Special Educational Needs (Personal Budgets) Regulations 2014

Baroness Hughes of Stretford Excerpts

Monday 16th June 2014 Grand Committee

[Lord Addington (LD)]

My Lords, for once when I find myself talking about the noble Lord, Lord Nash, I am basically saying “Well done”, because the approach to bring parents more into the process and to bring the expertise and support together is very positive. Particularly in the case of certain types of needs or a certain child, the parent is usually the expert, at least initially, and to bring that expertise in is often required.

It is also the case that if one gets an individual need or even indeed something more commonly occurring, it is not uncommon to find a parent who has the time and energy to focus on their child to become more informed about that one child than the professional educators. So this has the potential to be a very good thing.

The devil, of course, will be in the detail and how it is seen through, but at least we have a willingness here to accept that it will need to change and develop, and it will not be one size fits all. This is probably a very good thing. I am sure that politicians and local authorities have the capacity to mess it up themselves, and not all parents will be that well informed and intentioned, but as a basic approach, I think there is much more good than harm in this.

[Baroness Hughes of Stretford (Lab)]

My Lords, I will say at the outset that we very much welcome, as I think all Members in Committee on the Bill did, the principle of personal budgets and direct payments for children and young people with special education needs and learning difficulties and their families. It is fair to say that we all saw it as a tremendous possibility for empowering those young people and their families and parents. If it works, it will stimulate the provision of more and better services, and hold local authorities and providers to account, using the leverage of the personal budget. However, although we welcome the provision and the regulations, I would like to raise four points with the Minister, which potentially jeopardise this outcome of the empowerment of young people.

The first is the lack of evidence from the pathfinder programme that the Minister referred to. The most recent evaluation we have was published three months ago, in March. At that time, only six of the 31 pathfinder areas had started to implement personal budgets and only four of them had actually managed to develop the necessary resource allocation system which underpins the whole thing. Therefore, as yet, there is no substantial evidence to support what the regulations should be doing in this area—there is not much experience to speak of. It also suggests that many local authorities will have difficulties, as the pathfinders clearly have, setting up personal budgets and will need considerable support and guidance. Although I hear what the Minister says—that this is a kind of iterative, developmental and evolutionary process—there really is at the moment, in this area anyway, very little foundation in terms of knowledge and experience from the pathfinders on which to build. Can the Minister be confident that local authorities generally will be able to implement personal budgets effectively and, more to the point in terms of our discussion today, in the light of that lack of evidence, that these regulations are adequate to ensure that families can really access the personal budgets if they wish?

My second point relates to Regulation 7, which refers to the decisions by local authorities not to make a direct payment. The regulations themselves do not specify the grounds on which a request for a personal budget can be refused by a local authority but simply say that the local authority must give the reasons, in writing, for that refusal. The code of practice that was published in the last couple of days, at paragraph 9.107, refers readers to later paragraphs—paragraphs 9.119 to 9.124—for the reasons why a request may be refused. However, I have to say to the Minister that those paragraphs in the code of practice are about as clear as mud to the average family and, indeed, to me. They refer specifically to other pieces of existing legislation, which you then have to go and trawl through in order to understand what the grounds for refusal might be. Could the Minister say clearly today, and put on record, what are the grounds on which a local authority can refuse a request, over and above those basic conditions outlined in Regulation 8? In respect of direct payments, which are, if you like, a subset of personal budgets, will the Minister look at rewriting the code of practice so that paragraphs 9.119 to 9.124 are clearly understandable by families and professionals who will be looking to the code of practice for guidance?

My third concern is around Regulations 6(c) and 6(d), which the Minister referred to. It seems that these potentially constrain the provision of personal budgets by placing conditions—some would call them a get-out, as the Minister said, although he was referring to something else at that point—because they will enable local authorities to refuse personal budgets if the local authority feels that the provision of those budgets would have an adverse impact on other services or have an impact on the efficient use of local authority resources. I served a long time in local government before coming to this place, and that could mean anything in any local authority. If you are providing a whole range of services directly as a local authority, and somebody wants to take a chunk of your money and have a personal budget, any local authority can argue that that will have an adverse affect on its services and will not be an efficient use of its resources. Therefore, I am very concerned about the wide scope that those two sub-paragraphs give to local authorities to refuse, or at least not promote, personal budgets.

--- Later in debate ---

[Lord Nash]

I am grateful to noble Lords for their comments and questions on the regulations. I turn first to the point made by the noble Lord, Lord Pearson, about portability. When a family moves to another area, the new local authority may review the plan and conduct an assessment but should keep the provision in the plan in place, including the provision supported by a personal budget.

I am very grateful to the noble Lord, Lord Addington, for his kind remarks and support for what we are doing. I turn to the four points made by the noble Baroness, Lady Hughes. I accept that the current evidence is not as extensive as we would all like. However, more than 500 personal budgets were in place at the last count in April, and in May 90% of local authorities said that they were ready to implement the reforms. Local authorities have expertise available to them in relation to the champions for personal budgets. SEN advisers are working with local authorities on this.

When someone’s experience is that something in the code of practice is, as the noble Baroness said, as clear as mud, it gives me cause for concern, but we will be debating this in full in the next few weeks. We feel that the guidance is appropriate but I look forward to those discussions.

I turn to the noble Baroness’s points about Regulations 6(c) and (d). We must consult about the personal budgets with parents and families as part of the process. I have to say that we have had no evidence that local authorities will use these regulations as a kind of devious reason for making the provisions available. Surprisingly, in my visits to a number of pathfinders, I found strong evidence that personal budgets resulted in a more efficient use of resources, as parents understood that this did not amount to a blank cheque, and the co-operation between parents and local authorities resulted in more efficiency.

Lastly, to deal with the point about post-16 provision, the regulations and advice that we give in the code of practice are clear that personal budgets should support provision that is appropriate to the young person as an individual. The wider provisions of the Children and Families Act contain a presumption of mainstream education for those with EHC plans, including those with personal budgets. If that is not an adequate answer for the noble Baroness I would be very happy to discuss it with her further and write to her.

[Baroness Hughes of Stretford]

I know that the Minister said we are going to debate the code of practice but what are the grounds upon which a local authority can refuse a payment? Why are those grounds not clearly listed in the regulations?

[Lord Nash]

It looks like I am going to have to get back to the noble Baroness on this. I do apologise.

Perhaps I can close with a quote from a parent on our pathfinder programme, who said:

“The flexibility is essential and means we can reflect changing circumstances’ needs. Compared to this time last year our son is a happier, less anxious, more settled and communicative child and as a consequence we as a family are able to function better and look forward more optimistically”.

I can think of no better way in which to conclude our discussions and, on that note, I hope that all noble Lords will give the regulations their support.