Children and Families Bill

Lord Low of Dalston Excerpts

Tuesday 2nd July 2013 Lords Chamber

[Lord Low of Dalston]

My Lords, I too shall concentrate on Part 3 of the Bill. When the DfE published its Support and Aspiration Green Paper in 2011, there were high hopes among parents that there would be a genuine transformation in the support available to disabled children and children with special educational needs. The Green Paper held the promise of a single, accessible system of joined-up support, delivered through an education, health and care plan. We were promised that parents’ endless battles with bureaucracy would be consigned to the history books and instead a system characterised by simplicity and transparency would be ushered in.

In 2011, the SEN and disability sector broadly welcomed the ambitions of the Green Paper, with its proposals to create a more coherent, joined-up approach to meeting the needs of children and young people with special educational needs and disabilities. Overall, however, while the Bill obviously moves in the right direction in a number of ways—notably with the introduction of education, health and care plans—the sector does not feel that the Bill delivers on the original objectives of the Green Paper or that, as drafted, it fulfils the Government’s ambition to create a better co-ordinated and less adversarial system. The sector feels that the Bill is too focused on education-related services and does not provide an adequate framework to draw health and social care services into the system of support for children with special educational needs.

Unless this is addressed, the Bill will simply replicate and reinforce the fragmentation in the current system. The charity Scope goes so far as to say that the Bill as it stands will fail the vast majority of children with SEN—notably the 87%, or 1.4 million—who will not be eligible for the new plans; nor in some areas does it protect the existing rights of children, young people and their families. During debates in the Commons, the Minister undertook to consider a number of issues, but the Every Disabled Child Matters campaign and the Special Educational Consortium believe that the Bill still requires major improvement if it is to deliver the Government’s stated aim of better outcomes for children and young people with SEN.

As currently drafted, there is a risk that the Bill will make things worse. I have to tell the Minister that there is a real sense of frustration and disappointment out there at the Government’s lack of serious engagement with the many reasonable points put to it—notably, as has been mentioned, by Robert Buckland MP—so I very much hope that we will be able to do a good deal better now that the Bill has reached your Lordships’ House.

I have about half the time that I was banking on for my speech, so I will skip over the things I wanted to welcome. Like the noble Lord, Lord Storey, I was deluged over the weekend by briefs calling for literally dozens of amendments to the Bill. I shall mention five areas by way of putting down markers for where I shall wish to see amendments in Committee. It is beginning to get repetitive by this point, so I will touch on them only briefly, but it reveals a consensus that is developing across the House about the changes that need to be made. Before I do that, as vice-president of RNIB, in which I declare my interest, I shall flag up the need to mirror in this Bill the requirement on local authorities in the Care Bill to maintain registers of visually impaired people.

Now for the changes. First, the Bill undermines current entitlements. I will give just three examples. As the noble Lord, Lord Touhig, said, Clause 21(5) raises the bar for accessing therapies that are vital for some children if they are to be able to access education. Secondly, Clause 34(9) means that special academies will be able to admit children or young people without having their SEN statutorily assessed or an EHC plan put in place. This creates a risk that children and young people will be inappropriately placed in special schools and undermines the principle that mainstream settings must be inclusive for all children and young people.

Thirdly, local authorities will no longer have to comply with all the current requirements in relation to statutory assessments, including time limits and consulting relevant professionals.

On the second change, like the noble Baroness, Lady Hughes, I am concerned that despite calls from the Education Select Committee, the Bill fails to bring disabled children and young people who would currently be covered by special education legislation within its scope. Research has estimated that in the region of 25% of disabled children may not have SEN, but it is just as vital that they have access to support for their health and social care needs. A good example of where the Bill is deficient in this respect is the way in which Clause 30 provides that the local offer has to include only information on services for children and young people with SEN, not services that disabled children and young people might need to use.

Thirdly, still following in the footsteps of the noble Baroness, Lady Hughes, although the noble Lord, Lord Rix, was prophetic in his anticipation of what I was going to say, the EHC plan is not yet a single plan across all three areas. Under the Bill, it remains essentially an education plan. It is not the radical reform that the Government promised and that parents were expecting. To achieve that, it needs to be amended in two ways. First, it needs to establish a duty on local authorities not just to deliver the educational provision set out in the EHC plan but to assess the social care needs of a child or young person and deliver the support identified as necessary. Secondly, it needs to provide a single route of appeal for parents, children and young people to challenge decisions about the content of EHC plans.

Fourthly, provisions relating to the local offer are too weak. Clause 30 requires local authorities to produce information on the education, health and care services that it expects to be available locally. That is known as the local offer. As such, it is purely descriptive of the services that the local authority currently has on offer. Local authorities need to be under more of an obligation to identify the needs that exist in their area and ensure that they have the services in place to meet those needs. The Bill needs to be strengthened to ensure that children and young people and their families can hold local agencies to account for the delivery of those services.

Fifthly, and finally, there is the collapsing of the present two tiers of school support, school action and school action plus, into a single category of additional SEN support. The Government are yet to produce any evidence that that will lead to any improvement in educational outcomes on the present system based on early intervention and a graduated approach. Indeed, there is a risk that it will lead to a degradation of the present system of support. As the noble Baroness, Lady Hughes, said, that concerns the majority of children with SEN—84%—who receive additional support from the school’s own budget, so we need to be sure of what we are doing here.

The pathfinder pilots were set up in September 2011 to provide the evidence on which to base the development of the new system. To date, the evidence is very thin. We do not even have basic data such as the types of needs that children have and the type of education that they are receiving. How can authorities be expected to plan with any degree of confidence in those circumstances? We must remember that the 31 local authorities involved in the pathfinder pilots were motivated to put themselves forward to test the new system and are receiving additional resources to do so. What hope will there be for the local authorities that do not have those advantages?

This is the nub of the matter. The pathfinders will not finalise their report until September 2014. That is the date when the new system is supposed to come into force. It seems essential that there is a delay in implementation if we are to get this right. As other people have said, what happens now will affect the lives of children, young people and their families for a generation, not just the term of a Government.