Schools Bill [HL]

Lord Faulkner of Worcester Excerpts

Committee stage & Lords Hansard - Part 1
Monday 20th June 2022 Lords Chamber

Amendments 163 to 166 would each make a material difference to the experiences of our disabled and SEN young people. Taken together, I believe they would be transformational, enabling and empowering all our young people with SEN and disabilities to succeed—because of the system rather than, as is all too often the case, too few being able to succeed and having to do so in spite of it.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

The noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interests as a vice-president of the Local Government Association and as a former chair of governors of Mayfield Primary School in Cambridge, which at that time had the hearing impaired unit for southern Cambridgeshire.

The noble Lord, Lord Hunt, introduced his Amendment 97 on arrangements for funding for specialist SEND services for children and young people with sensory impairment. I completely support it. I have heard very recently of a profoundly deaf child, the only one in his mainstream primary school, who has access to a deaf teacher for just one afternoon a week. That is not inclusive education.

The Secretary of State must give local authorities the right level of funds, in this case through the high-needs block, so that they can deliver the support that SEND children need. This is the key to the current SEND issue: the money does not get to the local authority so the local authority cannot follow the child and the child’s needs; this probably explains many of the problems that we are discussing in this group.

Amendment 99 adds to Clause 48 that the details of any SEN or disability that a child has need to be listed; I support that too. I also support the amendments in this group in the name of the noble Lord, Lord Holmes of Richmond, who set out so eloquently the further protections needed for pupils with SEND. Amendment 163 at last demands a strategy to close the education attainment gap for young people with SEND.

Last Friday I attended a webinar run by the Disabled Children’s Partnership, at which parents recounted many of the problems they are facing in getting the right level of support; or worse—as in the case of one parent of a child with multiple physical disabilities but who was intellectually on a par with his peer age group. The only school available to manage the former issue could not teach him at his chronological age; every other child in that school also had learning difficulties.

Even worse, Oskar Nash and Sammy Alban-Stanley, two disabled teenagers with complex medical needs, both died after their school and LA failed in their duty to follow their care plans. Their families had pleaded for support in helping them to cope with the boys’ disabilities. Sammy’s mother told us at the webinar how exhausting it had been to constantly have to fight for the support he needed. CAMHS had recommended a care education and treatment review, but it was not actioned before his death. Oskar Nash was moved from a special school to a mainstream school without further review of his EHCP. Despite urgent referrals to CAMHS, which passed him on to an external counselling service without any clinical assessment, at the time of his death his local authority, Surrey County Council, had not done an assessment of his needs. Coroners in both these cases are extremely concerned about the boys’ deaths and have written recently to Mr Zahawi, Mr Javid and the local education and healthcare bodies involved.

I have worked with families with disabled children for years. These cases are the tip of the iceberg. The system is broken. Children are dying and children are being let down. While many of the amendments relating to Part 4 of the Bill relate to the concerns of parents who have chosen to home-educate their children, I want to focus in this group on a number of different groups of pupils who do not wish to be out of school but who face difficulties, either with their needs not being met or who have medical conditions that mean they are out of school. They broadly fall into the category of school being an unsafe place for them either without medical advice being followed or, for some, without reasonable adjustments that would have made school safe for them.

Almost universally, all these affected children are getting no alternative provision at all. They include pupils so severely bullied that they are waiting for mental health appointments but cannot face school until they get help. There are also pupils who are young carers known to their local authorities, who are doing a full-time job caring for a parent or other family member and are emotionally and physically exhausted. There are pupils with complex medical needs, with clinical requirements that are not being followed by the school. There are pupils who are either immunosuppressed or immunocompromised, whose doctors say that special arrangements should be made for them in school; otherwise, they are at risk of catching illnesses—such as, but not only, Covid—which might kill them.

Dr Lee-Anne Kohli’s son Kieran is clinically extremely vulnerable. His paediatric cardiologists requested remote learning for both of her children. This was agreed until Department for Education policy changed. From September 2020, the school enforced new government policy that every child must attend school. When the school threatened fines and prosecution for persistent absences and recommended to the parents that the child be off-rolled, the parents eventually did this. Children such as Kieran should have access to remote exams but most exam centres do not permit remote exams. The parents say that, if a school attendance order were enforced against them, the children would have no option but to relocate overseas to live with their father as UK schools are not safe for their child; the hospital doctor says so too.

“Child EA” is due to start primary school this autumn. Both she and her mother have primary immunodeficiencies and her father is also clinically vulnerable. The family are acutely aware of the issues faced by high-risk families. Both parents have been supported by their employers to work from home. All their child needs to be able to go to school is a HEPA filter to be installed at the school, but the school will not do that. Currently, these parents are considering delaying their decision until their child reaches compulsory school age. They face having to educate her at home alongside her attending a private forest school to allow her to socialise outdoors if there is no HEPA filter in the primary school.

There is one thing that many parents from this group share: they are already being fined for their child being out of school because currently schools have the right to ignore professional medical advice or the advice of other experts such as social workers. This is because the statutory guidance for schools on pupils with medical conditions has been diluted away from its original intentions. It cannot be right for parents to be fined if their child’s safety or needs are not being met in school and where an expert says that, until their safety is assured or their needs are met, the school should make alternative provision for them. Parents are being fined now despite their children being ill. Clauses 48 and 49 will make this much worse, especially if Ministers, local authorities and head teachers are able to decide what is and is not medical, contradicting the advice of professional doctors.

There is a way to remedy all this. Section 100 of the Children and Families Act says:

“The appropriate authority for a school to which this section applies must make arrangements for supporting pupils at the school with medical conditions … In meeting the duty in subsection (1) the appropriate authority must have regard to guidance issued by the Secretary of State.”


The statutory guidance published in 2014 after the Secretary of State worked with schools, parents, medical charities and Peers, including myself, stated clearly:

“The aim is to ensure that all children with medical conditions, in terms of both physical and mental health, are properly supported in school so that they can play a full and active role in school life, remain healthy and achieve their academic potential.”


It further said:

“Governing bodies should ensure that the school’s policy is explicit about what practice is not acceptable”,


including ignoring “medical evidence or opinion” and penalising

“children for their attendance record if their absences are related to their medical condition.”

That guidance also states how schools, local authorities, doctors, parents and the children themselves should together create a healthcare plan for these children that sets out how best the child’s medical needs can be met. As I have said at earlier stages of this Bill, unfortunately this statutory guidance was changed in 2017, with no consultation with medical charities or parents, to remove the statutory elements about schools having to work with, and not ignore, medical advice.

Page five of the new guidance talks about schools having to follow the duty under the Equality Act for disabled children, but not all children with medical conditions are classified as disabled. Worse, some of the excellent parts of the previous version are now reduced in strength to being merely “further advice”, including working with medical practitioners who know the child.

At the webinar on Friday, I heard about a six year-old child with type 1 insulin-dependent and complex diabetes, ASD, sensory processing disorder, Pica, communication difficulties, severe anxieties and more who has not yet attended school. Nursery consisted of one and a half hours per day and was very inconsistent. Nursery staff were said to be trained in diabetes, but mum was called on a daily basis to check her son’s dropping levels. The family recently attended a SEND tribunal. The tribunal judge found that a SEN school with no medically trained staff or qualified nurse on site can meet need against parental choice of a non-maintained special school. The problem is that the tribunal decision was made of the grounds of the best use of resources, even though the parents argued, “How on earth can you put a price on his life?” The actual effect of that decision is that it is dangerous for the child to be left in school without experienced staff who understand the child’s diabetes properly. I have laid my amendment to make sure that we go back to a previous version, where medical advice is followed for these children.

Schools Bill [HL]

Lord Faulkner of Worcester Excerpts

Committee stage
Wednesday 22nd June 2022 Lords Chamber

[Lord Lucas (Con)]

My Lords, in moving Amendment 112A, I shall speak to my other amendments in this group. The focus of the group is the relationship between local authorities and home educators, which is well illustrated—we shall come to it later—by the text of Amendment 128A, which reads:

“Local authorities must … recognise that the first responsibility for educating a child lies with its parents … be supportive of those who elect to educate their children at home … recognise that home education is of itself not a safeguarding issue, and … acknowledge that in many instance the decision to home educate reflects failures by other institutions of the state.”


I would add that they also must recognise that home education can be very different from school education. You inherently have much more flexibility in the structure. You do not need to follow all the systems and rules which make a school practical. You may choose to do things very differently.

There are local authorities where relationships are very good. One email sent to me, from someone under Gloucestershire County Council, said that the EHE team are a “genuine delight” and that, “Talking to our caseworker just feels like boasting about how well our daughter is doing and being reassured about any concerns I have by a person with a great deal of knowledge and experience of elective home education.” I have also talked to home educators in Coventry who described the team there as “very well liked, at ease with the children and respectful of parents” and said that 85% of home educators ask for a visit because it is an open conversation and a totally supportive experience. As a result, Coventry has a higher than average rate of school attendance orders, because the team in Coventry knows what is going on and home educators, when they know of a problem elsewhere, pass it on to the team because they know that things will be fairly dealt with by the team.

There are other local authorities—I will not name them in public, but if anyone would like to see the documentation I have on them I would be happy, if I have permission, to share it—where the team appears not to have any relevant experience either of home education or of teaching. There is a totally oppositional attitude to home educators and no understanding that the structures of schools do not necessarily apply to home education. There have been extraordinary exchanges between people who do not appear to have sufficient qualifications to be a teaching assistant and a home educator who has been a teacher for 20 years, asking the most ridiculous questions. Under those circumstances, it does not surprise me that the relationship between the local authority and the home education community breaks down; a lot of difficulties arise because of that.

I do not stick to any particular formula in my amendments in this group, but their overall objective is to suggest to my noble friend that there are ways in which the Bill can incentivise local authorities to act well, so that it is easy to be a good local authority. Being a bad local authority is a path that is not conducive to the efficient exercising of its functions, and therefore it gradually becomes one which is not followed.

I note the breadth of powers given to local authorities in the Bill, in particular the ability to make any demand of a home educator under a totally open new subsection that allows them to ask whatever they want and, if the parent does not provide it, to dump them into school attendance order proceedings without any appeal. That is a system in which it would be tremendously easy to be a bad local authority. Local authorities will have total power over home educators, with no one controlling how those powers are used. There will be no incentive for local authorities to improve. I do not think that is a reflection of the long relationships and discussions that the Department for Education has had with home educators. It was immensely surprising to the home education community that the Bill should be written in this way. I very much hope that we will be able to persuade the Government to make some changes.

Amendment 112A and other amendments suggest that there should be a right of appeal—a space in which a home-educating parent can argue in front of an independent tribunal with a local authority. As we are giving local authorities such huge powers, in fairness, there surely must be some form of appeal—some outside oversight over whether they are being reasonable.

Amendment 130A asks that data held by the local authority should be made routinely available to home educators. If we want a good, open, conversational relationship between good home educators and their local authority, sharing information plays a very important part.

We should have available to us, as legislators—indeed, as the Government—data on the penalties imposed by local authorities. That is a very good indicator of the state of relationships between the home education community and local authorities. We need early indicators in the system so that we can see when things are going right or, maybe, not so right.

Amendment 136ZA brings in the phrase “light touch”. This is one much used in conversation between the Department for Education and home educators. I should really like to know what the department means by it. It startles me to think that some local authorities whose work I have looked at could be defined as light touch, but perhaps it can. I need to understand where the department stands on this. I should like an arrangement where the people in local authorities charged with looking after home education had some relevant qualifications and experience.

If you have in a team someone who knows what home education looks like and someone with strong teaching experience, that seems to be the combination, looking nationwide, that works really well in local authorities. The main thing is that the people in the local authority should have enough experience and qualification to feel confident in the judgments they are making. If not, they have to rely on getting out the baseball bat and beating home educators around the head, because they do not understand the arguments being made. Getting qualifications and a level of performance into local authorities is an important aim.

On Amendments 137B and 137C, I say that being able to tip parents into punitive action after just one fault does not seem the right way: there should be a pattern of behaviour that then requires the whips and scorpions to be got out. Amendment 137B states:

“Except in circumstances of deliberate rule breaking, the school attendance order process must be preceded by a process of communication where the education being provided can be adjusted and services under section 436G offered.”


In other words, this should be a supportive dialogue between the local authority and the home educator. Where the home educator is failing, there are conversations about how things could be made better; where the local authority can help with that process, it does; and only if that process breaks down do we get into the punitive provisions. That is the nature of the relationship between home educators and local authorities in a lot of areas. That would be a better template for the legislation: to take the pattern of behaviour which is current in local authorities where there is a very good relationship between home educators and the local authority, rather than the pattern of behaviour exemplified by the more punitive local authorities.

Amendment 137C is another right of appeal. Amendment 138ZA looks at dealing with a child who is in mid-assessment. If a school recommends a child for assessment for special needs, and then the parent withdraws that child because there is clearly a problem in school and they think home education will be better, that process of assessment ought to be completed before the local authority can tip the parent into a punitive process. The process of assessment is entirely in the hands of the local authority; it can make it fast if it wants to. I know a lot of them have long backlogs on this, but that is up to them—they can prioritise a child if they are worried about them—but they should not be able to tip parents into a school attendance order process where they have failed to provide the assessment that the school has said is necessary.

Similarly, if it is clear to a medical practitioner that a mental health assessment is needed—this would be common in the case of people suffering from school refusal or trauma as a result of events at school, when a proper assessment needs to be made—it seems entirely appropriate that the local authority should wait until that process is complete, and until there is not an independent medical professional standing in the way saying, “No, don’t do this now. We don’t know what the right thing to do for this child is.”

Amendment 138A looks at things in a more general sense. It says that this is a really disruptive process for the family and the child. Local authorities really need a proper justification for what they do and need to ascertain where the child stands in this process.

Amendment 143B asks that a refusal of the revocation of a school attendance order must be reasonable. That may be implicit in the law as it stands, but I would be grateful if my noble friend could confirm it.

Amendment 143F argues that if a parent re-offends, the circumstances should be reinvestigated as they may have changed and things may be different. Just having the ability to reimpose an endless series of penalties does not seem in accordance with the general practice of English law.

Amendment 143I gives the Government an opportunity to justify why stronger penalties are needed. We seem to be entering a level of penalties that I find excessive in the context of not sending your child to school, but I would be interested to listen to what my noble friend said.

Although it is not in this group, Amendment 143IA asks that Ofsted should have oversight of the local authorities’ performance on elective home education, which would be a very constructive way of making sure that local authorities were aware that if they fell down seriously, in looking after home educators, somebody would be on their tail. I beg to move.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

The noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I thank the noble Lord, Lord Lucas, for his introduction to Amendment 112A and the many others in this group. Amendment 112A is important, as it gives parents the right of appeal to a local authority that refuses to accept their reasons for why their child is not being taught in school.

I am particularly supportive of the approach taken by the noble Lord, Lord Lucas: to be seen as being open and positive with parents who want to home educate their children. Some years ago, I saw an excellent example while on a study tour of Education Otherwise in California. I visited the American River Charter School, an independent home school based at Sierra community college, north of Sacramento. It was a parent-driven, teacher-supported, not in the mainstream school, the equivalent of an FE college. Many of the students participate in educational field trips and come together to do lab work with supervising teachers, but only if the parents want it.