and Online Protection Agency has published a range of free educational resources—films, lesson plans, presentations, practitioner guidance, games and posters—to help teachers protect young people from the risk of sexual abuse and exploitation. The NSPCC has published guidance for parents, who have an essential role to play, on inappropriate texting. Parents can also phone the NSPCC ChildLine for advice.
We have identified action that we will take in the department to make sure that schools have the support and information that they need. As I have already mentioned we have set up a new expert subject group on PSHE and SRE. The group comprises lead professionals in the field of PSHE and SRE practice, and I am particularly pleased to say that it will be chaired by Joe Hayman, chief executive of the PSHE Association. It will clarify the key areas on which teachers most need further support, and identify the topics that can present the greatest challenge when discussing them with pupils, engaging their interest and enabling their understanding. The expert group will then liaise with relevant specialists and providers to commission or develop and produce new resources where necessary.
The noble Baroness, Lady Howarth, asked if the review would be comprehensive. I have been given the letter—I cannot read it now—but I can assure her that we will make it as comprehensive as we can. As far as the timing is concerned, I do not personally intend to stay in this job after May next year whatever happens, so I can also assure her that I shall be seeking to announce its findings as quickly as possible so that we can take action in relation to them. There is no point in setting this up unless we listen to what these people say and ask them, frankly, to get on with it. My noble friends Lady Tyler and Lady Walmsley were particularly welcoming of this expert group and they are right. We should give it time to make a real difference to practice—and it will, along with other approaches that we are taking.
Noble Lords will be interested to know that my department is currently preparing revised statutory guidance on safeguarding children in education. This will clarify schools’ statutory responsibilities to use opportunities in the school curriculum, for example through PSHE, to teach children about safeguarding and personal safety, ensuring that there is a culture of safety and that children stay safe, including when they are online. The guidance will signpost schools to further sources of advice on specific safeguarding issues, such as advice issued by the Home Office as part of its This is Abuse campaign. This supports teachers working with 13 to 18 year-olds to understand how to avoid becoming victims and perpetrators of abusive relationships.
The noble Baroness, Lady Jones, raised a sensible concern about this guidance being fragmented. We will ensure, when we highlight the additional guidance, that it is linked to the existing statutory guidance, so I am confident that it will be coherent and not fragmented. In addition, the new expert group will have an important role to ensure that the signposting of all guidance on PSHE and SRE is coherent.
Finally, the Government continue to work closely with industry through the UK Council for Child Internet Safety, which brings together representatives from industry, manufacturers, charities, academia, social media, parent groups and government. I am pleased that we will be supporting Safer Internet Day on Tuesday 11 February, promoting more widely the safe and responsible use of online technology and mobile phones, and making the internet safe for children. The House will debate this and other extensive work that the Government are doing in relation to internet safety when we come shortly to debate the amendment tabled by the noble Baroness, Lady Howe.
On Amendment 53ZAAA, which concerns statutory SRE in primary schools, the current requirement applies only to key stages 3 and 4 in secondary schools. The amendment extends the current statutory requirement to teach SRE, which applies to key stages 3 and 4 in maintained secondary schools, by legislating for all compulsory SRE in primary schools and all academies. It would mean compulsory SRE for children as young as six. Many primary schools already choose to teach SRE according to children’s age and development, consulting their parents and using age-appropriate resources. In particular, good primary schools are committed to helping children develop an understanding of positive and appropriate relationships. The new science curriculum will also ensure that pupils are taught about puberty in primary school, which is an issue identified in the Ofsted report.
We believe that this is the best approach, with the right balance between legal requirement and professional judgment, taking account of the evidence about child development and maintaining the support of parents. The amendment would disturb this balance, and remove from teachers and governors any control over their school’s approach to SRE. It would also impose on academies a new requirement, when in fact the vast majority of academies already teach SRE as part of their responsibility to provide a broad and balanced curriculum, and a fully rounded education.
I agree entirely with my noble friend Lady Eaton that this is a very good example of legislation not necessarily being the solution to life’s ills. As my noble friend Lord Storey, who has vast experience of more than 20 years as a primary school head, said, this is a matter of practice and not something that we can solve through legislation.
The other part of this amendment would require schools, when teaching SRE, to include same-sex relationships, sexual violence, domestic violence and sexual consent across all key stages. By virtue of Amendment 53ZAAA, it would mean compulsory teaching of these issues for children as young as six. The statutory guidance already covers these very important topics, and all schools must have regard to the guidance when teaching SRE.
The existing guidance states that pupils should,
“develop positive values and a moral framework that will guide their decisions, judgements and behaviour; be aware of their sexuality and understand human sexuality … understand the consequences of their actions and behave responsibly”,
and,
“have the confidence and self-esteem to value themselves and others”.
It is also important to note that the guidance includes clear references to safeguarding duties and to safeguarding guidance for schools. Supported by expert guidance and resources from specialist organisations, as I have described, the statutory guidance continues to provide a strong framework and platform on which teachers can build, using the kind of specialist contemporary advice and resources to which I have referred.
To conclude, I once more extend my thanks to noble Lords for these amendments and to other noble Lords for contributing to the debate. I hope that they will agree that we have made progress in working with others in government and with specialist organisations—in particular, the PSHE Association, the Sex Education Forum and Brook, which will announce their guidance next month—including by promoting their resources in schools. While I believe noble Lords are seeking the same outcome—the best teaching and age-appropriate support for children—for the reasons I have explained, I do not believe it would be right to introduce statutory SRE at key stages 1 and 2.
I have said on a number of occasions recently in your Lordships’ House that it would be so much better if we could agree common ground in relation to what needs to be done to improve our school system. I have been extremely encouraged by recent statements by the shadow Secretary of State for Education, which indicate that a substantial amount of common ground is emerging. We should celebrate this common ground and the common ground we have in relation to our expectations of schools in relation to PSHE and SRE. Of course, the noble Baroness may wish to take the temperature of the House on these matters, but I think it would be better if we continued to work together outside the confines of the Bill to achieve our common end. That approach has stood us in good stead during the passage of the Bill, and I urge the noble Baroness to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I thank all noble Lords who have contributed to this debate. I also thank the Minister for his response. I agree that we have had a very thoughtful and well informed debate. First, I reiterate what I said at the outset: we welcome the fact that SRE guidance is now going to be amended. We acknowledge that step forward. We are increasingly coming round to the point of view that that in itself is simply not enough. My noble friend Lord Knight made the point that under the previous Labour Government, relying on voluntary steps got us so far but did not make the transformation that we wanted. That is why we were working round to the idea that PSHE should become compulsory because we had had voluntary advice and guidance for a very long time and not a lot had changed. We all welcome the involvement of the PSHE Association in updating the guidance. Today, it has issued a statement saying that guidance is not enough. It says that it supports both the amendments that have been tabled today.
The noble Baroness, Lady Walmsley, rather reluctantly acknowledged that our amendments are a step in the right direction. I welcome that. It was, of course, open to her side to table an amendment on PSHE if she felt so passionately about it, but nevertheless I hope she will acknowledge that our amendment is a step forward. I agree with my noble friend Lady Kennedy that we should rise above using this as a political football. We have much in common across the Chamber on this and are concerned about what is happening with the exploitation of young people. We need to address that and should not just try to score points on it.
Baroness Howarth of Breckland
My Lords, I also support the noble Baroness, Lady Massey, in her campaign and I believe that the Minister supports her too, whether or not it is through this amendment. Having been to the recent round-table discussion and knowing of the progress that the Minister has made, I simply ask my question again. Although the timescale may be shorter than he would like, with what speed does he think he can bring about a culture change in schools whereby PSHE is central to and a core part of all schools in all sectors? Many of us believe—and it has been enunciated very clearly in the debate—that this would make a real difference to the lives of our young people, who are trying to grow up in this very difficult, changing world.
Lord Nash
My Lords, this has been a very insightful debate. I thank all noble Lords who have tabled these amendments and other noble Lords who have contributed their knowledge and insights on this important matter. I am particularly grateful to the noble Baroness, Lady Massey, for her constructive and well argued contribution and for meeting me on a number of occasions to discuss this area in more detail. I also thank again all the noble Lords who came to the PSHE round table last week.
During our various debates and discussions on PSHE, SRE and related matters, two things have become clear to me. The first is that in the field of PSHE and SRE —character resilience, producing rounded and grounded young people, raising aspirations, pastoral care and so on—we share a common view that all these matters are absolutely essential to what a good school does. As I have already mentioned, we should embrace this as an example of how, despite the politics that often surround education, we have an absolutely common purpose when it comes to our expectations of schools. Certainly, I have a very high expectation of schools on these matters, and they should engage with all the relevant organisations and charities and so on to meet this.
As for the comments of the noble Baroness, Lady Howarth, I intend to ensure that there is such a culture change. This is absolutely essential in the offer of academy groups that are taking over schools that have been failing for years. They appreciate that there is no way that they can engage these children in education unless they are in the right frame of mind. We also know that, sadly, in recent decades our society has collapsed so much that schools have to do much more, standing in the position of parents in supporting children’s education. To me, PSHE is absolutely central. It is something that all good schools should do, and we are seeing it happen increasingly as we improve the state of education.
The second thing that perhaps I have been a little bit slow to grasp—I particularly thank the noble Baroness, Lady Massey, for bringing this home to me—is that not all schools share the belief that PHSE and SRE are so central and important. We need to give them all the help we can to link them to organisations which are specialists in the various areas and are able to update their advice, guidance, training and so on in a dynamic way, keeping abreast of the changes.
Noble Lords have heard me say many times that this Government do not wish to be too prescriptive about precisely what they set out for teachers. Such regulations can be updated only occasionally and cannot be dynamic and keep up with events in a fast-changing world.
Baroness Massey of Darwen
My Lords, I thank the Minister for his very positive response and for all his hard work and that of his officials leading up to this debate. We have heard two very powerful debates with very little dissent on the importance of personal, social and health education, including sex and relationships. This is why we need to regroup and talk together about how we carry things forward. I take the Minister’s point that an awful lot has been done but I would like one more regrouping to consider it. In the mean time, I beg leave to withdraw the amendment.
Lord Northbourne
I am impressed by what the noble Lord has told us about what the Government are doing. Unfortunately, I still have one serious anxiety. Although regulations require schools to have a proper and well considered PSHE syllabus, on the sample that I was able to take the vast majority of schools ignore that obligation. It is a regulation and therefore, presumably, it is the duty of the local authority to enforce it. I brought forward my amendment to get this issue on the statute book so that schools would have to do all these things that we are talking about. I am sure that the noble Lord may be able to convince me that this will happen, but I reserve the possibility of bringing the matter back.
Lord Nash
I assure the noble Lord that I take this matter very seriously, as I said in reply to the noble Baroness, Lady Howarth. We expect all schools to do this and will do all that we can to ensure that they do. However, I must say to the noble Lord that I do not think that we can bring this matter back at Third Reading. I have already reflected on it in some detail. I must say to him that if he wishes to test the temperature of the House, he should do so now.
Lord Northbourne
Subject to that reservation, I beg leave to withdraw the amendment.
The Earl of Listowel
My Lords, I am prompted by the amendment of the noble Lady, Baroness Walmsley, to draw your Lordships’ attention again to the widespread concerns about the adequacy of funding for the two year-old and three year-old entitlement. This is a long-standing concern. If it is so important that we have high-quality early years care, certainly the Government and the taxpayer should fund it properly. I apologise that I did not take the opportunity to raise this with the Childcare Minister, Liz Truss, when I last saw her. If it is possible during the passage of the Bill to discuss children’s centres with her, I will certainly take the opportunity to raise the question.
Lord Nash
My Lords, I thank the noble Baronesses, Lady Hughes and Lady Jones, and my noble friends Lady Walmsley, Lady Tyler, Lady Sharp and Lord Storey for raising these important issues and bringing their experience to this matter.
The purpose of the Ofsted inspection of a childminder agency is to hold it to account for the quality of care its childminders provide, in order to deliver the best outcomes for children. Last week, Ofsted published its consultation on childminder agency inspections. This set out its proposals to ensure that Ofsted regulation of agencies will support quality improvement and will be centred on the needs of young children and their parents.
A key feature of the childminder agency model is that it is the agency rather than Ofsted that is responsible for the monitoring and quality assurance of the childminders who are registered with it. As part of the inspection of an agency, the Bill already gives Ofsted the power to inspect the individual childminders who are registered with an agency. Ofsted plans to use this to undertake sample inspections of childminders registered with agencies, which is comparable to the arrangements that already exist for Ofsted inspection of voluntary adoption agencies and independent fostering agencies.
We want to empower agencies to improve childminder quality. Requiring direct Ofsted inspection of agency-registered childminders could weaken the incentive for agencies to be responsible for improving the quality of childminders registered with them. We intend that agencies will help remove some of the burdens that childminders currently face. We do not want to complicate the quality assurance regime for agency childminders by making them subject to two separate inspections by both the agency and Ofsted.
However, Ofsted will retain its existing powers of entry to any registered childcare premises to determine whether providers are complying with requirements imposed by the Childcare Act 2006. Therefore, if there are concerns about an agency-registered childminder, Ofsted will have the power to go in and investigate, as my noble friend Lady Walmsley said. Indeed, we envisage that childminders registered with agencies will have much more contact, including more frequent home visits, than childminders currently have with Ofsted. Under the current Ofsted arrangements, a childcare provider might have to wait up to four years between inspections.
I am sympathetic to the concerns of my noble friend Lady Walmsley about the scope of Ofsted inspection of agencies, and how such inspections relate to the quality of care and education offered to children. Ofsted intends that inspection reports of agencies will consider how a childminder agency can assure itself of the quality of its registered childminders. While this was always our policy intent, I can see, for the avoidance of doubt and to make it absolutely explicit, that it would be helpful to reflect this in the Bill. I have therefore brought forward an amendment to place a requirement for this in the Bill. The amendment will require Ofsted to report on the effectiveness of a childminder agency’s arrangements for assuring itself of the quality of its registered childminders, and of the quality of experience offered to children. I hope that this gives my noble friend the reassurance she sought, and I urge the noble Baroness to withdraw her amendment.
Baroness Hughes of Stretford
My Lords, I thank the Minister for that reply and thank other noble Lords who contributed to the debate. I will briefly make two points. First, inspection of voluntary adoption agencies is directly comparable to the inspection of childminder agencies in the sense that with the former, the situation of the child in an adoptive situation is much more open and is scrutinised by a wide range of people. When a child is placed for adoption, the suitability of adoptive parents who have been selected and prepared by the agency is ultimately overseen by the court and will have been seen by many other professionals concerned with the child’s welfare. When young children are in a childminding situation—and we are talking about very young children—nobody, apart from the childminder, sees what goes on there day to day. It is a very closed situation.
That is why I disagree with the noble Baroness, Lady Perry, because this is one of the most important situations, which should be subjected to the highest level of inspection that we can possibly muster. Things can happen in that situation, and the quality of what is provided can be poor. That is more likely to be an issue in areas where childminders are in short supply and where children are disadvantaged in a range of other ways. Therefore, it is of great concern that we may be going in a direction in which there is less scrutiny of the situations of very young children in a childminding situation than of almost any other area of children’s social care and children’s services.
However, I note the Minister’s responses. I am also concerned that what may be driving this, as the noble Baroness, Lady Perry, said, is that Ofsted feels that it cannot manage this. The level of resource is driving the policy; we are not being clear about what we should be trying to achieve for young children by way of inspection and ensuring quality. That remains of great concern to me for the reasons I have outlined, but I accept that the Government will not move from their position at the moment, and therefore I beg leave to withdraw the amendment.
Baroness Howarth of Breckland
My Lords, if I had got my timing right, my name would have been added to this amendment. I regret that something as important as this is being rushed at this late hour. This is a crucial bit of our social care that has become unscrambled because of the way that we have split adults’ and children’s social care.
Of course, in a Bill on children, when we are looking at children’s issues, the welfare of the child must almost always be paramount, but that is true throughout the legislation that we look at, and it would have been true if this issue had been looked at in the Care Bill. However, the Minister will remember that in the discussions on the Care Bill it was felt that this was a children’s issue and therefore better dealt with in the Children and Families Bill. Again, the split has meant that this matter has not been properly dealt with, and therefore I hope that the Minister can pick it up and deal with it properly now.
Anyone who has worked with families as a family social worker for many years will know that, unless you pay attention to the needs of parents, you can in no way help their children. It is the parent who is going to make the difference to the child by providing the care. If they have a life of their own and feel cared for themselves, they will give better care to the disabled child whom they have to manage day in and day out. Having met those families, the Minister will know the toll that that has on the humanity of these people, never mind everything else. It is very difficult to continue loving and caring for your children when the stress you experience is so high and the level of support you receive is so low.
I do not think that it is beyond the wit of the officials and the Minister to think this through, just as the issue of young carers has been thought through, to get a much better package that ensures that parent carers form part of a total assessment and that the assessment is not split down the middle because we just happen to split services down the middle. The whole issue needs to be looked at as a total package in a holistic way, and a proper plan should be made for the whole family and not just bits of it. In that way, we will have much more success both for the children and, most certainly, for the adults who give their lives day in and day out to caring for their children. If that does not happen, the children will end up either in respite care or in the care of the local authority, and that will cost the nation a great deal more.
Lord Nash
My Lords, I thank the noble Baronesses, Lady Pitkeathley and Lady Lister, for tabling these amendments and for sharing their significant expertise on the issues concerning carers.
Following the debate in Grand Committee, I was pleased to be able to meet the noble Baroness, Lady Pitkeathley, and my noble friend Lady Tyler just before the Christmas Recess to discuss their concerns further. Since then, there has been a very productive series of meetings between my officials and representatives of parent carers and local authorities to discuss the evidence and options for reform. As the noble Baroness, Lady Pitkeathley, said, she and I also had a further meeting last week with my noble friend Lady Tyler and representatives of parent carers. The meeting was extremely informative and moving and I would like to thank Caroline, Sarah and Sherann for taking the time to share their experiences with me and officials.
“Extension of licensing of child performances to children under 14
Section 38 of the Children and Young Persons Act 1963 (licences for performances by children under 14 not to be granted except for certain dramatic or musical performances) is repealed.”
Lord Nash
My Lords, I shall speak to Amendments 57A, 64A and 65C, which deal with child performance licensing. I thank my noble friend Lady Benjamin for raising this issue in Grand Committee and for pressing it with such conviction. Her passion and commitment to support children to participate in the creative arts is inspirational. Before Christmas I had the great pleasure of a meeting with my noble friend Lady Benjamin and representatives of the Producers Alliance for Cinema and Television. We discussed how to remove barriers that restrict children’s opportunities, without diminishing the important safeguards currently in place for child performers. Many children grow up to have careers in our cultural industries, which are of real economic significance, and are recognised and admired throughout the world. Some children simply enjoy performing and they want to have fun. Taking part in a performance can increase their confidence and help them develop transferable skills, such as teamwork and communication.
We all agree that children must be able to access performance opportunities and should not be prevented from doing so by outdated rules or excessive red tape. It is essential that those who put on performances with children take steps to keep them safe and ensure their well-being. We all know that paperwork does not protect children. We must refocus the performance licensing system on its true purpose, which is to safeguard children in performances, not stifle their opportunities.
I am pleased to say that we have found a way forward and we plan several actions to improve the system. First, Amendment 57A will insert a new clause in the Bill to repeal Section 38 of the Children and Young Persons Act 1963. That repeal would remove restrictions on the circumstances in which a local authority can issue a performance licence to a child under the age of 14. Currently, a local authority can issue a licence to a child under the age of 14 only where the licence is for acting or dancing in a ballet and the part can be taken only by a child, or where the nature of the child’s part is wholly or mainly musical and either the nature of the overall performance is also wholly or mainly musical or the performance consists only of opera and ballet. Amendments 64A and 65C are consequential amendments relating to the commencement, and the extent, of the repeal.
Outside the Bill, we are taking forward changes to the regulations. We will remove the requirement for medical certificates; remove unnecessary restrictions on the types of activities that children can do each day; and streamline and align the hours that children can take part in different types of performance so that there is consistency between them. In addition to the changes we plan to make to legislation, work is in hand to improve consistency of approach in local administration of child performance licensing. The Department for Education is working with a range of partners, including the local authority sector, professional and amateur theatre groups, the broadcasting sector and casting agencies, to support the development of best practice guidance. We are also working with the Local Government Association to ensure that this work will have resonance and applicability across the local authority licensing sector.
We believe that the combination of actions we are taking will make a huge difference, while ensuring that we get the balance right between increasing opportunities for children and protecting them from undue risks. Our actions should lead to increased opportunities for children to take part in performances, without reducing important protections to keep them safe when they do. I hope that noble Lords will be pleased with our plans and proposed amendments, and the positive impact that they will have for young people. I beg to move.
Baroness Benjamin (LD)
My Lords, I thank my noble friend the Minister from the bottom of my heart for inserting these new clauses in the Bill, as they are a positive move forward. They will not only improve child protection but also provide equal opportunities for children across the country through primary legislation, and enable them to take part in all aspects of the new media environment they now live in. They will also address any postcode lottery issues, which will be welcomed by children who in the past were subjected to rejection and disappointment through no fault of their own, but at the whim of local authorities and outdated regulations.
The amendment also deals with the complex restrictions in the hours that children can perform, which is also most welcome, as it will create a level playing field. Yes, this is truly great news. It is very positive that the Government will revisit a number of other conditions through secondary legislation, and to learn that my amendments not adopted in the Bill will be dealt with under best practice through guidance for local authorities currently being developed by the GLA. However, I would like to emphasise to the Minister that PACT and the industry coalition I have been working with are open to working further with the Government on improving the approach to risk assessment by local authorities, to make the approach more consistent across the UK, and I hope this offer will be taken up.
All in all, broadcasters, producers, theatres and those across the creative industries will be delighted with these amendments. On their behalf, and on behalf of all those working with and employing children, I would once again like to thank the Minister and his team for all their hard work, commitment and consideration. I am also grateful to all the noble Lords who have supported me on these amendments. It shows how this House, no matter how late the hour, can work together to achieve progress, and how we can make a positive difference to the lives of others, so thank you.
Lord Stevenson of Balmacara (Lab)
My Lords, in Committee we were pleased to support the noble Baroness, Lady Benjamin, and the noble Viscount, Lord Colville, in seeking to update the legislation applying to child performance. As has just been made clear in the exchanges that preceded my speech, this is something that has been long overdue since 1963. Clearly the world of television and film performances has been transformed since then, and it is good that the Government are bringing forward their own amendment on this point, so that the legislation can properly reflect the full range of opportunities available to young people today, while at the same time building in the necessary safeguards that will protect them from exploitation, or physical or mental harm.
It is good to hear that Section 38 of the Children and Young Persons Act 1963 has been repealed, and that, in parallel, the paperwork that has normally been required, and which was often variable across the country, is going to be streamlined. This is, all in all, a very satisfactory solution. We all heard the pleasure that was expressed by the noble Baroness, Lady Benjamin. I would like to think I could join her in that; however, I would not be able to do it in such a professional and powerful way. Nevertheless, I thank the Minister.
Lord Nash
I am extremely grateful to my noble friend Lady Benjamin and to the noble Lord, Lord Stevenson, for their comments, but my noble friend made her case so powerfully and clearly that, frankly, it was not a very difficult decision. The changes are entirely a tribute to her passion and determination on this subject. I strongly encourage noble Lords to support these changes.
Special Educational Needs (Direct Payments) (Pilot Scheme) (Extension and Amendment) Order 2014
Lord Nash Excerpts(10 years, 3 months ago)
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The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, this order enables the Secretary of State to extend and amend the pilot scheme made under the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012 that allows the testing of direct payments for SEN provision in the SEN pathfinder areas. The pilot scheme has demonstrated the potential for SEN direct payments to make a positive—“life-changing”, to quote one parent—impact on families. I have seen first hand the benefits that direct payments can bring. When I visited the Hertfordshire pathfinder I met another parent who used a direct payment to pay for a personal assistant to take her disabled child swimming, allowing her to focus on spending time with her other child. Other examples of the use of direct payments are for transport, one-to-one learning when the child is not well enough to travel to school, personal assistants coming into the classroom or the purchase of equipment. It is this choice and innovation that we are bringing to SEN provision and why, as noble Lords will be aware, we have taken forward the learning from the pilot in provisions for personal budgets in the Children and Families Bill.
The Bill is now reaching the end of its journey through your Lordships’ House and through Parliament so it is important to set out why it is also necessary to amend and extend this pilot scheme. There are two key reasons. First, extension is necessary to allow the arrangements established with families under the pilot to continue until the provisions in the Children and Families Bill are commenced. Extension will also provide a transitional period, up to the end of September 2015, to move these families from statements on to the new system of education, health and care plans and the associated offer of a personal budget that entails. As I have already said, many of the families that have taken advantage of the scheme have seen real benefits. Failure to extend the order would mean that these families would need to revert to more traditional, and in their cases, less effective forms of service delivery.
Secondly, the extension will allow the authorities named in the order to enter into new arrangements with families and refine how best to operate SEN direct payments right up to the point of implementation of the reform programme. This will ensure that we have the best possible evidence base ahead of implementation. It will inform both the work of the personal budget champions and the thematic evaluation of personal budgets, including direct payments, being undertaken as part of the evaluation of the pathfinder programme and due to be published in the summer. Removal of the right to request a direct payment under paragraph 3 of the schedule to the 2012 order after 31 August 2014 will provide for the formal closure of the pilot to new entrants from 1 September 2014. I should stress that all other articles in the pilot scheme remain unaltered.
To conclude, this is a simple transitional provision that bridges the gap between the end of the pilot scheme as set out in the 2012 order and the introduction of the reforms as set out in the Children and Families Bill. As such, I hope that noble Lords will give it their support.
Baroness Morgan of Ely (Lab)
My Lords, I am sure that all noble Lords will welcome any effort to develop a system that would lead to improvements in the effectiveness of the provision of services to individuals with special education needs. The educational requirements of individuals with special educational needs are, by definition, likely to be varied and need to be special. Intuition would tell us that these needs may best be fulfilled by services that are chosen and arranged specifically for each individual. Placing the responsibility of managing funds with families gives decision-making power to those who care most about their children—parents or carers with children with special education needs. That can, in principle, help to improve the suitability of services and result in better educational outcomes.
When advocating autonomy for those individuals receiving direct payments, we do, however, need to bear in mind a few issues. It must be ensured that the diversion of funds to personal budgets does not lead to a reduction in the standards and quality of services which we know are delivered by most well organised local authorities at the moment. This is a known concern of many parents and professionals in the sector itself. We must also be assured that the quality of outcomes for those young people on the direct payments scheme will not fall below the standards we have learnt to expect from service delivery by local authorities.
Although the principle of allocating discretion to families is a positive one, there are no guarantees that providing families with the discretion to organise their own services will necessarily deliver adequate educational outcomes. Reports from the ongoing pilot have suggested that real benefits to the young people concerned and their families occur mainly from the enhanced control regarding the organisation of transport. Further evidence from the pilot is needed to ensure that, if this is indeed the case, benefits are restricted to the organisation of transport. We need to see that the scheme is sufficiently justified.
Some individuals may have no desire to organise their own service provision. This may be due to the individual already receiving suitable support of a high standard or because the family concerned feels unable to arrange a better service itself. In such cases, the direct payments scheme must not be made mandatory. In cases where direct payments are requested, sufficient support must be made available to ensure that individuals who may experience difficulty with implementing their own arrangements can do so effectively. Concerns were raised regarding this issue when the Minister of State for the Department for Education shared the worries expressed by respondents to the initial consultation regarding these proposals.
Assurances must also be given to taxpayers regarding the value for money provided by the direct payments initiative. When specialist services are provided from small markets with limited choice, such as those which exist in the provision of transport for people with a physical disability, it must be ensured that a limited market does not inflate prices. The interests of the taxpayer must also be safeguarded from the inevitable fragmentation of budgets caused by dividing funds between service providers, which may cause losses from diseconomies of scale.
However, the need for an extension is accepted. The slow progress which the direct payments pilot scheme has experienced has necessitated its extension. It also makes sense to wait until the Children and Families Bill has gone through its legislative process. If more time is needed for the assessment of this scheme before a potential larger-scale rollout, the time must be used to develop confidence in the practical successes of devolving SEN provision budgets. If this confidence is instilled, progress can be made in realising the implementation of the scheme on a countrywide scale, but it would make sense to wait until the pilot has had an extended run.
When the Secretary of State lays his report before both Houses, after the conclusions of this pilot study are produced, the concerns aired by the critics of this piece of legislation will need to be considered with respect and reason. In the mean time, it is essential that the concerns which have been highlighted today are borne in mind. Further evidence gathered from the pilot scheme must demonstrate that the direct payments method for SEN provision indeed provides value for money and delivers high-quality services, yielding acceptable educational outcomes for all young people with special educational needs.
Lord Nash
My Lords, I am grateful for the noble Baroness’s comments and her support for the scheme. Extension of the scheme will allow families to continue to benefit from SEN direct payments and refine our knowledge right up to the point when our reforms come into force.
So far as ensuring that direct payments do not affect other services, paragraph 11(c) of Schedule 1 requires local authorities to consider the impact on services for other users before they can agree an individual arrangement. We do not have any evidence from the pilot that this has been an issue. We will take forward similar protections in regulations to be made under Clause 49 of the Children and Families Bill. The noble Baroness is quite right that, so far, transport has been the main area that direct payments have been used in. However, it is early days and it is inevitable that people will be slow to take this up. It is also clear that there are many other areas where people have benefited. In addition to allowing transition and continuing the scheme for those people who have already taken it up, it is important to continue with the learning.
I entirely agree with the noble Baroness about making sure that we achieve value for money for the taxpayer. My conversations with local authorities in relation to both the local offer and direct payments have so far been surprisingly positive in the sense that some people may have thought that allowing more flexibility would increase costs. Allowing a more discursive and inclusive arrangement for this kind of provision seems in many cases to have led to less contention and therefore less costs.
Measures for accountability and quality control will be taken forward under regulations to be made under the Children and Families Bill. For example, the EHC plan must set out details of the needs and outcomes to be met by a personal budget and the arrangements for any use of direct payments, including for services, the amount and frequency of the payments, and the arrangements for review. As with the pilot scheme, Clause 49 will require a review of the use of direct payments at least once within three months of the direct payments being made, at the end of the first year, and at appropriate intervals thereafter not exceeding 12 months.
We will have further opportunities to debate SEN direct payments and personal budgets more generally when we scrutinise regulations to be made under the personal budgets provisions in the Children and Families Bill. With that, I hope that we can agree the order.
Schools: Independent Schools
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Lord Lexden
To ask Her Majesty’s Government what assessment they have made of the level of public support for an open access scheme to independent schools.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, we have made no assessment of public support for the open access scheme. We want all pupils, regardless of the type of school they attend or their background, to receive a high-quality education. We are delighted that the independent sector is so willing to engage with the state sector, as it does on a number of fronts such as independent state school partnerships and bursaryships, but we want to spend taxpayers’ money in the state school sector. With that money, through our education reforms, we are transforming the state school system to ensure that every pupil has the opportunity they deserve.
Lord Lexden (Con)
I thank my noble friend and, in doing so, declare my interest as president of the Independent Schools Association and of the Council for Independent Education. Does my noble friend not agree that wider access to independent schools could make a powerful contribution to the greater social mobility that we all want? Has he noted that within the independent sector itself, where more than a third of families now pay reduced fees, among heads and teachers there is considerable enthusiasm for more open access, which need involve no increase in public spending? In 1940, Churchill said that the advantages of the public schools should be extended on a far broader basis. Is it not time that we got on with it?
Lord Nash
My Lords, I know that my noble friend is passionate about social mobility through education and I look forward to the Independent State Schools Partnerships conference next Monday, at which we are both speaking—a conference designed to promote partnerships between independent and state schools. As he said, the independent sector has a long history of increasing social mobility through bursaryships, scholarships and collaboration. In 2013, it provided more than £300 million worth of assistance, benefiting 40,000 children, and we absolutely applaud this. However, our priority is to invest our resources in making sure that all state schools provide an excellent education for their pupils, which in the end will be the greatest means of achieving much higher levels of social mobility, which I know all noble Lords wish to see. Our reforms are particularly focused on poorer children through, for instance, our pupil premium and Ofsted’s focus on the progress that pupil premium pupils make.
Baroness Jones of Whitchurch (Lab)
My Lords, does the Minister agree with Sir Michael Wilshaw that private schools should be doing much more to collaborate with, and support, the state school sector, rather than, as he described it, being guilty of just giving the “crumbs off their tables”?
Baroness Humphreys (LD)
My Lords, I am pleased to hear the Minister agree that we are all anxious to improve the social mobility of pupils. Indeed, the open access scheme purports to do that, but it is a heavily means-tested scheme, which relies on taking the very brightest pupils and the funding that comes with them into the private sector. Does the Minister not agree that this could be a scheme that is tantamount to providing public funding for the independent sector?
Lord Nash
If one had such a scheme, I think there might be ways of avoiding that. I agree entirely that we should be increasing social mobility for all pupils. Although the independent sector does a fantastic job, according to the Sutton Trust, which promotes the open access scheme, its 7% of pupils get 50% of the top jobs. Pupils from grammar schools, which educate 5% of the population, get more than 20% of the top jobs. We are focused on ensuring that the 90% of children who go to other schools, who currently get only somewhere between 25% and 30% of those jobs, get a much higher share of that take in the future.
Lord Howarth of Newport (Lab)
Does the noble Lord agree that, if the parents of the 7% of the nation’s children who attend independent schools were to apply their zeal for educational excellence to the maintained sector, we would see a vast improvement in social cohesion and educational performance?
Lord Forsyth of Drumlean (Con)
Will my noble friend explain why, if the Government are in favour of the money following the pupil and in favour of extending choice, they are not in favour of getting the best value for money and of ensuring that people get the best possible education by making resources available to those who cannot afford to go to independent schools so that they can do so?
Lord Nash
There are plenty of schemes, such as the Buttle UK springboard, which encourage pupils to go to independent schools. Even if we got a third of independent school places occupied by poorer pupils, we would still be dealing with only 2% of the population. We believe that our money is better spent trying to improve the educational chances of the majority of children.
Lord Campbell-Savours (Lab)
My Lords, where do the figures that the noble Lord referred to come from? On what basis was the valuation made, and what was it of?
Lord Dykes (LD)
Does my noble friend agree that, if children from poorer families go to rather grand private schools, they can sometimes have a rather rough time when they first arrive and so on? What measures can the Government encourage those schools to take to make it socially easier for them to integrate?
Lord Nash
I was a trustee of Eastside Young Leaders Academy, which focuses on improving the life chances of black boys in the East End. It has already sent 21 pupils to private schools under full bursaryships. One of our concerns was integration and we spent a lot of time working on that. I know that schools that take pupils from diverse backgrounds work very hard to make sure that the transition works.
Lord Cormack (Con)
My Lords, did not the previous Conservative Government introduce the assisted places scheme and would it not be a very positive thing to reintroduce something similar?
Lord Nash
The assisted places scheme provided valuable support for pupils, who benefited from a place at an independent school, which their parents might not otherwise have been able to afford. The scheme was abolished by the Labour Party in 1998 so that that money could be spent in the state sector. We agree with that sentiment. Our policy is that resources should be targeted at improving state funding for all pupils rather than supporting a minority.
Lord Grocott (Lab)
It is worth reminding ourselves that the abolition of the assisted places scheme so that its money could be used in providing free nursery school education was one of five pledges in the 1997 manifesto of the Labour Party—a small number of pledges—and that partly as a result of those pledges, the Labour Party won the general election with a majority of nearly 200.
Education: Academy Chains
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Baroness Jones of Whitchurch
To ask Her Majesty’s Government what controls are in place on the disbursement of public funds by academy chains to their directors and trustees or private contractors linked to them.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, the relevant rules that academies must abide by are quite clear and have been considerably tightened under this Government. No individual or organisation with a governing relationship to an academy can make a profit; any goods or services delivered by these parties to these academies must be delivered transparently and at no more than cost; and proportionate and fair procurement processes must always be followed. As charities, academies are required to adhere to accounting standards. These require the full disclosure of related-party transactions, and independent auditors check those disclosures every year. Unlike local authority schools, academies produce and publish annual third-party audited accounts.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the noble Lord for that reply and of course I accept that the accounts of these firms are audited. However, is the Minister concerned by reports of excessive sums of taxpayers’ money being paid to academy chain directors for travel, subsistence, consultancy and legal services? Is he also concerned that many of these businesses are employing members of their immediate family to provide services for the academies, and does he accept that academy chains lack the involvement of parents and the local community, which could provide a degree of independent scrutiny and governance for the academies? What more is his department planning to do to get a grip on the situation, which seems to be one of prioritising the expansion of the academies over the protection of public money?
Lord Nash
I stand by my original Answer regarding the rigid regime that academies operate under, and resent any allegation that we do not have a grip of the situation. When we came into the Department for Education in May 2010, we found a department with, frankly, a very poor understanding of value for money. Since then, we have halved the cost of building schools under the previous Government; by 2015 we will have cut the cost of running the department by half in real terms; we have slashed the amount of money spent on sponsored academies from an average of more than £300,000 under the previous Government to under £100,000; and we have substantially tightened the rather loose arrangements that the previous Government had in force in relation to these arrangements. I stand by the results of the academies. Sponsored academies open for three years improve their results by 12% versus 5% at secondary level, and primary converter academies are far more likely than local authority schools to be rated outstanding at their next Ofsted when they have previously been rated good.
Lord Forsyth of Drumlean (Con)
My Lords, did my noble friend have the opportunity over the Christmas Recess to read the interview in the Times given by our noble friend Lord Harris of Peckham about the huge success in transforming the lifetime chances of youngsters in this country? Would a responsible Opposition not be asking why we are not getting value for money like that from local authority schools, which are cheating a generation of those opportunities?
Lord Nash
I entirely share my noble friend’s sentiment. We should be praising philanthropists like my noble friend Lord Harris and encouraging more of them into the academies programme, as we are attempting to do. In 2013 the Audit Commission carried out a survey of annual detected fraud and corruption within local authorities and reported 191 cases of fraud in schools. My department is considering what we can do about improving procedures in local authorities in relation to this.
Lord Foulkes of Cumnock (Lab)
My Lords, what are the arrangements for the trustees and directors of these companies declaring their interests?
Baroness Perry of Southwark (Con)
My Lords, does my noble friend agree that the most important form of accountability is the accountability of the school to its pupils, and their parents, to raise the standards of achievement? The huge success that my noble friend has already described is surely evidence of the success of the accountability that has left academies accountable to their pupils to raise standards.
Lord Whitty (Lab)
In replying to the Question, the Minister was trying to be very reassuring. Does that reassurance extend to a circumstance where a charity or an academy chain, having taken over the running of a school, then decides to dispose of property attached to it? Do the proceeds from that property go back to the school or do they accrue to the academy chain or charity?
Lord Nash
The noble Lord asks a very good question. In just about every case—if I can find other cases that are relevant to this answer, I will identify them for him—the land stays with the local authority, with a 125-year lease to the academy, so the circumstances that the noble Lord refers to are unlikely to apply. Certainly, nothing like what he mentioned could possibly happen without the consent of the Secretary of State.
Lord Edmiston (Con)
My Lords, I declare a personal interest as a sponsor of Grace Academy, which has featured in recent articles. Is the Minister aware that many sponsors have put multiple millions into the academy programme rather than taking funds out?
Lord Nash
I share my noble friend’s sentiment entirely. I am fully aware of that. I am extremely grateful to him for his support of the academy programme and, as I said earlier, we should encourage more philanthropists like him to come into the system, rather than trying to score cheap points against them.
Lord Griffiths of Burry Port (Lab)
My Lords, does the Minister agree that, while there is a full-blooded debate to be had about the relative merits of academies and schools that have some local authority involvement—a debate that I suggest will have its full import when we have rather more evidence from the academies than we have at the moment—it does not do anybody any good to castigate those schools that are not yet academies and whose results are manifestly brilliant and would hold any academy’s results to shame? Can we have some assurance that the language we use is not polarised in a way that damages schools in the public sector?
Baroness Hussein-Ece (LD)
Who are some of these academy chains responsible or accountable to? For example, the Academies Enterprise Trust has grown to the size of a local authority. At least local authorities are accountable to the electorate. Who is AET accountable to when it has more than 60 company directors on more than £60,000 a year?
Lord Peston (Lab)
My Lords, the noble Lord, Lord Forsyth, referred to raising standards for all children. If the schools that the Minister is talking about are so good, why do not any noble Lords opposite send their own children—or more likely, their grandchildren—to those schools, as many of us did, because we felt it was our responsibility to be supportive of local schools?
Lord West of Spithead (Lab)
My Lords, bearing in mind the history curriculum that is taught in academy schools, does the Minister agree with his Secretary of State, who wrote in a recent article that those on the left were unpatriotic?
Ofsted: Annual Report 2012-13
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The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I am delighted that the chief inspector has focused attention on “lucky children”. Although 78% of schools are now good or outstanding—compared to 68% when we came into office—there are still too many unlucky children. Many of them attend schools up and down the country that have been failing for years and which we are now turning into sponsored academies. The performance of sponsored academies far outstrips that of other state schools. For instance, sponsored academies open for three years improved their GCSE results by 12% versus 5% for local authority schools. The Government’s extensive programme of reform is aimed at ensuring that all children are lucky enough to go to a good school.
Baroness Perry of Southwark (Con)
My Lords, I thank my noble friend for that heartening reply. Would he also join me in welcoming the chief inspector’s finding that children’s success in education is determined not by their background but by the quality of the school they attend and that lucky children are simply those who attend good schools? Does this not offer an end to the climate of low expectations for children from disadvantaged backgrounds, which for too long has bedevilled their opportunities?
Lord Nash
My noble friend is quite right. When the new chief inspector came into office, one thing that I thought he did very well was to abolish the appalling low-expectation term “satisfactory” and set much higher expectations for schools. It has clearly been proved through the academies programme and other schools that setting higher expectations for our children does work.
Baroness Massey of Darwen (Lab)
My Lords, the report implies that increased testing of children may improve attainment. Many teachers and educationalists believe and state that excessive testing takes time away from teaching. Do the Government agree?
Lord Nash
Assessment, as opposed to testing, is obviously crucial to ensure effective accountability and to work out whether pupils are making progress, which is an issue that I know Ofsted is very focused on. We have held a public consultation on proposals for key stage 1 assessment, whose results have not been published. As far as key stage 3 tests are concerned, we have no plans to reintroduce key stage 3 tests but we expect all schools to be able to demonstrate to Ofsted, through whatever assessment mechanism they use, that their pupils are making progress.
Lord Sutherland of Houndwood (CB)
My Lords, would the Minister agree that, while the use of the word “lucky” is good shock tactics—and, possibly, good politics—the primary responsibility of Government, and all of us who are involved in education, is to improve the quality of schools and teaching and to take luck completely out of the picture?
The Lord Bishop of Ripon and Leeds
My Lords, in view of the difficulties often experienced in recruiting governors for schools, especially but not only in disadvantaged areas, what more can the Government do to encourage people to take on that role and to reduce the bureaucratic pressures that governors so often face?
Lord Nash
The right reverend Prelate is quite right to focus on governance. I put that right at the top of my agenda when I came into office because it seems to me that, whether a school is maintained by a local authority or is an academy, the key decisions are often made by the governing body, so we need to raise the quality of governance. Last year, we focused governors’ responsibility on three key functions: on setting the school’s strategy and vision; on holding the head teacher to account for pupils’ progression and for the performance management of the staff; and on money. It is important to focus governors on a limited number of tasks, but we are also dramatically beefing up recruitment, including by working with business to recruit more business governors.
Baroness Garden of Frognal (LD)
My Lords, the chief inspector highlights as a key challenge that pupils do not see English and other school subjects as relevant to their daily lives. Would the Minister agree that lucky children are those who have early exposure to the world of work and make the link between lessons and future aspirations? If so, what steps are the Government taking to support and enhance careers advice throughout primary and secondary schooling?
Lord Nash
I agree with my noble friend that this is very important. It is essential that schools work closely and engage with their local businesses. Many excellent models are emerging up and down the country—I am continually coming across new ones—including: the Business in the Community business class, which aims to work with 500 schools; the Ahead Partnership in Leeds, which runs a very good organisation called “Make the Grade” that builds partnerships between businesses and schools; and Inspiring the Future as well as a number of other models that are emerging. All schools should allow their pupils a window on work through engagement with their local business communities.
Baroness Morgan of Huyton (Lab)
My Lords, the progress of schools in London, particularly sponsored academies, was particularly marked in the report. What lessons will the Government take from the London experience of introducing sponsored academies with very strong leadership, good teaching and strong governance, also backed up by the framework of the London Challenge? I draw attention to my entries in the register.
Lord Nash
The noble Baroness makes a good point, and I am grateful to her for her work as chair of Ofsted. There are two lessons from the point she made. One is that school-to-school support is the key model. We are focusing the academy programme on a regional, school-to-school cluster basis—whether that involves national chains operating regionally or local schools supporting local schools. Those are the absolute key things that we learn from the London Challenge and the academy focus. It has to be done on a local basis.
Baroness Hughes of Stretford (Lab)
My Lords, at the same time as publishing his report the inspector also said that grammar schools are acting as a brake on social mobility and there should be no more of them. Do the Government agree with that as well?
Children and Families Bill
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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.
“( ) 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;”
“( ) 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.
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.
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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.
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.
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.
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.
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.
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.
“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.”
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.
“( ) 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”.”
“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.
Children and Families Bill
Lord Nash Excerpts(10 years, 5 months ago)
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Baroness Hughes of Stretford
My Lords, I shall briefly, but strongly, support both amendments. On Amendment 34A, the noble Baroness, Lady Howe, has fully explained her concerns, which I share, about the possible consequences of allowing specialist SEN academies to admit children without an ECH plan. That seems to run counter to the principle of inclusion and it also seems dangerous to admit children without that comprehensive assessment of their specific needs. I hope that the Minister will respond positively to that point.
When the noble Lord, Lord Low, moved Amendment 16A in Committee, he rightly said that although the code of practice had improved guidance on inclusion, in the Bill as it stands, inclusion is not referred to anywhere. Given the commitment of the Government and of noble Lords across this House to increase access to mainstream schools and to act in accordance with the recommendations of the JCHR, it seems very odd that this overarching principle is not enshrined in the legislation.
The purpose of the amendment is to insert that general principle alongside other general principles that are included in the Bill. As the noble Baroness, Lady Warnock, has said, this is not about pushing inclusion above everything else; it is about parental choice. At the moment, because local authorities and schools have not moved far enough towards making mainstream schools accessible to disabled children, many children are denied that choice.
Clause 19 sets out other key principles to which local authorities must have regard in fulfilling their obligations under Part 3: the wishes and feelings of children and their parents; the importance of child and family participation in decisions; providing adequate information; and supporting the child’s development and educational progress. Those are all very important. But equally important, I would argue, is the principle that local authorities should seek to maximise the opportunities for inclusion.
As the noble Lord, Lord Low, told us, when the Minister was arguing against the amendment in Committee, he said that the Bill maintained the general principle of inclusion in a number of other provisions and went on to list some of them. He also said that schools and colleges had important duties under the Equality Act and he told us about other measures that the Government were adopting to help mainstream schools improve their ability to include disabled children more effectively. However, he did not tell us why the Government would not accept this amendment alongside the other general principles that appear on the face of the Bill. If the Minister is not minded to accept the amendment today, I hope that he will not rehearse that information as we have already heard it and it is on the record. What we really want to know is why he will not accept the general principle of inclusion sitting alongside the other principles in Clause 19. That would send a strong signal to all educational settings, and to local authorities, that they must up their game and move closer and faster to being able to offer places to disabled children. That would catalyse a very positive and marked shift. I hope that the Minister will accept the amendment today.
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
I thank the noble Lord, Lord Low, and the noble Baronesses, Lady Warnock and Lady Wilkins, for tabling Amendment 16A, and the noble Baroness, Lady Howe, for tabling Amendment 34A. I had an extremely helpful meeting with the noble Lord, Lord Low, and the noble Baronesses, Lady Howe and Lady Wilkins, recently, and I am grateful to them for helping me to understand these issues. As noble Lords know, they are, of course, immensely knowledgeable on this matter. They have spoken eloquently about an issue that I know is important to many in this House—inclusive provision for children and young people who have SEN or are disabled. We have had an informed and passionate debate.
Amendment 16A picks up a recommendation from the Joint Committee on Human Rights, as the noble Baroness, Lady Lister, a member of the committee, mentioned. The Joint Committee welcomed the Bill as containing,
“a number of provisions which … enhance the UK’s implementation of some of the relevant rights of children and young people”.
Those include the general principles in Clause 19; the extension of education, health and care plans to young people up to 25; the requirement for academies to be covered directly by the statutory framework for SEN; the duty to provide SEN information to children and young people; the measures to ease transition from children’s to adult services; the explicit reference to assist in preparation for independent living in a local offer; and the provision of direct rights of appeal for young people and the proposed piloting of children’s rights of appeal. However, the Joint Committee felt that including a principle on inclusive provision in Clause 19 would demonstrate the Government’s commitment, under the UN Convention on the Rights of Persons with Disabilities, to the progressive realisation of the right to inclusive education.
I make it clear at the outset that the Government are fulfilling their commitments under the UN convention. The Bill maintains the general principle of inclusion and does so through some of its key provisions. It places duties on schools and colleges to use their best endeavours to ensure that those with SEN get the support they need and holds a presumption for inclusion in relation to choice of schools and colleges through Clause 33. However, it also recognises that children and young people have different needs and different preferences for where they wish to be educated, including specialist settings such as special schools and independent specialist colleges. That is entirely consistent with the reservation and interpretative declaration that the Government made to Article 24 of the UN convention recognising special schools as part of the general schools system.
Beyond the Bill, as we have discussed in previous debates, local authorities, schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to increase access over time and to make reasonable adjustments to their policies and practices. Indeed, it was this Government, in 2012, who included schools in the provision of auxiliary aids and services, such as specialised computer programmes, sign language interpreters and hoists, within the reasonable adjustments duty under the Equality Act. I made a commitment in Grand Committee to look at the scope for improving the links to the Equality Act duties in the SEN code of practice and I am happy to reaffirm that commitment now.
We have previously discussed the inclusive schooling guidance. One of the striking findings in the responses to the Green Paper Support and Aspiration was that nearly half of those who responded to a question about the guidance did not know that it existed. That is why we put the key elements of it into the code of practice. I am happy to consider how the code of practice can be further improved in that regard. In view of all that, we do not believe that it is necessary to add to the principles in Clause 19 to fulfil our commitments under the UN convention. The principles in Clause 19 are designed to underpin the key features of the reforms, placing the views, wishes and feelings of children, young people and parents at the heart of the system and placing a focus on improving outcomes. They apply irrespective of where children and young people are educated.
We have heard in other debates about the important role that specialist provision plays in supporting disabled children and young people and those with SEN. The noble Lord, Lord Low, referred to the importance to parents of having that choice. Amendment 16A could run the risk of being perceived as a threat to specialist provision and as encouragement to local authorities not to place children and young people in specialist provision where that is appropriate for meeting their needs and where parents wish it, and could threaten the viability of high-quality provision for children and young people with SEN. I know that that is not in any way the purpose of the amendment, but it is an example of the kind of balance of arguments that we have to weigh.
The Government take very seriously their commitment to the convention. In addition to the provisions in the Bill and the government amendments on disabled children and young people that we will be debating later, we have taken a number of practical steps to build the capacity of mainstream schools and colleges to support children and young people who have SEN or are disabled. I spoke about these in Grand Committee. The noble Lord, Lord Low, referred to them as “soft measures”, but I would not describe them as such. They are certainly extensive. I will not go through them in detail, because I know that noble Lords have heard this before. However, we have invested considerable sums of money in training: there are over 10,000 new SEN co-ordinators, a number of schemes to develop the training of SEN, we have made grants to the Institute of Education, and we are involved in many other projects.
Chapter 6 of the draft SEN code of practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need additional support and provide that support as quickly as possible. We make it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and we recognise the key role played by the SEN co-ordinator in this and in other ways. In addition, as noble Lords know, the Bill now includes a new clause on supporting children with health conditions. Noble Lords will see that a number of government amendments have now been tabled to include disabled children and young people with SEN in the scope of a number of key provisions in the Bill. I will speak about those amendments shortly.
On Amendment 34A, tabled by the noble Baroness, Lady Howe, I understand her concerns and those of other noble Lords about the provisions in Clause 34(9), but I hope to reassure them. Clause 34(9) would enable a child or young person with special educational needs but without an EHC plan to be admitted to an individual special academy or special post-16 academy whose academy arrangements permit this. The admission of children or young people without EHC plans to special academies or special post-16 academies would be limited to those academies where the Secretary of State for Education had specifically agreed to permit that in the funding agreement in relation to specific types of children.
I reiterate what I said when we debated this issue in Committee. This is not a blanket policy and it is also definitely not part of any dark plan. On the contrary, the Government’s intention is to facilitate innovative new approaches and provision for the benefit of children and young people with SEN. The Secretary of State would look carefully at the detail of any proposal made by a special academy or special post-16 academy and would consider its educational merits and viability. Indeed, we have approved 16 free special schools. All are able, as things stand, to apply to the Secretary of State to have the competence within their funding agreements to admit non-statemented pupils. That is the status quo. Only one has so applied. They were approved to admit, on a temporary basis only, children with autistic spectrum disorder or with specific communication and language difficulties, but as far as we know none has been so admitted.
Concerns have been expressed by the noble Lord, Lord Low, the noble Baroness, Lady Howe, and others that children and young people might be forced into special provision and parents coerced by local authorities into placing their children in special schools. We will ensure safeguards against that are in place. First, the relevant academy’s funding agreement must stipulate that the special academy or special post-16 academy could admit only children or young people without plans who had a particular type of SEN set out in the agreement. Changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority and by parents, and a lack of demand for statemented places could be demonstrated. Secondly, such a child or young person would be admitted to the academy only if their parents or the young person had applied to go to it. Thirdly, the child or young person should have those particular needs and their admission should be supported by a relevant professional opinion, such as that of an educational psychologist. Of course, parents of young people will continue to have the right to ask for a statutory assessment of their child’s needs to be undertaken and a right of appeal to the tribunal if the local authority decides not to carry one out. The academy would also have to adopt fair practices for such admissions in line with the principles of the school admission code. We would take very seriously indeed any instances where these freedoms were being abused. Very significantly, the new secondary accountability, the best eight progress measures, will become the main measure by which we assess the performance of all maintained schools and academies. This new approach will strip away the previous perverse incentives and will hold schools to account for the progress made by all their pupils, not just blunt measures of absolute attainment at grade C. This will move schools that have focused too much on those pupils who can achieve a C grade to focus on the progress of all their pupils and should particularly benefit SEN pupils in those schools.
Baroness Hughes of Stretford
My Lords, Amendment 17 would, for the purposes of Sections 22, 24, 25, 26, 27, 30, 32 and 62 of Part 3, include children with a disability under the Equality Act. It would interpret children and young people with SEN to include children and young people with a disability as well. The Government have tabled a number of amendments, I think, to achieve the same thing.
I will be very brief as this is not now contentious, given that the Government have moved on the issue, but my amendment would ensure that key clauses that relate to identifying children with needs, duties of the health authority, joint commissioning arrangements, the duty to keep provision under review, the local offer, advice and information for parents and so on would all now apply equally to disabled children without a special educational need under the terms of the Equality Act. This is important, not only in principle, but also in its practical effects, particularly for the local offer, which we will debate later on Report. The local offer is particularly important for children with a disability but without a special educational need because that is now to be the only way in which they can get services that they and their families need. It is very important for the local offer, particularly Clause 26 on the joint commissioning arrangements between health education and social care. When they are looking at what is needed in an area they will have to take into account the needs of all children with a disability, including those without a special educational need, which was not the case under the Bill as it was drafted.
I very much welcome the Government’s concession here, as far as it goes. The Minister knows that I would have preferred to have an amendment to apply the whole of Part 3 to children with a disability as well. That would have achieved a truly inclusive, integrated and comprehensive system for all disabled children, whatever their disability and whatever the extent of their need. Many feel that this was the promise of the Green Paper. However, we have come part way and that is to be welcomed.
Turning to the government amendments, I think that my Amendment 17 has the advantage of being completely comprehensible when you read it, but the 40-odd government amendments are not so easily understood. I understand that it has been done in this way to achieve a more comprehensive effect and I look forward to the Minister explaining that. I beg to move.
Lord Nash
My Lords, it may be helpful if I outline our government amendments in this group to enable noble Lords to have a debate if they wish to. In Grand Committee we had an extensive debate about the support for disabled children and young people and I know that this is an issue on which the noble Baroness, Lady Hughes, has reflected deeply, as have I since then. Many Peers expressed concern that disabled children and young people without SEN would miss out on the benefit of our reforms and, at the time of the debate, I introduced a government amendment to require schools to make arrangements for supporting children with medical needs. I also asked for help from noble Lords in understanding which groups of disabled children would not be supported by this Bill, the government amendment in respect of children with medical needs, the provisions of the Equality Act 2010 and Part 3 of the National Health Service Act 2006.
Following the debate, the Every Disabled Child Matters campaign sent some very helpful advice to the department in which it said:
“The Government rightly made the point in the debate yesterday that disabled children and young people are already protected by a range of other legislation, such as the Equality Act 2010, the NHS Act 2006 and the Children Act 1989.
We would like to stress that our concern is not about the rights of individual children and young people who may have a disability but no SEN. We completely accept that on an individual level they are protected under the Equality Act 2010 and other legislation. Our concern is about disabled children and young people as a group not being included in the joint commissioning arrangements, review functions, and local offer duty”.
It went on to suggest which clauses in the Bill might be amended to achieve this—Clauses 22, 24, 25, 26, 27, 30 and 32—and drafted a single amendment to deliver this. I am grateful to the noble Baronesses, Lady Hughes of Stretford and Lady Jones of Whitchurch, for their amendment, which is largely based on the Every Disabled Child Matters amendment.
We agree with Every Disabled Child Matters that the clauses identified should be amended. However, our view is that, by relating the provision for disabled children and the young people to special educational provision, a single amendment would not deliver the outcome that we all want, and that we need to amend each clause.
Clause 22 would be amended to require local authorities to exercise their functions with a view to identifying both the children and young people with SEN and disabled children and young people. Clause 24 would be extended to require health bodies to inform the child’s parents and their local authority where they are of the opinion that a child under compulsory school age has, or probably has, a disability. Clause 25 would now require local authorities to 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 that this would promote their well-being, including in relation to their participation in education, training and recreation. In Clause 26, the duties on local authorities and their partner commissioning bodies to make joint arrangements for the commissioning of education, health and care provision for children and young people with SEN would be amended to include disabled children and young people.
Clause 27, which currently requires local authorities to keep under review the special educational provision and social care provision for those with SEN, would be extended to cover provision for disabled children and young people. They will broaden it to cover all education and training provision, not just special educational provision, for children and young people who have SEN or are disabled.
The amendments also require local authorities to consult disabled children and young people and their parents when carrying out that duty. The provisions in the local offer would include disabled children and young people, both in relation to the information to be published and in developing and reviewing the local offer and publishing comments. In Clause 32, the requirement on local authorities to arrange for young people with SEN and parents of children with SEN to receive advice and information on SEN would be extended to include provision 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. Clause 73 would make it clear that the definition of disability applied to the provisions covered by these government amendments is that in the Equality Act 2010.
Noble Lords will also be aware from commitments that I made in Committee that we are looking at ways of strengthening links to the Equality Act duties, including those to make reasonable adjustments in the SEN code of practice. The amendments that I am speaking to today will sharpen the focus on the Equality Act duties considerably. Since the code of practice is statutory, the guidance that it provides cannot be ignored. I will respond to the debate in the normal way in due course but I hope that noble Lords are reassured by these amendments.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his explanation and I beg leave to withdraw the amendment.
Baroness Jones of Whitchurch (Lab)
My Lords, I support Amendment 18C and very much echo the arguments put forward by my noble friend Lady Wilkins and other noble Lords in this short debate.
Clause 22 already sets out that it is a requirement on local authorities to identify all children in their area with SEN. The Government obviously intend this data gathering to take place and this work to be done; otherwise they would not have put this in the Bill. It therefore needs to be collected and collated in an organised and effective way. It cannot be argued that it is an extra administrative burden when the basic requirement for the information to be gathered is already in the Bill. Noble Lords have raised genuine concerns about the quality of data in the past and the challenge of improving that quality in the future. I would also like to ask the Minister how the Government, if they think that it is important for the information to be collected, intend to make sure that the quality is delivered so that a proper planning process can take place. Obviously, it is necessary to have this information as a precursor to planning service delivery for all those people with SEN in local authorities.
The amendment is partially about transparency. It is about making sure that the data are not only collected but shared in an appropriate way so that they help both planners and service users to have a more informed input into the local offer and help devise better services in the future. The data might also have the advantage of providing isolated families with the knowledge of how many other families, children and young people in their area share a similar type of SEN or disability, which may help to bring people together.
The amendment is very much in the spirit and intent of the local offer, which is designed to help parents, children and young people shape services for the future. That is part of an ongoing debate that we have been having. The data collection and the quality of that data are crucial to help make this happen. Therefore, I hope that the Minister will see the wisdom in the amendment and will be able to support it.
Lord Nash
My Lords, I would like to thank the noble Baroness, Lady Wilkins, for raising this important issue and noble Lords who have spoken on this matter. I accept noble Lords’ concerns on this. I understand that the noble Baroness’s purpose behind tabling the amendment is to put, as the noble Baroness, Lady Howarth, has said, local authorities and schools in a better position to make good commissioning decisions. Good commissioning is clearly an important underpinning to the reforms that we are making and the Bill already provides for joint commissioning arrangements across education, health and care for the provision that is reasonably required for local children and young people with SEN. That commissioning will be informed by the local joint strategic needs assessment and the data that are already available on these children and young people.
I accept absolutely that good data need to be available to inform commissioning, but I do not think that the local offer is the right place to publish that data. The purpose of the local offer is to set out what provision children, young people and families can expect in their local areas and it is to be used as a vehicle for discussion about the development of local services. It is not designed to publish information on the numbers of children and young people in the area with different types of SEN. It would not be appropriate to clutter up the local offer with such data. We accept that that information will be material to discussions about the development of provision in the local area, but that information is available elsewhere.
The department already collects data from schools and local authorities on the number of children with special educational needs and publishes this annually on the department’s website. This includes data about the number of children by type of special educational need and we will be expanding this information. At present, we publish data by type of need for children at school action plus and with SEN statements. However, as we move to the new system for school-based SEN support, we will also publish data by type of need for children who are currently at school action.
For disabled children, local authorities are already under a duty to maintain a register of disabled children and young people under Section 17 of, and Schedule 2 to, the Children Act 1989. The draft, new SEN code of practice reminds local authorities of that duty. The department also collects data on children in the early years through the early years census. For post-16, the Education Funding Agency and the Skills Funding Agency also collect data on young people in the further education sector, through the individualised learner record on a range of types of need. Requiring local authorities to publish this data in the local offer would just replicate data that is already available.
So far as bringing together these different data sets into one place is concerned, as I said, I do not believe that the local offer is the appropriate place to do this, and I do not think it is right that central government should impose on local authorities something that they should already be doing. Some local authorities may well be poor at carrying out their duties in this regard, but that is not a legislative issue: it is a matter of practice. We have made it clear in the code that local authorities have this duty.
The noble Lord, Lord Low, talked about incomplete data. It is true that SEN data from the early years census, although available on request, is not routinely published publicly, but we will make sure in future that it will be and will be linked up to the main SEN statistical publication. I assure noble Lords that the department is thinking about what the new arrangements in the Bill imply for data collection and we are seeing where there are possibilities for greater clarity and the joining up of data sets. The post-16 data that are collected by the department, the Education Funding Agency and the Skills Funding Agency are publicly available on a number of websites, and we are looking at ways to bring these together for greater clarity.
Indeed, more generally, we are looking to see how data can be brought together to reflect the new nought to 25 arrangements under the Bill. We will also consider whether there should be a collection of disability data from schools. I would be happy to discuss this further with the noble Baroness and any other noble Lords who are interested. On that basis, I ask the noble Baroness to withdraw her amendment.
Baroness Wilkins
My Lords, I thank the Minister for that reply. Unfortunately, agreement has not continued from previous amendments. I thank all other noble Lords who contributed to this debate, but I find the Minister's reply extremely disappointing. He said that the local offer was not the place to put this information and that it would be cluttered up by it. But he then went on to enumerate various forms of collection of the data which fail to recognise that it is the quality of the data that are collected that is so criticised at the moment: it is failing to provide its purpose. It seems key that, without reliable data, local authorities will not be able to commission the services that are needed.
I will read what the Minister has said in Hansard and consider this further. As I said, I am disappointed in his reply, but, for the moment, I beg leave to withdraw the amendment.
(a) ”
(i) ”
Schools Careers Service: Apprenticeships
Lord Nash Excerpts(10 years, 5 months ago)
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Baroness Bakewell
To ask Her Majesty’s Government what steps they are taking to ensure that career services in schools make pupils fully aware of apprenticeship opportunities open to them.
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, schools are legally required to secure independent careers guidance for 12 to 18 year-olds, and that includes information on all education and training options, including apprenticeships. We will publish revised statutory guidance to help schools deliver better support to pupils, including about apprenticeships. Young people are most likely to be influenced by hearing directly from employers and apprentices. We will be strengthening the importance of partnerships between schools and businesses via the National Careers Service. Ofsted is ensuring that careers guidance and pupil destinations will be given greater priority in inspections.
Baroness Bakewell (Lab)
My Lords, I thank the noble Lord for that Answer, but given that the House of Commons Business, Innovation and Skills Committee report of 2012-13 found that,
“awareness and resources in schools and colleges remains lacking”,
expressed disappointment with the National Apprenticeship Service and recommended that the NAS should be given statutory responsibility for raising awareness of apprenticeships, can he explain how far these recommendations have been carried out?
Lord Nash
The National Apprenticeship Service funds the Education and Employers Taskforce, which is a programme to deliver knowledge about apprenticeships to schools. We also had 70 advisers from the National Careers Service and Jobcentre Plus stationed at the Skills Show in November. The National Careers Service and the National Apprenticeship Service ran a jobs bus road show, and we are pursuing a number of other measures in this area.
Baroness O'Cathain (Con)
My Lords, is my noble friend aware of the huge amount of work going on in the area of apprenticeships? Sub-Committee B of the European Union Committee is taking evidence on youth unemployment at the moment, and the great finding is that many large companies are actively getting involved in apprenticeships for the first time in many years. We have heard about some outstanding examples of this, and when our report comes out I think that he might be surprised.
Lord Nash
I am grateful for my noble friend’s comment. Our priority is to expand apprenticeships, particularly where they deliver the greatest benefits to young people, are of high quality, last longer and are more rigorous. Of course, since this Government came into power, we have delivered 1.5 million new apprenticeships.
Lord Young of Norwood Green (Lab)
My Lords, is the noble Lord aware that, when I speak to young people in a wide variety of secondary schools as part of the House of Lords outreach scheme, there is little or no knowledge of 16-to-18 apprenticeships, and that schools are focused on sixth form recruitment? What action are the Government taking to ensure that all secondary schools offer impartial guidance, have links with local businesses, and invite young apprentices to speak to pupils?
Lord Nash
I agree entirely with the noble Lord that links between schools and businesses are key. Schools can no longer feel that they need just to teach; they have to open their doors to businesses, and businesses have to engage with them. In my travels around the country, I have not found any difficulty with businesses wanting to engage with schools; it is usually a question of putting in place the structures. The organisation Business in the Community has a marvellous programme called Business Class which is providing careers advice, mentoring and workplace experience to 300 groups of schools. There is the Glass Academy in Sheffield and a number of other such models. However, we need to widen these efforts, and I know that the Social Mobility and Child Poverty Commission made some excellent recommendations in this area a couple of months ago.
Baroness Howe of Idlicote (CB)
My Lords, will the Minister confirm the steps that I am sure the Government must be taking to ensure that as many girls as boys are aware of these apprenticeship schemes, particularly in engineering, where there are certainly very many more young boys than young girls taking up these apprenticeships at the moment?
Lord Nash
I entirely agree with the noble Baroness. It is very important that we get a higher participation rate of girls in STEM subjects. We are funding the Stimulating Physics Network and the Further Maths Support Programme to increase the take-up of A-level physics. The STEM Ambassadors programme gives careers advice on more technical qualifications and apprenticeships. However, as my colleague Liz Truss said recently, it is excellent teaching and a culture of equal aspirations for all that will help engage more girls, so all we are doing to improve the quality of teaching helps in this regard.
Lord Addington (LD)
My Lords, can my noble friend assure me that a teacher or careers adviser will be able to advise a dyslexic pupil in a one-to-one interview that he or she can now access, or will soon be able to access, the apprenticeship system, as the barriers to dyslexics getting through the functional skills test in English and maths will be removed?
Lord Nash
My noble friend speaks with great passion and personal experience on this subject; I have heard him do so many times, and we have already met on this subject. The Government are aware of the technical issues with assisted technology in the English and maths assessments. We are meeting the British Dyslexia Association, Ofqual and the Dyslexia Trust to try to ensure that we send a very clear message to all involved, providers and examiners, that there is the ability to use screen readers, in the case of dyslexia, as well as other assistive technology. I think that my noble friend knows that he has my personal commitment —if he does not know, I give it to him now—that we will do as much as we can to sort this out.
Baroness Wall of New Barnet (Lab)
My Lords, in response to my noble friend’s earlier question, the Minister said that it was really down to employers to do more work. Is he aware that employers try very hard to be in touch with schools, but that there is an issue around head teachers, in particular, encouraging that? As my noble friend Lord Young said, rather than aiming primarily for academic qualifications, this country needs very good apprentices; we need women apprentices, as the noble Baroness, Lady Howe, said, but we also need people to get engaged with apprenticeships and be encouraged to do so. That is not evident.
Lord Nash
I am sorry to hear the noble Baroness make that comment. I think that it is a two-way street. We need schools willingly to engage with all walks of business for all apprenticeships, but I still hear shocking stories about schools being reluctant to send their pupils on them and heads being too focused inwardly. They cannot give their children a good education unless they give them a direct line of sight. I have been so impressed talking to young people about how the experience of going to the workplace and meeting people in work has raised their aspirations. From this they have managed to reverse-engineer backwards what they need to do to achieve this themselves.
Children and Families Bill
Lord Nash Excerpts(10 years, 5 months ago)
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“Contact between prescribed persons and adopted person’s relatives
(1) In section 98 of the Adoption and Children Act 2002 (pre-commencement adoptions: information), after subsection (1) insert—
“(1A) Regulations under section 9 may make provision for the purpose of facilitating contact between persons with a prescribed relationship to a person adopted before the appointed day and that person’s relatives.”
(2) In each of subsections (2) and (3) of that section, for “that purpose” substitute “a purpose within subsection (1) or (1A)”.
(3) In subsection (7) of that section, after the definition of “appointed day” insert—
““prescribed” means prescribed by regulations under section 9;”.”
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I am delighted to be starting the Report stage of the Children and Families Bill. I know that we are all hoping to make significant progress through the Bill this afternoon and evening, but before I speak to my first amendment, I hope noble Lords will allow me to share a few words of thanks.
We had some very good debates in Committee over 12 days and I am extremely grateful to all noble Lords who contributed to those debates and to those who came to the many meetings we had during Committee and since on specific issues. I found the debates and those meetings extremely helpful, and I have tried hard on those relatively few matters where we do not have a consensus really to understand both sides of the argument. I am grateful for the patience and expertise of all noble Lords who have taken time to talk to me and I have shared those discussions with my right honourable friend the Secretary of State for Education and my honourable friend the Minister for Children and Families—noble Lords will realise, I am sure, that they have been supporting me on a learning curve which has been, at times, almost vertical.
I am also grateful to noble Lords for tolerating the large volume of paper that I and the Bill team have been sending their way. Some people have been kind enough to say that our meetings and correspondence have been helpful, and I very much hope that has truly been the case. We have now shared improved indicative statutory guidance on adoption, sibling contact for children in care, care leavers’ access to records and support for care leavers aged between 21 and 24 who are not in education, training or employment. We have also shared information on new regulations and guidance on support for trafficked children. Copies of that information are in the Printed Paper Office if noble Lords do not already have them. Some of the guidance addresses issues that we will continue to discuss today; in other areas, I am pleased that we have been able already to make progress towards addressing the issues that your Lordships have raised.
A number of noble Lords were kind enough to join me in a discussion with our new chief social worker, Isabelle Trowler. Isabelle was inspirational in her account of the reforms she is helping the Government to drive to improve the confidence, professional skills and quality of social workers. Achieving that will do more than any primary or secondary legislation or statutory guidance can do on its own to secure the step change we all want to see in support for our most vulnerable children.
There are also some issues on which we have been persuaded that legislation is the answer. Noble Lords will see further evidence of this when I table amendments to Part 3 of the Bill later this week. If we proceed at pace tonight, we will be able to speak about the Government’s commitment to use this Bill to legislate on “staying put” arrangements for care leavers in foster care.
Returning to the matter in hand, however, let me thank my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss, for helping me to understand the initially confusing issue of access to intermediary services for the descendants of adopted people. There was one debate in Committee in which I felt we were operating in two completely parallel universes and there was also a moment in the debate when I felt there was an anomaly which could not possibly be as simple and straightforward as was being proposed. However, on investigation afterwards and following an extremely helpful meeting with my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and a number of people who are experts in the field, it became clear that there was an anomaly that we needed to rectify. I am therefore delighted to be putting forward an amendment today that addresses this.
Under the current law as it applies to adoptions that took place before 30 December 2005, both the adopted person and the adopted person’s birth relatives are able to make use of an intermediary service to facilitate contact between them, but the children of the adopted person are not able to do so. My noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss, have set out very clearly that this anomaly leaves a number of people in the dark about their family history. The proposed new clause will correct this anomaly. It will enable regulations to be made that will extend access to intermediary services to those who have a prescribed relationship with the adopted person. I should be clear that the reason that the proposed new clause does not apply to adoptions that took place after 30 December 2005 is because information about these adoptions is held and accessible under a different legal framework, which does not distinguish between descendants and other relatives.
Noble Lords may wonder why the wording of the new clause refers to “persons with a prescribed relationship” rather than “descendants”. Were we to put “descendants” on the face of the Bill, we believe that the extended access would be limited to children and grandchildren of the adopted person. While it is our intention that the regulations will, at a minimum, include the children and grandchildren of the adopted person, we also wish to consult on whether it is appropriate for others, such as spouses and siblings of the adopted person, to be able to access the same services.
With the help of my noble friend Lady Hamwee, the Government have explored the implications of this reform with the Law Commission and the British Association for Adoption and Fostering and are confident that this new clause will close the current gap in the law. I hope that your Lordships agree that this amendment is necessary and I urge noble Lords to accept it. I thank again my noble friend Lady Hamwee and the noble and learned Baroness, Lady Butler-Sloss, for bringing this important matter to our attention. I am very glad to be able to rectify the problem. I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I declare an interest at the beginning of the Report stage as a governor of Coram and as a patron of, among others, BAAF, PAC and Childhood First.
I start by saying that I think that this is a good Bill, though it needs some improvements. What is absolutely splendid is that in certain places the Minister has listened with great care and, like the noble Baroness, Lady Hamwee, I am extremely grateful to him, not only for a number of very useful meetings on this particular amendment and indeed others, but also for the outcome. I am really very grateful indeed and look forward to that being a source of relief to a number of families.
Baroness Jones of Whitchurch (Lab)
My Lords, I speak in favour of Amendment 2, to which my name has been added, and very much support the arguments that the noble and learned Baroness, Lady Butler-Sloss, has put forward this afternoon.
Noble Lords who were in Committee will recall that we debated this in depth. It is fair to say that there was widespread sympathy for the point of view that the noble and learned Baroness has put forward this afternoon. There was a sense that we wanted to get the balance right—not overstating their importance, but recognising that ethnicity, culture, language and heritage are all factors that make up a child’s identity, which any prospective adopter should be able to respect and value. The challenge for us is how to get it right and achieve that.
The noble and learned Baroness, Lady Butler-Sloss, explained that this issue was dealt with in some detail by the adoption pre-legislative scrutiny committee last year, which took evidence from a number of the major players in the adoption sector, including Coram and Barnardo’s. We continue to believe that that is an authoritative piece of work. While no one wants children to be disadvantaged by delays being caused by the search for the perfect match, the evidence of the adoption committee seemed to show that while there are some pockets of poor practice, it is no longer a widespread issue. For example, Barnardo’s believed that the current legislation was adequate and Coram argued that while this might have been a problem in the past, the situation was improving rapidly. The committee also identified that there were several other factors affecting the placement of BME children, including having fewer prospective adopters and a failure by social workers to promote their availability. The truth is that there remains a paucity of evidence that BME children are waiting longer for placements because of the current wording on ethnicity.
In his response in Committee, the Minister referred to two pieces of research, which I have now had a chance to look at. The first is by Julie Selwyn and commenced in 2005, which is some time ago. Even so, the study did not find systematic bias or mishandling of minority ethnic children by children’s services. The second piece of research, which was by Professor Elaine Farmer, was also carried out some time ago. It commenced in 2007. It was also interesting reading, but it covered a limited sample and, as she acknowledged, it was impossible to draw definitive findings because local authority practice was changing at the very time that the research was taking place. I believe that the latest research carried out by the adoption Select Committee is probably a better reflection of what is currently happening in adoption practice rather than research carried out six or seven years ago.
While there is, no doubt, scope for further definitive research, we should in the mean time be cautious about driving major change in this area. This is why we believe that putting these factors in the welfare checklist along with other considerations strikes the right and proportionate balance in addressing this issue. It would require agencies to have regard to these factors, but they would not be paramount.
The Minister argued that, if references to ethnicity and culture were removed, they would nevertheless remain as a silent, unspoken part of the children’s characteristics and would still need to be taken into account. A similar argument was put forward by the noble Baroness, Lady Hamwee, in her amendment. The Minister also referred to the fact that indicative statutory guidance is being prepared, which we welcome. But putting those two things together, I do not think they are good enough. By removing the references to ethnicity, religion, culture and language from the Bill, the Government plan to send a deliberate message to courts and social workers. Why else would they do it? We believe that that message is disproportionate and misguided and will be interpreted in the wrong way.
As we discussed in Committee, any change in the law in this area would also be in direct contradiction to the UN Convention on the Rights of the Child, and in particular Article 20, which states:
“Children who cannot be looked after by their own family have a right to special care and must be looked after properly by people who respect their ethnic group, religion, culture and language”.
I am very grateful to my noble friend Lady Lister for updating us on the continued concerns of the Joint Committee on Human Rights in this regard. We continue to share those concerns. We think it is important that parents understand the identity of the child and are able to help them feel at ease with that identity. We cannot be blind or neutral to these considerations.
For all these reasons, we urge the Government, even at this stage, to agree to the amendment. We all want what is in the best interests of the child, which in this case is to have their identity respected and nurtured. We believe that our amendment sends the right message to the sector, building on their developing good practice and helping to speed up placements. I therefore urge noble Lords to support the amendment.
Lord Nash
My Lords, it seems ironic that, on a day when we have been paying tribute to probably the greatest force for racial reconciliation ever, we are having a debate about a matter relating to race. However, I am encouraged by today’s debate. It is absolutely clear that we are really not very far apart; we are all trying to achieve the same thing—the question is just how. Perhaps I could try and outline, at some length if I may, how I and the Government see the matter, our motivation, and where I believe there is considerable common ground.
The fact is that it takes two years and seven months for a child from entering the care system to be formally adopted, but for a black child it is 13 months longer—nearly four years. It takes one year and seven months for a child to be placed with his or her proposed adopters, but for a black child it takes 13 months, or 70%, longer. Of course, this conceals the fact that many children never get adopted. This is completely unacceptable and upsets me now as much as it did when I first heard about it three and a half years ago. This is not a question of the pendulum having swung too far. The pendulum has swung off the scale.
I have since I started working with children and young people felt very strongly that we need to ensure not just that the life chances of all young children are substantially improved but particularly those of the BME community, and in particular the black community, because it seems to me that we need more successful black people and more successful black role models. It defines our society to have a balance of successful people. I look forward greatly to the day when there are many more Baroness Youngs and Baroness Benjamins. Although I was scribbling some of the time, I think I agreed with everything the noble Baroness, Lady Benjamin, had to say.
There is unequivocal evidence on the negative impact of delay on children’s development and well-being. Children need to form secure and stable attachments, with one or two main carers in order to develop physically, emotionally and intellectually. Therefore, what can we do about the appalling fact that it takes black children, and other children from other minority ethnic groups, so long to be adopted? First, we are taking great steps on a number of fronts to improve the speed at which children are adopted generally. Secondly, we must seek to recruit more adopters and BME adopters and, as my noble friend Lady Hamwee said, we need to open up the system on a more national basis so that there is more scope for making the right matches. However, our research still reveals that in too many cases social workers try for too long to make a perfect match.
I have reflected deeply on this clause since Grand Committee. When children are being matched, consideration of their background and heritage plays a critical part. It is an integral part of a child’s identity and their new parents must be able to support them as they grow up. In Committee, there were moving testimonies from my noble friend Lady Perry, who spoke about Marrianna, the little girl of the Kindertransport, for whom her parents cared, ensuring that they learned about Jewish religious tradition so they could help Marrianna cherish her religious identity.
My noble friend Lady Walmsley spoke about her granddaughter Cathryn, of Chinese heritage, whose parents are learning about her heritage so they can support her. Clearly, with the right awareness and commitment, mixed-race adoptive families can be very happy and successful ones. What is crucial to making effective matching happen is good social work practice and support for adoptive parents so they can support their children, not just at the point of adoption but beyond, as the child grows into a young adult. I do not think that the blunt wording of the Adoption and Children Act—however well-intentioned and wherever it is placed—can secure that.
I am delighted to see the noble Baroness, Lady King, here this afternoon. I had the great pleasure of meeting her now probably eight week-old son the other day, and one could not wish to see a more charming baby. Perhaps the whole House can join me in congratulating her on the birth of Tullio.
Lord Nash
Under the Government’s proposal, courts and adoption agencies will continue to have to have regard to,
“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”,
as set out in the welfare checklist. The Government take a strong view that that must include the child’s ethnicity. We therefore believe that the amendment is not necessary, as that aspect of a child’s identity will form part of an agency’s, or court’s, considerations in deciding the most appropriate match for a child. It is not in the nature of social workers to ignore ethnicity. That has been confirmed by discussions I have had with practitioners, to which I will refer shortly.
On the point made by the noble Baroness, Lady Lister, on the JCHR, we do not agree with the Joint Committee that the clause is incompatible with the United Nations convention. We are satisfied that the requirement in the welfare checklist to have regard to the child’s background and characteristics includes ethnic, religious, cultural and linguistic background. There is also a risk that to place the requirement in the welfare checklist as the amendment proposes will have the effect of giving this aspect of a child’s identity more significance than other equally important characteristics such as disability.
Due to the current wording, some local authorities have paid undue rather than due regard to ethnicity in some cases, at the expense of other needs of the child, as most noble Lords have acknowledged. Since Committee, I have spoken with several directors of children’s services about our proposals. I will share with noble Lords what those who are willing to be quoted told me, and why they support our clause. Ade Adetosoye is Director of Community and Children’s Services, City of London, and spent seven years as the director of social care at Lambeth Council, during which time his leadership helped transform practice. He told me:
“Changing the legislation to remove this explicit requirement is a positive thing—it will not change the good work of many local authorities who already look for the best placements rather than the perfect match. However, poorer performing local authorities do sometimes look too hard for the perfect match to the detriment of the child”.
Andrew Christie, Executive Director of Children’s Services for Westminster, Hammersmith and Fulham, and Kensington and Chelsea, said:
“I fully support the government’s plans not to have ethnicity on the face of the Bill and the welfare checklist because there is evidence that suggests that this leads to some social workers trying too hard to make the perfect match which can result in the child taking a very long time to be adopted, or in some cases never being adopted at all. In my authorities we have a strong focus on people realising that the crucial thing for the child is that the clock is ticking”.
Tim Coulson, Director for Commissioning: Education and Lifelong Learning, Essex, who has himself adopted a child of a different race, said:
“We agree with the Government’s proposal to remove the requirement in legislation to give due consideration to ‘a child’s religious persuasion, racial origin, and cultural and linguistic background’ because we think that this requirement makes some social workers look too long for an ideal match based on these factors”.
Those are practitioners at the coal face.
I think we all agree that we therefore need to change the behaviour and culture of some social workers. We think that the right way to do this is through considerably enhanced guidance, so we have been spending a great deal of time talking to the NSPCC and others about this. I have also had the opportunity to talk to the marvellous charity Hope and Homes for Children, which specialises in going into conflict-torn areas—it started in Bosnia—and placing children in adoptive-type arrangements. It has considerable experience of making cross-race placements, including of Roma children—there is a massive shortage of Roma adopters—and emphasised strongly to me in some detail the importance of training and advice for adopters in that situation.
The debates with noble Lords have made us look closely at the guidance on this issue. We need to underpin practice with nuanced statutory guidance and will continue to work with the NSPCC and others. We intend that the revised statutory—not discretionary—guidance on which we will consult in the new year, and on which I would welcome noble Lords’ comments, will build on the existing draft. It will add that identity, background and heritage are issues that may need to be addressed at different times in a child’s life so that they understand their identity within the family and wider society, particularly as the child reaches adulthood. The noble Baroness, Lady Whitaker, spoke convincingly and passionately from personal experience about the importance of this.
Baroness Whitaker
I am grateful to the Minister for understanding my convictions, but I was attempting to argue against his proposal that these characteristics should not appear in the Bill. It seems to me imperative that they are there as a signpost. I hope he can acknowledge that.
Lord Nash
I am grateful. I understand entirely the noble Baroness’s position. The guidance will also state that adopters of a different background/ethnicity may need additional training and support to help them support their child. This will include how to identify and deal with racism. On the matching process, it will ensure that the adopters can engage with the cultural background, heritage and ethnicity of the child. We will take my noble friend Lady Benjamin’s point about the importance of the child’s life story—the life book—and ensure that this point is in the statutory guidance. I am grateful to my noble friend Lord Eccles for his support for this approach.
We do not think that having ethnicity in guidance but not in legislation is confusing and we are funding the British Association for Adoption and Fostering to provide training seminars for all local authorities and voluntary adoption agencies on this matter and the rest of the adoption reform programme. Training to support ethnicity issues will be part of the 2014-15 sessions and places at these sessions are free. Of course, good matching is important for all children and all adoptive families need access to adoption support at different stages of childhood. We are addressing these issues for all adoptive families and the guidance will reflect that. We will also add other issues that may arise in our discussions with the NSPCC and other experts. During the consultation I will put a copy of the consultation document in the House Library and send a copy to former members of the Select Committee. I hope that many of you will respond. To make that as easy as possible we would be delighted to host a round-table discussion with Peers about the guidance.
However, improving outcomes for black children is not only about adoption. For many, fostering will be more appropriate: three-quarters of all looked-after children are in foster care. For others, it will be special guardianship with a relative or former foster carer. Where adoption is the right outcome for black children, we must do better to find them families as quickly as we do for other children. For those children for whom adoption is the right permanent outcome we need action on several fronts. This includes recruiting more adopters generally, including from minority ethnic communities. This year we have given £150 million to local authorities through the adoption reform grant to help boost adopter recruitment and £16 million for the voluntary adoption agencies to help recruit more adopters who can meet the needs of children needing adoption. For example, Southwark has come up with innovative ways of recruiting adopters from the black community.
There will be better training for professionals. We have appointed BAAF to provide training on a range of issues, which next year will include ethnicity. Places are free for all local authority and voluntary adoption agencies. There will be better adoption support. We know how important this is, not only when the child is first placed with the family, but also later on, perhaps when they are dealing with the trials of adolescence and maybe, as my noble friend Lady Benjamin alluded to in one particularly moving case, questioning their identity. In September 2013 we announced a new fund with a contribution of nearly £20 million to help adoptive parents access the best possible support to meet their children’s needs. This fund will be rolled out nationally from 2015 but will be trialled from next year. The investment will make a difference to adopters in providing the support they need and better guidance, and I have explained the steps we are taking here.
As the noble Baroness, Lady Morris, said so incisively, we have, I believe, complete consensus right up to, and including, the point of diagnosing the problem. The issue is precisely how we change a culture of behaviour, but we have no intention of moving away from the importance of the child’s cultural and ethnic background. It is imperative that these are taken into account on every front.
I hope that we do not vote on this matter. That would be unfortunate given the nature of the matter that we are dealing with. I am personally committed to spending as much time as possible with my officials, the NSPCC, noble Lords and other interested parties to ensure that we get appropriate guidance in place to enable this matter to be handled in a way that takes into account the best interests of the children so that, on the one hand, their ethnicity is fully taken into account in all placing and matching decisions and, on the other, they are not left on the shelf and short-changed by the system, as many are now.
I hope noble Lords will agree that we are all very much in the same place and that statutory guidance gives us the scope to steer social work practice in a more nuanced way than through blunt statements in the Bill. On that basis, I hope the noble and learned Baroness will withdraw the amendment.
I now turn to the amendment in the names of my noble friends Lady Hamwee and Lady Walmsley. I am grateful to my noble friends for their innovative thinking on this matter, proposing to remove references to age and sex from Section 1(4)(d) of the relevant Act. I understand the thinking behind the amendment, which I believe is designed to remove from legislation any of the specific characteristics about a child, and rely wholly on the phrase,
“the child’s background and any of the child’s characteristics which the court or agency considers relevant”.
After careful reflection, I do not propose to follow this line of thinking at present. This is because there is no evidence that there is an issue with the way that the courts or adoption agencies are interpreting the words “age and sex”. There is a fairly technical issue at play here. Clause 2 seeks to remove subsection (5) of Section 1 of the 2002 Act. This is a requirement which applies only to adoption agencies—that is, local authorities and voluntary adoption agencies—when placing a child for adoption. Subsection (4) of Section 1—what is known as “the welfare checklist”—applies to the court as well as to adoption agencies, so seeking to amend this suggests a change for the courts as well as for adoption agencies.
In addition, this provision in the welfare checklist reflects an identical requirement on the courts in Section 1 of the Children Act 1989 when considering orders under that Act. Therefore, if we were to change the wording in the Adoption and Children Act 2002 in the way suggested by removing the reference to age and sex, that would send a strange signal to the court as it would suggest a different decision-making process under the Adoption and Children Act 2002 from that under the Children Act 1989.
However, in the end I come back to the very serious issue we want to address: the delay that black children and other ethnic minority children experience while waiting for adoption. As I said at the beginning, we have today paid tribute to one of the greatest advocates of racial equality ever. I listen frequently to the wonderful speech given by the other great advocate, Martin Luther King, which in my view is the greatest speech ever made. It is not the “I Have a Dream” speech, which everyone thinks of, but the one he made two months before that at Cobo Hall in Detroit in June 1963, which was then the centre of popular music, in which he used that wonderful musical analogy that all God’s children, from base black to treble white, are equally important in God’s world and on God’s keyboard. However, that does not seem to be the result in terms of the outcomes for black children in our adoption system, and this Government are determined to change that.
It is the requirement on local authorities and other adoption agencies at Section 1(5) in the Adoption and Children Act which—albeit it was placed there with the best of motives—I believe has contributed to the delays that black children face, as I think all noble Lords have acknowledged. The statutory guidance gives us the opportunity to provide much more nuanced advice and guidelines which will benefit all children being adopted, not just those who are visibly different from prospective families. For this reason, I urge the noble and learned Baroness to withdraw the amendment.
Baroness Butler-Sloss
My Lords, I thank all those who have spoken on what in my view is an important issue, although it may be, as several have said, a question of balance and degree. I will start by answering some of the Minister’s points. As a former judge who tried adoption cases, I am well aware of the unacceptable delays that there have been in adoptions of non-white children and children from other cultural backgrounds. I believe that Section 1(5), requiring social workers and the courts to pay particular regard to ethnicity, was wrong and I am happy that the Government wish to remove Section 1(5) from the Adoption and Children Act 2002. However, I do not believe that putting these words into the checklist would have the effect that the Minister says.
The Government are putting forward a number of extremely sensible suggestions, many of them coming from the important reports that have been published. I hope that these will lead to far better adoption situations, and for all children who should be adopted to be adopted more quickly. Therefore, I very much appreciate the work the Government are doing. It is interesting that agencies remain unconvinced by the Government’s arguments, although they are, like the NSPCC, willing to work with Government to improve the statutory guidance if this amendment does not go through. I very much support any sort of enhanced guidance and training, but I am afraid that this is not enough.
I was probably wrong in my opening remarks to your Lordships in concentrating on ethnicity, because the words that I proposed should go into the checklist are four factors:
“religious persuasion, racial origin and cultural and linguistic background”.
They are all equally important and I was at fault for concentrating on ethnicity. It was a shorthand version and probably misleading.
I take the point made by the noble Lord, Lord Storey, about statutory guidance being good enough, but I ask him: if statutory guidance is good enough, why do we have the checklist? Surely the checklist could equally well go into statutory guidance. The checklist in Section 1(4) of the Adoption and Children Act has six paragraphs, (a) to (e), and three sub-paragraphs, (i) to (iii), and it is thought necessary to include them in the checklist, not just in statutory guidance. So why are the other factors in the 2002 Act so much more important than these four points that I have just set out, which I propose should be slipped neatly in with the rest of the checklist?
It has been suggested by the noble Baroness, Lady Eaton, that the words “have regard” might be seen as prescriptive, but sitting as I did as a judge, to “have regard” to something is not in the least prescriptive. One can have regard to it and then disregard it. One does not have to keep on regarding it. I certainly had no problem in the Children Act and the Adoption Act in having regard to something, then discarding it. There is nothing at all prescriptive about “having regard”. However, a checklist is a reminder to social workers and judges that they must not ignore it. To take it out altogether, which the adoption agencies are concerned about, is to swing that pendulum too far the other way, because it is not then anywhere.
It is suggested that the words “background” and “characteristics” are clear, as the noble Baroness, Lady Perry, said, and one does not need anything else. If I may respectfully disagree with her, I actually think that you do. You need a bit of a jolt. What do “background” and “characteristics” mean? They have to include certain points that I am not certain every social worker, however senior, might necessarily have in mind unless they were there. I say again that statutory guidance is not quite as good as having a checklist in primary legislation. The pendulum should be in the middle, and the middle means putting it in somewhere, but not making it too important. That is what I would like to see with this amendment, and I would like to test the opinion of the House.
Baroness Walmsley
My Lords, I support the amendment in the name of my noble friend Lady Hamwee.
A point was made by two earlier speakers that the Secretary of State could use successive orders under new Section 3A(3)(b) to achieve what new subsection (3)(c) provides for—in other words, to wipe out all local authorities from these various functions. Given the fact that new subsection (3)(c) is in the Bill, any Secretary of State who were to try that would, I am sure, be challenged for an abuse of process. I cannot see any Secretary of State trying to do that. It would be eminently challengeable. To colleagues who fear that scenario in the future, I suggest that it is not likely to happen. We have in my noble friend’s amendments a process—which I think the Government will be able to accept—to bring about parliamentary scrutiny if the powers in new subsection (3)(c) were used. That is the right level of parliamentary scrutiny required.
Lord Nash
My Lords, I am grateful to those noble Lords who have contributed to this debate. I am acutely aware of the concerns Peers have raised about this clause. I thank particularly my noble friends Lady Hamwee, Lady Eaton, Lord Storey and Lord Eccles for helping me to understand the nature of those concerns.
Following constructive discussions, I am persuaded that the Government’s amendment and the commitment to report to Parliament do not provide for the parliamentary scrutiny that many noble Lords would wish to see. I am therefore very grateful to my noble friends for tabling their Amendments 4A to 4D and 6A. I am persuaded that it is right for a direction to all local authorities to be subject to full and rigorous scrutiny by Parliament. I therefore confirm my support for their amendments and, if they are accepted, I will not of course need to move my Amendment 6.
Before I address Amendments 4 and 5 I remind noble Lords of the rationale of the clause as set out in the recently published policy statement. The clause is intended as a backstop should the current and significant efforts of local government and voluntary agencies prove insufficient. Unfortunately, we have to accept that this is a possibility as adoption agencies have to work within a flawed system. The fundamental problems are the structure of provision, based around local boundaries, and the unhelpful incentives associated with this structure. This constrains the ability to recruit adoptive parents in sufficient numbers. As a result, the system fails to deliver enough adopted parents to meet national demand, as we have already discussed.
However, let me be quite clear: it is the system that is failing to meet national demand, not the individual local authorities and voluntary adoption agencies that make up the system. The distinction is important and can be demonstrated by statistics. Recently published Ofsted data showed a 34% increase in adopter approvals in 2012-13 compared to the previous year. This is a huge achievement on the part of individual agencies. Local authorities have delivered a 32% increase in adopters recruited and approved and voluntary adoption agencies a 53% rise, and they should be congratulated.
Impressive though these numbers are, the sad truth is that this is still not enough to meet the needs of the number of children waiting for a loving home. At the end of March 2013, there were 6,000 children approved by the courts for adoption, waiting to move in with a permanent family. This is 15% higher than the year before. Furthermore, we estimate that we need around 3,100 additional adopters to meet the existing demand of the children who were already waiting with a placement order.
So we face a real challenge to recruit more adoptive parents. To meet it, we need to transform the system and tackle the underlying structural problems. I feel that we are well placed to do so. After welcome and constructive discussions with colleagues from local government and the voluntary sector, we have an agreed proposition for a national adoption leadership board. This is a significant milestone and demonstrates a collective commitment to take nationally driven action to close the adopter recruitment gap. The board’s members will be senior figures from the core organisations within the adoption system in England. I therefore see this board as the principal forum to deliver significant improvements in the performance of the adoption system.
Under the board’s leadership, we expect to see significant changes in the shape and structure of the providers available, including increasing consolidation and scale among local authority adoption agencies; growth in the capacity of the voluntary sector and an increase in the proportion of adopter approvals for which it is responsible; and more partnership working between local authorities and voluntary adoption agencies, local authority employees, spinouts into mutuals and the entry of some new providers.
These sorts of things are already happening. For example, I was pleased to see from the recent Ofsted publication that, as my noble friend Lady Hamwee referred to, 12 local authorities now provide adoption services under joint arrangements. These are Bedford borough and Central Bedfordshire; the west London tri-borough; Leicestershire and Rutland; Shropshire and Telford; and, as the noble Baroness, Lady Hughes, referred to, Warrington, Wigan and St Helens.
I also welcome the partnership arrangements that exist between local authorities and voluntary adoption agencies—for example, those operating in Harrow, Kent, Cambridgeshire and Oxfordshire. We just need to see these types of arrangements happening more quickly and more often.
Clause 3 therefore provides levers of last resort. It is the backstop to a number of things that Government are doing to support local authorities and voluntary adoption agencies. I have already mentioned the Government’s support for the new national adoption board. We have invested £150 million through the adoption reform grant to support local authorities in 2013-14. We are also investing £16 million to build the capacity of the voluntary sector.
We know that these investments are having an impact. We expect there to be a number of new voluntary adoption agencies in the near future and we know that many local authorities have made good use of the adoption reform grant. For example, they have recruited additional staff, provided staff training and development and funded a range of marketing activities to recruit more adopters. I was particularly interested in the work the Southwark area is doing, as I have already mentioned. It used some of its funding to develop an innovative recruitment campaign to target harder-to-reach prospective adopters using a reward scheme. Southwark is also working with Lambeth to fund an outreach worker to promote the recruitment of adopters from the BME community.
I will now explain the government amendment, which tries to address some of the concerns raised in Grand Committee. Amendment 6 delays the implementation of new subsection (3)(c) until March 2015 at the earliest. It therefore provides more time for current reforms to embed and for the new leadership board to have an impact. The Government also commit that the Secretary of State will report to Parliament before issuing any direction under new subsection (3)(c).
This report would set out an updated analysis of the state of the adopter recruitment market. It would cover both the local government and voluntary sectors and analyse their current structure and effectiveness. It would also include the latest estimate of the adopter recruitment gap. In essence, it would justify the requirement for a direction under new subsection (3)(c). Any such direction would provide sufficient time for new arrangements to be put in place. This is an important point as structural change cannot happen overnight.
Baroness Hughes of Stretford
My Lords, I would like to clarify whether the Minister is withdrawing Amendment 6, as I thought he stated earlier on.
Baroness Hughes of Stretford
For absolute clarity, is the Minister saying that he is withdrawing Amendment 6?
Lord Nash
My Lords, I am and I am accepting Amendment 6A.
In the period prior to March 2015, the Secretary of State would retain the capacity to issue directions under new subsections (3)(a) and (3)(b), if absolutely necessary. As I set out in my policy statement, these directions would follow due process. For example, they would be preceded by a letter setting out the Secretary of State’s intention to issue a direction. This would explain the underlying reasons and provide the affected local authorities with an invitation to respond. Only then would the Secretary of State take a final decision to issue the direction. In considering the issuing of any direction, I expect the new adoption leadership board to play a key advisory role.
Amendment 5 would largely reduce Clause 3 to an intervention power to tackle individual local authorities. But this is not the purpose of Clause 3 which, as I have said, is intended to tackle whole-system failure. Nor would such an intervention power be necessary. As noble Lords are aware, the Secretary of State already has the power to intervene if the performance of individual local authorities requires it.
We have already seen a welcome increase in the number of adoptive parents recruited. This is testament to the efforts of adoption agencies to rise to the challenge. Simply having Clause 3 in the Bill has undoubtedly helped to galvanise agencies, as referred to by my noble friend Lord Storey, but Amendment 5 would simply undermine this stimulus to further progress. I therefore urge the noble Baronesses not to move it.
Turning to Amendment 4, the Government do not agree that directions to “one or more descriptions” of local authorities under new subsection (3)(b) should also be subject to the affirmative procedure. New subsections (3)(b) and (3)(a) provide the Secretary of State with the flexibility to take swift, decisive action if required. For example, to answer the point made by the noble Baroness, Lady Meacher, they could be used to direct a small number of local authorities who were resisting a successful regional initiative, driven by other local authorities, to collaborate and work more efficiently. A direction given in this way would be the result of a dialogue with the affected authorities. It would thus be an iterative process, not a unilateral declaration.
I can confirm to my noble friend Lady Hamwee that it is not the intention to use new subsection (3)(b) as a method of achieving the aim of new subsection (3)(c) without the affirmative procedure. My noble friend also asked whether the direction has to be about all the functions in subsection (2), or merely some of them. She is right; it can be about all or any of the three function in that paragraph.
I understand that the noble Baronesses, Lady Hughes and Lady Meacher, and the noble and learned Baroness, Lady Butler-Sloss, wished to make the case for the affirmative procedure and I have agreed that this should apply in relation to new subsection (3)(c). I am also surprised that Amendment 4 does not encompass the March 2015 milestone. This is an important staging post to ensure the reforms have maximum impact. I therefore ask the noble Baroness, Lady Hughes, to withdraw her amendment.
Lord Nash
My Lords, the small government amendment I have tabled will move Clause 9 from Part 1 of the Bill to the new Part 5, which is about the welfare of children. This will mean that the provision will be in the same part as other clauses that relate to looked-after children.
Before the noble and learned Baroness speaks to her amendment, it might assist the House if I confirm the Government’s position on enabling young people to remain with their former foster carers, commonly referred to as “staying put” arrangements. Last week, we announced our intention to propose an amendment to the Bill at Third Reading to place a new duty on local authorities to support every care leaver who wants to stay with their former foster parents until their 21st birthday.
I am fully conscious that many noble Lords have dedicated their life to public service, whereas I am a relative newcomer to this. Indeed, up until 10 years ago I spent my life in business focused, frankly, on money. However, about 10 years ago some philanthropic juices started to flow—better late than never you might think—which was initially sparked by two events which happened, as so often serendipitously occurs, in close proximity to each other that made a profound impact on me. First, I visited an organisation which was involved in looking after children in care who were particularly challenged and had fallen out of many other placements or, as the noble Earl, Lord Listowel, described it, had experienced a revolving door of care. This organisation provided intensive care for these children. I remember when visiting them being struck by how intensive this support was.
Shortly thereafter I visited the charity Amber, which looks after young people, many of whom have been in care and many of whom some years after leaving care have become homeless or been in prison. Amber takes these young people for an intensive residential course to rehabilitate them into society, teach them how to apply for a job, be interviewed, how to dress and show manners et cetera. The charity has a very high success rate of getting them into jobs permanently. When visiting this charity and talking to the young people, I was struck by the contrast between the often very good care that they spoke about receiving—not always but often it was very good care—and how, when they became adults, society seemed to drop them like a hot brick. Following this, I spent some considerable time understanding the plight of children leaving care, and I am delighted to say that we have moved a long way since then, thanks to the very good efforts of the previous Government and this Government.
Therefore, when the noble Earl, Lord Listowel, first started to talk about staying-put arrangements he was, as far as I was concerned, pushing against if not an open door at least one that was off the latch on well-oiled hinges. I discussed the matter with my honourable friend the Minister for Children and Families who—as the noble Baroness, Lady Northover, said, I am delighted to see is in the House—particularly following the latest disappointing figures from the staying-put pilots, had absolutely no hesitation in feeling that this was something we should do. We then spoke to my right honourable friend the Secretary of State for Education, who agreed to it in a heartbeat. Therefore I am delighted to bring forward the amendment today.
I know that many from across both Houses share our commitment to doing better for these most vulnerable young people, but I would like to take this opportunity to pay tribute particularly to the noble Earl, Lord Listowel, for his commitment to increasing and improving the support available to care leavers. The way he presented the case for this new duty during our debates and in our meetings shows that he is a powerful advocate for this group of vulnerable young people. Indeed, I would like to thank the many noble Lords who spoke on this issue in Grand Committee.
Over recent years, I think we have all come to realise that young people often are not ready to leave home at 18. We rarely expect our own children to do so, so why on earth should we treat those in care differently? This issue has moved up the agenda, from the work started by the previous Government, including by the noble Baroness, Lady Hughes, to the significant step forward that we will make in the Bill. I pay tribute to the noble Baroness, Lady Hughes, for initiating the pilots, which have so informed our thinking on this matter.
My honourable friend the Minister for Children and Families has made improving support for looked-after children and care leavers one of his main priorities since joining Parliament—initially as chair of the All-Party Parliamentary Group for Looked-After Children and Care Leavers and now as a Minister. From last autumn, he has led a drive to promote staying put and to encourage local authorities to make this more widely available. As he said in the other place, we wanted to wait for this year’s figures to see what progress had been made. At Grand Committee, those figures had just been released and the increase was minimal. I explained our disappointment that they had not increased as much or as quickly as we hoped.
I would like to thank the sector, particularly the Fostering Network, for its work with officials on the evidence base which has so informed our decision. The new duty will come into force from April 2014. We will be giving local authorities £40 million over the next three years to put the support arrangements in place.
When we made the announcement on introducing this new duty, a number of voluntary organisations immediately supported the move. I will quote two of those. Janet Rich of the Care Leavers Foundation said:
“Step by step this Government has demonstrated that it truly understands the difficulties which face care leavers as they set out on the journey towards adulthood. Today’s announcement is another positive step on the journey towards State-as-parent acknowledging the duty they owe to this uniquely vulnerable group of young adults”.
Natasha Finlayson of the Who Cares? Trust said:
“This is absolutely fantastic news for thousands of young people in foster care, giving them vital security and support at a crucial time in their lives. It represents the most significant reform to the support children in care are given in a generation”.
I hope that noble Lords will welcome the significant change that we are proposing for care leavers. This will allow them to leave stable and secure homes when they are ready and able to make the transition to independence. I beg to move the government amendment, which moves Clause 9 to Part 5 of the Bill.
The Earl of Listowel
My Lords, perhaps I should rise. I was so focused on the previous amendment that I had rather missed that this was coming here. I apologise most sincerely for that, but I thank the Minister for his words.
Sorry, am I talking completely out of place?
The Earl of Listowel
My Lords, I am most grateful to the Minister for informing us of the Government’s proposal to bring forward their own amendment at Third Reading to introduce the staying-put amendment. I was very grateful to him for his preparedness to listen. Our first meeting had to be postponed because of family illness, but he was very prepared for us to meet again to discuss this, he listened carefully to concerns and we met on subsequent occasions. I was most encouraged by his attention and his responsiveness to my concerns and to those raised by other noble Lords.
I was also very moved in Grand Committee by the strong support from all around the House, from so many noble Lords who are parents and grandparents, who recognised that they look after their own children until the age of 25 or 30. The average age of a child who leaves home is 24 or more. However, many young people who leave care move out at age 16, 17 or 18. I am so grateful to all your Lordships that this change has come about.
In the evaluation that was done on this following the pilots in the 10 local authorities that the noble Baroness set up under the previous Government, 24% of young people stayed put. Those who stayed put with their foster carers towards the age of 21 were twice as likely to be in education and more likely to be at university. Those who did not benefit from staying put, who did not stay with their foster carers, were more likely to have multiple changes in habitation immediately after leaving care and to have far poorer outcomes. As Natasha Finlayson, chief executive of the Who Cares? Trust, said, this is a huge change in the lives of many young people leaving care—one of the biggest changes we have seen in many years. It is very much to be welcomed.
I want to raise one issue at some point with the Minister, which Natasha Finlayson raised in her comments, on dealing with children in children’s homes. They would not be touched by the legislation as it stands, and I understand that it would be a considerable extra cost to allow young people to stay in their children’s homes past age 18. However, it has been suggested that there might be a method of connecting young people in residential care with foster carers towards the end of or early on in their stay in residential care so that, if they chose, they could move on to a fostering arrangement as they moved towards the ages of 18, 19 and 20. I hope that the Government might look at that. Perhaps that is something for guidance rather than statute, and therefore perhaps not for the amendment the Government will bring forward at Third Reading. However, I hope that they will consider it.
I am particularly grateful to the Secretary of State who, at a time of serious austerity, was prepared to come forward with £40 million to enable this to happen. I very much wanted that to be achieved, but felt some concern for the directors of children’s services, who would have to make some very difficult choices in the short term to make this possible. As regards this matter I am therefore extremely grateful for the actions of the Minister, to the Minister for Children and Families, and to the Secretary of State.
Lord Nash
My Lords, I can confirm that we will lay an amendment at Third Reading and that we will produce it in good time before that. We did not lay it today as we wanted to get the wording right. We want not only to ensure that the wording is legally correct but also that there is a consensus around it, both in Parliament and in local government and the sector. We will take account of all the comments made by noble Lords as we develop the amendment and start to work on statutory guidance. We will be consulting with interested Peers, local government and key voluntary sector organisations over the next few weeks on the wording of the proposed amendment. Officials will be happy to arrange a meeting with noble Lords to discuss the detail of the amendment.
The noble Earl, Lord Listowel, commented on care leavers who leave residential care. In general, as noble Lords will know, children’s homes do not seek to provide a permanent “family-type” placement, and few placements in homes last very long. However, there is nothing to stop local authorities from providing staying-put arrangements. However, our proposed duty will only apply to care leavers who leave foster care placements. As the noble Earl said, it is a great deal more difficult and expensive to provide staying-put arrangements in children’s homes. You would have vulnerable adults in homes with much younger vulnerable children. However, we are supporting Catch22 with a grant of £200,000 over two years to help improve support and outcomes for young people who leave residential care. The project is working with six providers in the north-west of England and learning will be disseminated nationally. I will be very happy to discuss that project with the noble Earl in more detail.
I hope that our decision to table an amendment on staying put at Third Reading will reassure noble Lords that we are committed to introducing legislation in the Bill on this issue. I therefore urge the noble Baronesses to withdraw their amendment and I beg to move the minor government amendment that would transpose Clause 9.