Children and Families Bill

Lord Low of Dalston Excerpts

Wednesday 23rd October 2013 Grand Committee

Moved by

[Lord Low of Dalston]

65B: Clause 19, page 18, line 30, at end insert—
“( ) whether the child is a disabled person for the purposes of the Equality Act 2010 and, if so, the obligations falling on the local authority as a result including any obligations under section 20 of that Act (namely the duty to make reasonable adjustments).”

[Lord Low of Dalston (CB)]

My Lords, having laboured, not without difficulty, up the lower slopes of this major and compendious piece of legislation, we come at last to a major plateau where we can either take our rest or chafe at the impediment it still constitutes on the way to the summit.

I refer to Part 3, on special educational needs. I describe it as a major plateau because more than 200 amendments to Part 3 have been tabled for debate in 35 groups. I fear that I am responsible for more than 20 of them. At the current rate of progress, that should take us a good five days. Perhaps that is not so bad; four were allowed for in the Committee calendar. I certainly do not intend to hold up progress any more than necessary. I just observe, however, that the fact that there are so many amendments testifies to concern that the Bill is not yet in a fit state to go on to the statute book if it is properly to serve the needs of the children and young people whose lives and futures it deals with; to disappointment that the Government have not been more responsive to concerns raised so far; and to the hope that we will see more movement as the Bill passes through this House, so that its passage into law does not need to be delayed beyond the timescale that the Government have in mind.

Let us see whether we can get four amendments out of the way without more ado. I am moving Amendment 65B and speaking to Amendments 87, 90A and 105. Amendments 65B, 67 and 105 would ensure that the Bill covered children and young people who have a disability under the Equality Act 2010 but do not have a special educational need. The language varies slightly, and this is just a random selection of places in the Bill where children and young people with a disability but not a special educational need could be inserted. Clause 19 deals with local authorities’ role in supporting and involving children and young people, Clause 26 deals with joint commissioning arrangements and Clause 30 concerns the local offer. In that sense, they are probing amendments to gain more understanding of the Government’s reasons for introducing a Bill that deals with children with special educational needs but not with children and young people with a disability who do not have special educational needs. Amendments 65B and 90A also ensure that the principal obligation owed by local authorities by virtue of the Equality Act to children and young people with disabilities but not a special educational need—the duty to make reasonable adjustments —is covered. Amendment 90A, in particular, is designed to ensure that the reasonable adjustment duty is firmly integrated into the planning of education, health and social care services.

Part 3 applies to children and young people with special educational needs. Children and young people with special educational needs are defined in the Bill as those who have a significantly greater difficulty in learning than the majority of others of the same age or a disability which prevents them from making use of the educational facilities usually available in that area. Although many disabled children and young people are covered by that definition of SEN, some are not. For example, the following children would be disabled but have no special educational need: a child with a physical disability whose school was completely accessible to them or a child with a serious health condition that does not impact on their learning or ability to access the school premises. That group could include those with epilepsy, asthma, diabetes or a motor or musculoskeletal disorder, all of which might require medical treatment or therapies to be administered in school, possibly alongside a social care package at home, but would not require any educational interventions.

Research from the universities of Bath and Bristol, commissioned by the DfE itself, estimated that around 25% of disabled children do not also have special educational needs. The impact of this omission is that the Bill will require local authorities and clinical commissioning groups to plan jointly under Clause 26 and review under Clause 27 provision for the 75% of disabled children and young people with SEN but not for the 25% of disabled children without SEN. Under Clause 30, local authorities must set out a local offer of services available for the 75% of disabled children and young people with SEN but not for the 25% without SEN. The Bill thus creates a dividing line between children with SEN and disabled children without SEN and, as a result, certain things must be done for one group and not the other.

As well as being unfair, leaving disability out of Clauses 26, 27 and 30 does not make sense on a practical level. The label SEN is simply not used by social care or health commissioners. For example, under the Children Act 1989, social care services are delivered to disabled children, not children with SEN. Locally, the Bill as currently drafted will lead to confusing arguments about whether a service is for children with SEN or only for disabled children. There would be no additional cost to including disabled children without SEN in the duty to review services or jointly commission services. It could even end up saving money by creating a more streamlined system.

There are three things wrong with leaving disability out. First, as we have seen, in the new world of integrated education, health and social care, it will lead to confusion and unnecessary boundary disputes. Secondly, it misses a golden opportunity to rationalise the legislation on SEN and disability. SEN legislation is a river fed by two tributaries—SEN legislation itself and disability discrimination legislation. These overlap to a significant extent—some 75% as the universities of Bath and Bristol have shown—but not entirely. This Bill would be a perfect opportunity to bring the two streams together into a single, more coherent framework. Thirdly, leaving disability out goes back on what was promised in the Green Paper on SEN and disability.

This promised a new deal for children with SEN and disabled children. Local authorities would be required to set out a local offer of services available to support children who have SEN or who are disabled. There would be stronger strategic planning and commissioning duties to support children who have SEN or who are disabled. The Bill sets out stronger strategic planning and commissioning duties but, importantly, it does not include disabled children in these clauses, as was promised. I understand that the Government believe that disability is adequately covered in the Bill as a result of Clause 20 but the references to disability there are all to a disability that calls for special educational provision to be made. I fear that does not really bring in those with disabilities but without SEN.

Finally, to hammer the last nail in, it should be noted that the Education Select Committee, in its pre-legislative scrutiny, was in favour of including disabled children without SEN. It said:

“The evidence makes a strong case to include disabled children, with or without SEN, in the scope of entitlement to integrated provision … We recommend this”.

I hope very much that the Minister will review the legislation with a view to bringing in this important category of children and young people. and thereby making the legislative framework a lot more coherent and practical. I beg to move.

[Lord Storey (LD)]

My Lords, I shall speak to Amendments 67 and 68. The current test in the Bill for whether someone has special educational needs is whether they have a learning difficulty or a disability that would require special educational provision, defined in Clause 21 as,

“educational or training provision that is additional to, or different from, that made generally for others of the same age”.

Amendment 68 would mean that the test of whether someone has a special educational need would be based not on whether they need special educational provision but, instead, on whether provision has to be made for them to access education. What is the difference? Someone could have barriers to their accessing education which do not require,

“educational or training provision that is additional to, or different from, that made generally”.

For example, simply being unable to access a class, due to stairs, for a wheelchair user, is nothing to do with education or training provision but instead about their ability to access education.

Why do I think that this amendment is important? When the Government originally published their proposals for the Bill, when Sarah Teather was the Children’s Minister, the focus was very much on special education and disability needs. The Government have said that this does not prevent the provisions being applied to disabled children when there are barriers to them accessing education. Clause 20 includes disabled children as people who have special educational needs. However, clarity is needed about what might constitute a barrier to education. Are we just talking about things such as additional support—Braille, and so on—or do we include the simple ability to get to a class or get through a lesson due to a spinal problem? This amendment is a probing one to clarify that educational or training provision includes the ability to access education and does not apply only to the actual classroom or teaching session.

I move on to Amendments 220, 221 and 222. Your Lordships all get letters, briefings and, in some cases, speaking notes from a whole host of organisations. I am always amazed at the fortitude of those organisations in campaigning, rightly, for what they really believe in. But sometimes, in the barrage of the correspondence, we get personal letters or comments from individuals who are not part of a gigantic campaign—they are individual snapshots of how that person feels. One such letter came to me some time ago, about allergies. I remember in my own school children with nut allergies. Knowing nothing about it, I did a bit of exploration and realised that this was very serious. If they had an allergy, we needed to make sure that their photographs were pinned up by the canteen and that the Epipen that they needed to save their lives was readily available.

I want to read you this letter from a child, whose name I shall not mention, because it shows how important it is that no child with a medical condition should be prevented from having full-time school provision. The letter says:

“Since the age of 9 months I have had to use the EPI-PEN 13 times. Regardless of all my allergies I have always had a positive attitude to life, and that’s how my mum has always taught me to help me learn how to live in the bigger wider world and my dad has always taught me to smile. Because of this I have been able to live my life to the fullest and we have travelled and had fun whilst doing many exciting things. Nursery, primary and my first year of high school were great and memorable years and the schools have always managed with my allergies.

Now we zoom into 2013 and let’s see what’s going on now. We’ve moved in a new area and my mum applied for schools in our area as they were more nearer to home, we didn’t get the schools we applied for but in the meantime I was offered a place in another school straight away. But all the staff in my new school are worried about my allergies and they aren’t giving me a starting date, it’s been 8 weeks I’ve been out of school and still don’t know when I’m starting!”.

I read that letter as an example of how a medical condition, which the school should cater for, is preventing that poor little girl being able to get to school.

--- Later in debate ---

[Lord Nash]

I am happy to stimulate that discussion. The guidance will make clear our expectation that schools, local authorities and health professions work together in the interests of the child. That is essential. I am happy to discuss this further with the noble Lord.

[Lord Low of Dalston]

My Lords, this has been quite a long debate. We have been going for nearly a couple of hours. It has been a very wide-ranging debate. I have not totted up the number of amendments that have been spoken to, but it seems to be 10 or a dozen. I am sure that at this advanced stage in the Committee’s deliberations this afternoon, your Lordships would not want me to make a full response on all the amendments that have been spoken to and to which the Minister has responded. I am not quite sure whether that is my role or whether I should simply respond to my own amendment, although I will not do even that in any detail. A lot of observations have been made and the Minister has responded. I believe that we all will want to read what everyone has said and what the Minister said in his response to this wide-ranging debate. Then we will know to what extent we want to focus on issues on Report. Certainly, a great many issues have been raised and I am sure that we will wish to return to some of them after having read and reflected on this debate. Having said that, I beg leave to withdraw my amendment.

Amendment 65B withdrawn.

Moved by

[Lord Low of Dalston]

65C: Clause 19, page 18, line 30, at end insert—
“( ) the distinction between children for whom parents have some legal responsibility and young adults who must be supported to participate as fully as possible in their own right, in decisions relating to the exercise of the function concerned.”

[Lord Low of Dalston]

It is me again so soon. Amendment 65C is the only amendment in this group, which means that I should be able to speak to it somewhat more briefly. The amendment is about the rights of disabled young adults. In using the term “disabled people”, I include those with SEN. Referring to disabled people will help to anchor the notion that the Bill, as we discussed as regards the previous group, should be about disabled people without SEN as well as those with SEN.

The Bill does not clearly distinguish between the rights of children and those of young adults. As the age range covered by the Bill goes from birth to 25, the rights of young adults need to be clearly differentiated. Parental responsibility for decision-making is in place until the age of 18. While that is subject to some flexibility in certain areas, such as consent to medical treatment and Gillick competency, the position is different from that relating to those aged more than 18 who have their own rights and responsibilities, and where parents do not have a specific legal role unless the young person lacks competency.

I am concerned that the Bill does not make this distinction clearly enough. Therefore, it has the potential to blur the right of young, disabled adults aged more than 18 to be involved in decisions about their own education. Amendment 65C makes clear that disabled young people must be consulted and involved in their own right, and supported to participate as fully as possible in the process. Other young people would not expect decisions about their future to be made for them, so nor should this be the case for disabled young people. I beg to move.

[Baroness Northover]

My Lords, I am grateful to the noble Lord, Lord Low, for tabling this amendment. The SEN provisions bestow important new rights on young people—that is, those over compulsory school age—for the first time and the noble Lord is right to draw our attention to the distinction that we are making here.

I assure the noble Lord that the Bill already makes the distinction between children in relation to whom decisions are made by their parents and young people who make those decisions themselves. A local authority would be in breach of its duties if it failed to make such a distinction. Clause 27 requires local authorities to consult young people when it reviews its special educational provision and social care provision. Regulation 4 of the local offer regulations is very clear that local authorities must consult with young people directly over the local offer. That may be an implementation challenge for many local authorities but it does not require a change to legislation. For young people with education, health and care plans, which may be particularly relevant to what the noble Lord has just raised, it is they, not their parents, who must be consulted about their assessment and plans.

It would be impossible for a local authority to fulfil its statutory duties under these clauses without having due regard to the distinction between children and young people. The draft code is also very clear on this point: paragraph 3.2 says:

“Where there is a conflict of interests between the young person and the parent, it is the view of the young person that prevails”.

Parents are not ruled out, of course; they can still support and help a young person in whatever way the young person wants them to. Chapter 3.2 of the draft code acknowledges that,

“some young people will need support from a skilled advocate to ensure that their views are heard and acknowledged”,

and Chapter 3.3 says it is clear that,

“staff working directly with young people should be trained to support them and work in partnership with them, enabling them to participate fully in decisions about the outcomes they wish to achieve”.

I hope that this reassures the noble Lord, and I urge him to withdraw his amendment.

[Lord Low of Dalston]

My Lords, there seems to be a good deal in the Minister’s response that should potentially provide quite a bit of reassurance. I want to read it, but I certainly do not intend to argue the toss about it or prolong the debate at this stage. I am happy to beg leave to withdraw my amendment.

Amendment 65C withdrawn.

--- Later in debate ---

Moved by

[Lord Low of Dalston]

65D: Clause 19, page 18, line 30, at end insert—
“( ) the need to continue to develop an inclusive system where parents of disabled children have increasing access to mainstream schools and staff and which have the capacity to meet the needs of disabled children.”

[Lord Low of Dalston]

My Lords, I shall also speak in support of Amendment 157B, which was tabled by the noble Baroness, Lady Howe, and is a slightly rejigged version of Amendment 157A, which is somewhat improved, at the suggestion of the DfE, by putting the inserted words at the end of Clause 39(4) rather than at the beginning. I also added my name to the noble Baroness’s Amendment 219, but I shall not say anything about that, except to signify my support because there will not really be time, and in any case I have to leave her something to talk about.

Amendment 65D enshrines a recommendation of the Joint Committee on Human Rights. Under the UN Convention on the Rights of Persons with Disabilities, states undertake to,

“ensure an inclusive education system at all levels”,

and are required to ensure that:

“Persons with disabilities can access an inclusive … primary … and secondary education on an equal basis with others in the communities in which they live”.

One of the principal obligations undertaken by states under the convention is:

“To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the … Convention”.

In relation to the right to education, states are also under an obligation to,

“take measures … with a view to achieving progressively the full realization of these rights”.

When the UK ratified the convention—in 2009, I think it was—it entered a reservation and interpretive declaration to the right to inclusive education, but the terms of its declaration made clear that the UK accepted the obligation of progressive realisation of the right to inclusive education. Clause 33 retains the current statutory presumption in favour of education in a mainstream setting, but this has been the subject of continued debate and considerable litigation. The frequency of such litigation about the presumption in favour of mainstream education suggests that the current state of the law and guidance leaves considerable scope for uncertainty. If scope for such uncertainty exists, the UK’s obligation under the UN convention to take steps to increase access to mainstream education for people with disabilities might require the Government to remove the uncertainty by clarifying the law and/or the relevant guidance.

--- Later in debate ---

[Lord Nash]

We do not accept it. We feel that we deal with it in the provisions that I have mentioned. I will be happy to discuss this further.

Inclusive and accessible provision is clearly an issue that many noble Lords feel strongly about and have genuine concerns. I hope that I have explained how the Government are approaching the issue and the steps that we are taking. As I said at the beginning of my response, I welcome the opportunity to meet noble Lords and will be happy to do so further on this point. In view of what I have said, though, I would be grateful if the noble Lord could withdraw his amendments.

[Lord Low of Dalston]

I am grateful to all those who have spoken unanimously in support of these amendments. I am particularly grateful to the Minister for his painstaking and comprehensive response. However, I am slightly reminded of a meeting that we had with DfE officials, before the Minister’s time, when after the meeting I said to someone, “How do you think that went?”, and he said, “Well, I think they agreed with everything we said provided it didn’t mean they had to change the Bill”.

I acknowledge straight away that we are in the same place, including the Minister and those on this side of the Table, in our support for the principle of inclusion, and that is a good thing. The Minister ran through a large number of measures that the Government are taking in support of the principle of inclusion, some of them legal and some of them other forms of support. I am inclined to regard them as what you might call “soft” measures—soft support for inclusion. However, the Minister wanted to steer away from anchoring the principle too firmly in hard law in the Bill. We were not seeking law that was too hard; the JCHR’s amendment is couched in terms of general principle and is not very coercive.

Amendment 157B simply seeks to achieve a common approach between the unsuitability limbs and the incompatibility limb by applying the “reasonable steps” obligation in relation to both of them. It is incontestable that both ought to be approached in the same way; it does not make sense to have a “reasonable steps” operation in relation to one but not the other. That is the position at the moment and we have an opportunity to put it right. There cannot be an objection to having a “reasonable steps” obligation at all in the legislation because it is there at the moment. What is wrong with the legislation is it is there in relation to one ground of objection but not the other; it seems only sensible to apply it to both. Then there is Amendment 219, which, as we have heard, is more wide-ranging.

I should not overlook the fact that the Minister made some reference to anchoring the principle of inclusion in legal form in the legislation, but it took the form of schools using their best endeavours. My heart sank a bit at that point, because it seemed to take us back to the Education Act 1981, which made the first tentative steps in legislation towards enshrining the principle of inclusion in legislation. There it was enshrined in terms of schools and authorities using their best endeavours. As the Minister made clear, we have moved on a bit since then, so to offer a best endeavours provision as a consolation prize for us in tabling these amendments is a bit disappointing.

However, I am grateful to the Minister for his offer to meet us to have discussions on these issues before Report. I am sure that we are all in the same place in wanting some clear recognition of inclusion in the legislation, and I hope that by a process of discussion we can come to agreement on a form in which to enshrine that in the legislation. On that basis, I am happy to beg leave to withdraw the amendment this evening.

Amendment 65D withdrawn.