New Clause 9 — Transfer of EHC plans

Children and Families Bill – in the House of Commons at 1:15 pm on 11th June 2013.

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‘(1) Regulations may make provision for an EHC plan maintained for a child or young person by one local authority to be transferred to another local authority in England, where the other authority becomes responsible for the child or young person.

(2) The regulations may in particular—

(a) impose a duty on the other authority to maintain the plan;

(b) treat the plan as if originally prepared by the other authority;

(c) treat things done by the transferring authority in relation to the plan as done by the other authority.’.—(Mr Timpson.)

Brought up, and read the First time.

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission

With this it will be convenient to discuss the following:

New clause 8—Support for children with specified health conditions—

‘(1) The governing body of a mainstream school has a duty to produce and implement a medical conditions policy that defines how it plans to support the needs of children with specified health conditions.

(2) The medical conditions policy must include provision about—

(a) the means by which records of the specified health conditions of children at the school are to be recorded and maintained; and

(b) the preparation of an individual healthcare plan for each child with a specified health condition which sets out the needs of that child arising from that condition.

(3) The medical conditions policy must include requirements relating to the provision of appropriate training for school staff to support the implementation of individual healthcare plans.

(4) In preparing an individual healthcare plan the governing body must—

(a) consult the parent of the child concerned and, where appropriate, the child about the contents of the plan; and

(b) there shall be a duty on NHS bodies to co-operate with the governing body in its preparation and implementation of individual healthcare plans.

(5) Local authorities and clinical commissioning groups must co-operate with governing bodies in fulfilling their functions under this Act.

(6) The Secretary of State may by regulations define “specified health conditions” for the purposes of this section.

(7) For the purposes of this section “NHS bodies” has the same meaning as in the Health and Social Care Act 2012.’.

New clause 21—Inclusive and accessible education, health and social care provision—

‘(1) In exercising a function under Part 3, a local authority and NHS bodies in England must promote and secure inclusive and accessible education, health and social care provision to support children, young people and their families.

(2) Regulations will set out requirements on an authority and its partner NHS commissioning bodies to promote and secure inclusive and accessible education, health and social care provision in its local area, in particular through—

(a) the planning;

(b) the design;

(c) the commissioning or funding;

(d) the delivery; and

(e) the evaluation of such services.’.

New clause 24—Publication of information relating to Special Educational Needs tribunal cases—

‘(1) The Secretary of State must collect information on all cases related to special educational needs which are considered by the Tribunal Service, including—

(a) the local authority involved;

(b) the cost to the Tribunal Service;

(c) the amount spent by the local authority on fighting each case;

(d) the nature of each case; and

(e) the outcome of each case.

(2) The Secretary of State must collate and publish information collected in the exercise of his functions under subsection (1) once a year.

(3) The following bodies must make arrangements to provide such information to the Secretary of State as is necessary to enable him to perform his functions under this section—

(a) the Tribunal Service;

(b) local authorities.’.

Amendment 59, in clause 19, page 18, line 22, at end add—

‘(e) the right of the parent to make their own arrangements for some or all of the special educational provision under section 7 of the Education Act 1996.’.

Amendment 39, in clause 21, page 19, line 16, leave out ‘wholly or mainly’.

Amendment 60, in clause 23, page 19, line 29, leave out ‘may have’ and insert ‘probably has’.

Amendment 61, page 19, line 32, leave out ‘may have’ and insert ‘probably has’.

Amendment 46, in clause 27, page 22, line 3, at end insert—

‘(2A) If the education and care provision provided as part of the local offer is deemed insufficient to meet the needs of children and young people under subsection (2), a local authority must—

(a) publish these findings;

(b) improve that provision until it is deemed sufficient by—

(i) those consulted under subsection (3); and

(ii) Ofsted.’.

Amendment 62, in clause 28, page 23, line 29, at end insert ‘;

(n) Parent Carer Forums.’.

Amendment 66, in clause 30, page 24, line 21, leave out ‘it expects to be’ and insert ‘which is’.

Amendment 67, page 24, line 24, leave out ‘it expects to be’ and insert ‘which is’.

Amendment 30, page 24, line 34, at end insert—

‘(f) arrangements to assist young people and parents in managing a personal budget should they choose one.’.

Amendment 68, page 24, line 39, at end insert ‘, including in online communities.’.

Amendment 69, page 25, line 7, at end insert—

‘(7A) The Secretary of State shall lay a draft of regulations setting out the minimum level of specific special educational provision, health care provision and social care provision that local authorities must provide as part of their local offer, and the regulations are not to be made unless they have been approved by a resolution of each House of Parliament.

(7B) Once regulations under subsection (7A) have been made, the Secretary of State must—

(a) issued guidance to local authorities on how to meet these regulations, and

(b) publish information on these regulations accessible to the families of children and young people with special educational needs on the Department’s website, and in any other way he sees fit.’.

Amendment 65, in clause 36, page 28, line 21, at end insert—

‘(1A) A person acting on behalf of a school or a post-16 institution (“A”) must request an EHC needs assessment for a child or young person (“B”) as soon as A becomes aware that B has been diagnosed with epilepsy or a related condition.’.

Amendment 40, page 29, line 20, leave out subsection (10).

Amendment 44, in clause 37, page 30, line 8, leave out from ‘provision’ to end of line 10 and insert

‘required by the child or young person.’.

Amendment 41, page 30, line 13, leave out subsection (4).

Amendment 45, in clause 38, page 30, line 35, at end insert—

‘(g) an institution of higher education which the young person has accepted an offer from.’.

Government amendment 17.

Amendment 37, in clause 42, page 33, line 6, at end insert—

‘(2A) If the plan specifies social care provision, the responsible local authority must secure the specified social care provision for the child or young person.’.

Amendment 63, page 33, line 13, leave out ‘suitable alternative arrangements’ and insert

‘arrangements suitable to the age, ability, aptitude and special needs of the child or young person and has chosen not to receive assistance with making provision.’.

Amendment 42, in clause 44, page 34, line 3, leave out subsection (5).

Amendment 43, in clause 45, page 34, line 37, leave out subsection (4).

Amendment 64, page 34, line 39, at end insert—

‘(4A) A local authority must not cease to maintain an EHC plan on the sole ground that the child or young person is educated otherwise than at school in accordance with section 7 of the Education Act 1996.’.

Government amendments 18 to 20.

Amendment 70, in clause 48, page 36, line 21, at end add—

‘(6) This section will not have effect until an Order is made by the Secretary of State, subject to affirmative resolution by both Houses of Parliament.

(7) Before making an Order under subsection (6), the Secretary of State must lay a copy of a report before both Houses of Parliament detailing findings from the pathfinder authorities established under the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012, including but not limited to—

(a) the impact on educational outcomes for children and young people;

(b) the quality of provision received by children and young people;

(c) the value for money achieved;

(d) the impact on services provided for children and young people without EHC plans, or those for whom direct payments were not made.

(8) The Secretary of State may not prepare a report under subsection (7) until September 2014.

(9) An Order made under subsection (6) may amend this section as the Secretary of State deems necessary to ensure the effective operation of personal budgets, having had regard to the finding of the report produced by virtue of subsection (7).’.

Government amendment 21.

Amendment 38, in clause 50, page 37, line 18, at end insert ‘;

(g) the social care provision specified in an EHC plan;

(h) the healthcare provision specified in an EHC plan.’.

Amendment 47, in page 48, line 35, leave out clause 69.

Amendment 71, in clause 65, page 45, line 37, leave out ‘19’ and insert ‘25’.

Amendment 72, page 46, line 11, leave out ‘19’ and insert ‘25’.

Amendment 73, in clause 67, page 47, line 21, leave out

‘such persons as the Secretary of State sees fit’ and insert

‘publicly, for a period of not less than 90 days’.

Amendment 74, page 47, line 22, leave out ‘by them’ and insert

‘as part of that consultation’.

Amendment 75, in clause 67, page 47, line 23, leave out subsections (3) to (8) and insert—

‘(3) A code, or revision of a code, does not come into operation until the Secretary of State by order so provides.

(4) The power conferred by subsection (3) shall be made by statutory instrument.

(5) An order bringing a code, or revision of a code, into operation may not be made unless a draft order has been laid before and approved by resolution of each House of Parliament.

(6) When an Order or draft of an order is laid, the code or revision of a code to which it relates must also be laid.

(7) No order or draft of an order may be laid until the consultation required by subsection (2) has taken place.’.

Amendment 48, in clause 72, page 49, line 46, leave out from ‘education,’ to end of line 1 on page 50.

Government amendments 22 to 25.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

Part 3 of the Bill introduces a much stronger framework for supporting children and young people with special educational needs. These reforms have been widely welcomed, and I am grateful to Members in all parts of the House for their interest in and support for them. We can be sure in the knowledge that the Bill has been significantly strengthened since draft clauses were published last autumn.

We have all met constituents who have had to battle to get the special educational support that their child needs. These reforms are ambitious; they aim to ensure that in future, children, young people and their parents are at the heart of the system, and that special educational provision builds around them, instead of asking them to adjust to the system. It will not always work perfectly in every case, but the pathfinders that I have visited have convinced me that we have a really exciting reform under way—one that challenges local authorities to design a system around those who use it, rather than conform to existing structures and processes. The reforms are also ambitious as regards personal aspirations. The new system will support young people through further education and training, up to the age of 25 for those who need it, and focus much more strongly on independent living and helping them to find paid employment. The provisions extend support to younger years as well, so that children are supported as soon as their needs are identified, from birth onwards, instead of having to wait until they reach school to be assessed.

The reforms provide the foundation for a system in which children and young people’s needs are picked up early; parents know what services they can reasonably expect their local schools, colleges, local authority, and health and social care services to provide, without having to fight for the information; those with more severe or complex needs have a co-ordinated assessment built around them and a single education, health and care plan from birth to 25; and parents and young people have greater control over their support. I believe these ambitions are shared across the House.

We had a wide-ranging, constructive debate on Second Reading, and the Committee sittings were passionate, knowledgeable and helpful. I hope that today we can build on the broad consensus that has characterised the debate to date.

We have also listened carefully to the views expressed by Members of the House, parents and young people, and many of the organisations supporting them, and we have acted to improve the SEN provisions following pre-legislative scrutiny and as the Bill has made its way through the House.

Photo of Mark Tami Mark Tami Opposition Whip (Commons), Opposition Pairing Whip (Commons)

The Minister may recall that he kindly met me to discuss my particular concerns about children who had suffered from cancer and perhaps missed quite a large amount of school but did not fit in with the SEN criteria. What level of support could they expect under these proposals?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I recall the constructive meeting that I had with the hon. Gentleman and he will remember that I gave a commitment then to work with him and with organisations with which he has been working with great astuteness to see what more we can do through the code of practice and other means to provide the additional support that we all want to see so that no child, particularly a child with cancer, misses out on the opportunity to fulfil their potential, and I will continue to work with him to achieve that.

Following the Education Committee’s thorough and well-argued report—another one—in December, we amended the Bill in several ways. By virtue of clause 19, we introduced a requirement for local authorities when exercising a function under part 3 to have regard to the views, wishes and feelings of a child and his or her parent, or of the young person, and the importance of them participating as fully as possible in decisions, and being provided with information and support to enable them to do so—an important set of transcending principles.

We have clearly specified the right of parents and young people themselves to request an assessment for special educational needs, to remove any uncertainty. We have ensured that young people on apprenticeships can receive support through an education, health and care plan. We have enabled independent special schools and specialist colleges to apply to be on a list of institutions for which parents and young people with education, health and care plans could express a preference. We have changed our approach to mediation so that parents and young people must consider mediation but do not have to take it up and can go straight to appeal to the tribunal if they wish without prejudicing their position.

To ensure that services are responsive to families’ needs we added a requirement for local authorities to involve children, young people and parents in reviewing the local offer and to publish their comments about the local offer and what action they will take to respond, and we made provision for the SEN code of practice to be approved by Parliament by way of negative resolution.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill

I apologise for missing the first two minutes of the Minister’s speech. He outlines responsibilities that have rightly been referred to various public agencies, but I find it somewhat confusing that nowhere can I find, either in the new clause or in the amendments, any reference to advocacy. I might have missed something, but what role do the Government see for advocates in the situations that we are discussing?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

The right hon. Gentleman raises an important point. Advocacy comes in different forms. We have advocacy in relation to the legal process, and legal aid will still apply up to the point of tribunal for those who require legal advice. There is also advocacy in terms of trying to navigate the system. One thing that we are doing in relation to the pathfinders is to see who can help co-ordinate and navigate for parents and young people in a system that often has been too impenetrable, labyrinthine and drawn out. That could be through a key working role or through the work that the special educational needs co-ordinators carry out so effectively in so many of our schools. It is a practical response to the problem that we know exists while ensuring that the advocacy that is currently available for the legal process continues into the future. We set that out in Committee and I encourage the right hon. Gentleman to look carefully at what we said.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

Will the Minister reassure some local authorities that the proposal will still ensure integration between the 1970 legislation, the Children Act 1989 and this Act, and make sure that there is not a silo system that does not have the integrated service that we all so want?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

My hon. Friend touches on the heart of the Bill, which is to tackle the perennial problem of special educational needs, in that education, health and social care have tended to work in parallel rather than in conjunction with one another. In many of the clauses, both through the general duty to co-operate, the joint commissioning clause, and now the duty on health as well as the duty to consult parents and children themselves, there is already, with the pathfinders, a growing involvement of each of those different agencies in coming together and concentrating on the central and most important issue, which is the child. I hope he will see that the Bill gives local authorities an opportunity to nurture and grow their relationships with health and other agencies, and ensure that as a consequence they are providing better services for children in their local area.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I thank my hon. Friend on behalf of the Education Committee for taking such a positive and constructive approach to our pre-legislative scrutiny report, and implementing so many of the proposals, as he has just listed.

My hon. Friend appeared before the Committee this morning in our inquiry into school sports, and he suggested that he would consider looking at the code of practice to ensure that rather than disabled children being sent to the library while others are doing sport, as we heard in evidence sometimes happens, they have access to sport in schools, and that that is part of an overall package to meet their needs.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

As ever, I am grateful to the Chair of the Education Committee for raising a crucial element for many young people with a disability, and that is access to other activities outside those of the classroom. I am mindful of that and as I told the Committee this morning have seen for myself, at a special school in Chislehurst only last week, how the integration of sport in schools, where children with both physical and other disabilities are able to participate, can have a huge knock-on effect in other areas of their life. It would not always be appropriate through the identification of the needs and therefore the support for each child in relation to their plan to have a built-in element that incorporates and encompasses physical activity, but clearly we want to provide as much opportunity for them as for any other child. The schools should be doing it anyway under the Equality Act 2010 and the reasonable adjustments for which they are responsible, but it also makes good sense, as we know. I am happy—I made this commitment to the Committee—to look at that in the context of the code of practice, but also to work with many of the organisations and charities who are already out there, through the project ability scheme and others, to see what more they can do to spread good practice in this area. I am happy to keep my hon. Friend informed of that process.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

As has been mentioned, the Select Committee held a series of pre-legislative scrutiny meetings. Is the Minister satisfied that there are sufficient accountability mechanisms for agency co-operation, and that the appropriate agency will automatically take the lead? How will that work out in different cases?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

Briefly to disaggregate my hon. Friend’s two points, clearly it is important that we know what is happening in schools on the delivery of SEN provision, and since September 2012 we have had a strengthened Ofsted framework that seeks to do that. I and my colleague in the Department of Health want to explore what more we can do to try to bring about a more multidimensional accountability and inspection regime for special educational needs that goes beyond the school gates and looks at it across education, health and social care, so there is more that we can do in that area. The Education Department is also looking at some of the destination measures in schools as a way of ensuring that we do not miss out on understanding the progress of children who sometimes fall below the radar because they do not count towards any of the measures of success that the school is being marked against. We need to get around that and make it more explicit that every child needs to be making progress whatever their ability, and there is no reason why all of them should not be doing so, and every school has a responsibility in that regard.

We made further changes in Committee, where I was pleased to include a specific duty requiring those responsible for commissioning health provision to secure the health care provision education, health and care plans. This is a hugely significant change and has been widely welcomed. Srabani Sen, board member of the Every Disabled Child Matters campaign and chief executive of Contact a Family, when giving evidence to the Committee on 5 March, said that

“it was phenomenally good news to hear this morning about the duty on health to provide. One of the things that that helps with enormously is bringing people together to work together at a service delivery level”— a point that my hon. Friend Guy Opperman made—

“but it also gives parents something solid that they can use when they are having these discussions with their service providers about how they get the right services for their child. I do not think we can overestimate the potential of what you”—

I think that means me—

“announced this morning. It is phenomenally useful.”––[Official Report, Children and Families Bill Public Bill Committee, 5 March 2013; c. 47-48, Q103.]

The new duty builds on the joint commissioning duty set out in the Bill, which requires local authorities and clinical commissioning groups, and NHS England where relevant, to assess the needs of the local population of children and young people with SEN and plan and commission services to meet them.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill 1:30 pm, 11th June 2013

The Minister has referred several times to the role of local authorities, but the reality is that some local authorities give greater priority to this than others. Because this ought to be—I think that the Government agree—person-centred, considering the needs, rights and ambitions of young people, has he had an opportunity to speak with the Local Government Association, for example?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

Yes, I have had a number of meetings with the Local Government Association, the Association of Directors of Children’s Services and other bodies that will be responsible for delivering education, health and care plans and, more widely, SEN provision within their local area. This has been a huge consultative exercise, and one that continues through the pathfinders. One of the messages we have been clear about throughout the process is that legislation, although a key component of long-term, sustainable reform, is not the whole solution. We also need to see—this is happening through the pathfinders and starting to spread outside them as we develop the changes in the system more widely—a recognition that those bodies must play their part at grass-roots level and recalibrate the sorts of relationships that in the past have not been good enough to help deliver the required provision.

Photo of Alison Seabeck Alison Seabeck Shadow Minister (Defence)

I would like to build on the comments my right hon. Friend Mr Clarke made about the role of local authorities. The Royal National Institute of Blind People has raised specific concerns about the registration of visually impaired children—it is worried that some local authorities will do it but some will not. Has the Minister had an opportunity since that was discussed in Committee to have any further conversations with either the RNIB directly or local authorities on that issue?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I will be corrected if I am wrong, but my understanding is that there have been ongoing discussions. We are aware of the issue. As with all organisations that have expressed an interest in the Bill, we have been keen to keep an open dialogue with the RNIB to see what solutions we can find. Many of the solutions will be found at local level. We must accept that some conditions have a high incidence and some have a low incidence, and that can affect the sort of provision available right across the country. The beauty of trying to develop the local offer is that it will make it far more transparent not only in a local area, but across a regional area, so parents and young people will have a greater understanding of what is available to them, how they can access it and, if they are unable to do so, how they can make a complaint, which in the past has been quite a convoluted and impenetrable process. We must ensure that they have the power to make those decisions.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

I am not sure whether I need to, but I will make a declaration: I have represented about 100 applicants for statements at special educational needs and disability tribunals, and local authorities still owe me money for some of them from before 2010. The simple question that my constituents in Northumberland would like answered, if that is possible, is this: will these proposals make it easier to gain a statement for those parents who have been trying to do so for so long, given that the process has been so convoluted and difficult over the years, as we have all found?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

The short answer is yes. That is the intention of the Bill. There are a number of reasons for saying that. One of the complaints from parents about the statementing process relates less to the statement itself and more to early identification and the need for much greater effort from different agencies in co-ordinating the assessment and the plan. Everything in the Bill tries to encourage that and, in some circumstances, cajole the different bodies to come together and work with the family, rather than, as we have heard far too often, the family feeling that they are working in a different environment from those around them. By ensuring that that happens, we will reduce the prospect of conflict, misunderstanding and, therefore, the road to tribunal, which we all want to avoid. That is why we included the mediation process, albeit on a voluntary basis, to give parents and those responsible for providing services every opportunity to work together, co-operate and consult at every stage, but particularly in the early stages, in order to avoid unnecessary discord and damage further down the line.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

While the Minister is on the subject of conflict between local authorities and parents, may I press him, as many of my amendments do, on home-educating parents, who all too often have been subject to misinformation and abuse of power by local authorities? Will he give serious consideration to including a provision stating that parents who home educate are not to have their children’s SEN support removed and that local authorities, despite their duty to find children with SEN, do not have their powers to demand access to children strengthened? We should reinforce the primacy of parents in deciding what should happen to their children and ensure that local authorities are the servants of families, not their masters.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I have a strong memory of spending a late night in the House a few years ago when my hon. Friend managed to get more than 100 of us to present petitions on behalf of many of those parents who decided to home educate their children. I know that he, as chair of the all-party group on home education, has been a great advocate on their behalf. Clearly we want to ensure that every child with SEN, however they are educated, during the period of compulsory age and beyond, from nought to 25, gets the support they require to meet their full potential. That should be no different in the circumstances he describes. I will be able to respond in more detail when we debate his amendments, and I am happy to continue that conversation with him outside the Chamber.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

On home education and the obvious issues relating to special educational needs, what consideration has the Minister given to registration of those children who are home educated?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I am straying slightly outside my portfolio, but where it impinges on special educational needs clearly we want to ensure that those children receive the support they require. There were attempts in the last Parliament to bring about some form of registration, which was eventually put out to grass. I think we have the balance right at this stage, but of course it is something that my ministerial colleagues who are responsible for these matters will no doubt keep under review.

The new duty in the Bill relating to health commissioning also brings in joint commissioning arrangements, which must include those for securing education, health and care needs assessments and the education, health and care provision specified in the education, health and care plans. The new health duty requires health commissioners to ensure that the health elements of those plans are provided for each individual, thus providing direct clarity for parents that the support their child needs will be provided

We have taken an open approach to the Bill, listened carefully to the views of a wide range of people and made changes to improve it. I know that is the approach that my ministerial colleagues in the other place, including Lord Nash, intend to continue when the Bill makes its way to them. However, before it does we have some important business to conclude in this House today.

I will begin our consideration of the Bill’s SEN provisions by speaking to new clause 9 in a little more detail and to Government amendments 17 to 25. These amendments clarify responsibilities and make consequential amendments to legislation as a result of provisions in the Bill. With regard to new clause 9, it is important that the responsibilities of local authorities are clear when a child or young person with an education, health and care plan moves from one area to another. The new clause provides for regulations to specify those responsibilities. Regulations will make it clear that the new local authority is treated as though it had made the plan. This ensures that plans do not lapse when children and young people move from one area to another and that support for their special educational needs is maintained. I therefore urge the House to support new clause 9.

Amendment 17 to clause 41 has been tabled at the request of the Welsh Government. It would enable independent schools that are specially organised for making provision for children and young people with special educational needs, and specialist post-16 institutions in Wales, to apply to the Secretary of State for Education to be on a list of independent institutions that those with education, health and care plans can ask to be named on their plan. If independent schools in Wales wish to put themselves forward for approval, the amendment will be of benefit to children and young people who live close to the Welsh border whose needs would be best met in a Welsh independent school or those who would be appropriately placed in independent boarding provision in Wales. I urge the House to support the amendment.

On amendments 18 to 20 on personal budgets, I signalled our intention to table these consequential amendments when we debated clause 48 on personal budgets in Committee. The changes they make are necessary because of the changes we made to clause 42 in Committee by placing the duty in clause 42(3) on health commissioners to secure the health provision identified in an education, health and care plan. The amendments allow health commissioners to discharge their duty to make health care provision specified in EHC plans when this provision is secured using a direct payment. This replicates the equivalent provision on local authorities set out in clause 48(5). The amendments clarify that when parents or young people exercise their direct payment, this allows the commissioning body to discharge its statutory duty. The proposed use of the words “having been” in clauses 48(5) and 48(7) makes it clear that the duties on commissioning bodies and local authorities to secure provision are discharged only through the use of a direct payment when the child or young person has actually received the provision, in a manner in keeping with the regulations. I urge the House to support these amendments.

Government amendment 21 relates to clause 49, which inserts new section 17ZA into the Children Act 1989, giving local authorities a power to continue to provide services they have been providing under section 17 to a young person before their 18th birthday to that young person when they are 18 and over. This is a technical amendment that makes it clear that the power in section 17ZA applies only to local authorities in England.

Government amendments 22 to 25 relate to schedule 3 and make further amendments to existing legislation as a consequence of the Bill’s provisions—for example, replacing references to statements and learning difficulty assessments throughout. These are necessary changes to ensure the proper implementation of the reforms in part 3, and I therefore urge hon. Members to approve them.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Education)

It is a pleasure to debate this Bill again, this time on the Floor of the House. In Committee we had some excellent debates on this part of the Bill, in particular. A large number of amendments were tabled by hon. Members on both sides of the Committee, but we were at all times united in our ambition for the children and young people to whom the Bill applies.

It is crucial that children and young people with special educational needs and disabilities be given the support they need to access education and reach their potential, academically and in terms of their physical, social and emotional development. It is not just a moral imperative that leads us to seek those better outcomes for all children; there is also a financial imperative for the whole country. A young person who makes a successful transition to adulthood and has achieved as much as they can educationally is likely to be less in need of welfare, health and social care support and more likely to be able to work and contribute their skills to the economy and their taxes to the Treasury. We support a great many of the reforms that the Government are making to achieve these better outcomes, but we have sought at all stages to ensure that we are going as far as we can, that current rights and entitlements are protected and built on, and that children and young people, and their families, are at the very heart of the changes made and are able adequately to hold agencies to account where they do not get the support they should.

We support the introduction of personal budgets to allow families a greater degree of choice in securing the choice that their child needs. As I said in Committee, I would have greatly welcomed such an opportunity when I was trying to get my severely dyslexic son the support he needed to get through his GCSEs. However, there are serious and abiding concerns about whether they can work in the sense of improving outcomes while providing value for money for the taxpayer, and there are still questions about how the market for support that this reform will create will really look. The Government are running pathfinders in an effort to answer these questions, but they have not been answered yet. Parliament is therefore being asked to legislate for something that we do not know will work and could well be a costly failure.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill 1:45 pm, 11th June 2013

I agree with my hon. Friend about the social, educational and employment needs of young people. On her point about the economy, I wonder whether she is aware that she is supported by the National Audit Office, which has said:

“Supporting one person with a learning disability into employment could, in addition to improving their independence and self-esteem, reduce lifetime costs to the public purse by around £170,000”.

She is therefore speaking very logically.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Education)

I am grateful to my right hon. Friend, who quantifies what we all know and believe is the crux of this issue. He has made a very important point.

Amendment 70 seeks to ensure that these reforms cannot be rolled out until such time as the pathfinders have run their course and provided sufficient evidence on the effectiveness of personal budgets that Parliament can be content in allowing the roll-out to go ahead. I hope the Minister will again take it in the spirit in which it is intended and give a commitment to the House that this measure will not be steamrollered through.

We support the switch from statements to education, health and care plans, extending the maximum age of support for young people to 25 to ensure that it covers further education courses and apprenticeships, and the ambition to encourage joint working between different agencies in drawing up those plans and providing the services described in them. However, there are still some concerns that, as worded, the Bill would give local authorities a get-out clause from providing services to enable young people between the age of 19 and 25 to carry on in education, even where they have not yet achieved to the level we might expect for young people without SENs. Those concerns are addressed by amendments 40 to 43, tabled by Mr Buckland, which we support. I, like him, would be grateful for firmer assurances that prior outcomes, not age, will be the main focus of deciding whether or not to grant or cancel a plan.

My amendments 71 and 72 would ensure that we are measuring the outcomes of young people with plans up to the age of 25 rather than 19, as is currently required under the Special Educational Needs (Information) Act 2008, which is transposed into clause 65. It stands to reason that if we are maintaining support for these young people, we should also know how well that support has helped them. I would be grateful if the Minister committed to how best that might be done within the “special educational needs in England” analysis documents that clause 65 will require the Secretary of State to produce.

Another set of information that should be published as part of the annual report relates to the special educational needs and disability tribunal. I would like parents and campaigners to have access to information on the outcomes and costs to the public purse in tribunal administration and the amount spent by local authorities on legal fees—of the cases that reach that stage—so we can see who the worst offenders are and which local authorities would prefer to pay a lawyer £20,000 to prevent a child from getting £5,000-worth of support. The Minister helpfully pointed me towards some information that was squirreled away on the Ministry of Justice’s website, but as he will know, it is not exactly what I am asking for in this amendment, and in any case the information should be much easier to find and interpret. I therefore hope that he will continue to look at this issue or tell the House why, in an age of transparency, this information should not be available to parents.

We want to reduce as far as possible the current postcode lottery, but still fear that the Government’s plans for local offers, as drafted, could lead to greater disparities in services across the country. We welcome the requirement to compile and publish local offers, but fear that without a baseline expectation from the Department of what should be in them or, indeed, any departmental oversight, they may not be worth the paper they are printed on. As the Education Committee has pointed out, getting local offers right is crucial. If we do not and the services that children and young people need are not provided, we will just see more and more requests for statutory assessments.

Our amendments 66 and 67 would therefore require local offers accurately to reflect what is actually available in the local area, rather than simply what the local authority might say it expects to be available. They would remove the wriggle room that local authorities might have and ensure that they keep the offers under constant review. I hope the issue can be explored further in the other place.

Amendment 69 would require the Secretary of State to set national standards for what the local offers should include. I am no enemy of localism, as the Minister might argue—local offers should absolutely reflect local needs and priorities and be drawn up in consultation with local parent groups. However, if we are to tackle the unwritten postcode lottery, there should surely be a baseline of services that any child or young person anywhere in England should be able to expect. I have said before that local offers may simply codify the unwritten postcode lottery, and that they have the potential to result in a race to the bottom as local authorities look at their budgets and seek to undercut the local offers of their neighbours. I want assurances from the Minister that there will be something—anything—to stop those fears being realised.

Photo of Dan Rogerson Dan Rogerson Liberal Democrat, North Cornwall

The phrase “postcode lottery” is well used in all sorts of policy areas, but does the hon. Lady accept that there is a difference between a postcode lottery and a postcode democracy? In other words, where there is democratic accountability it is not, strictly speaking, a lottery, although I accept some of the hon. Lady’s concerns.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Education)

I accept that that phraseology is probably not appropriate for this scenario, but it is important that the Government consider a baseline so that we do not end up with different levels of service that can be referred to as a postcode lottery.

Amendment 69 also refers specifically to the participation of children and young people with special educational needs or disabilities as a key outcome that local offers should be geared towards achieving. The Minister made some positive comments about this amendment in Committee, so I would be grateful if he provided an update on his work in order to ensure that the need to help these children and young people make the most of the benefits that information communication can afford them is adequately reflected in the code of practice.

We are also concerned about the lack of clarity from Ministers on what will replace the graduated response to SEN in schools—school action and school action plus—which currently provides support to 17% of pupils. Members may know that the answer will lie in the revised code of practice rather than in the Bill itself, and that is why we have tabled amendments 73, 74 and 75, which seek to ensure that the document is subject to thorough public consultation before a final version is actively approved by Parliament, rather than laid under the negative procedure. I hope the Minister will recognise why we feel that is so important, and commit to tabling Government amendments to that effect in the other place.

In addition to our own amendments, I have also signed a number tabled by the hon. Member for South Swindon. As reflected in his valuable contribution to the Committee’s scrutiny of part 3, the hon. Gentleman has a deep passion for and knowledge of the issues, and I find myself agreeing far more than disagreeing with him, despite the fact that we sit on opposite sides of the House. In particular, we are both extremely keen to see some movement from the Government on clause 69, which states that children and young people in custody should not benefit from the reforms in this part of the Bill.

I feel—and I think the Minister agrees—that this is a massive missed opportunity. Many of the inmates of young offenders institutes will have special educational needs. For example, 18% of young offenders have a statement, compared with just 2% to 3% of the general population. At least 60% will have communication problems and a similar percentage will have literacy and numeracy difficulties. Many of those special educational needs will never have been identified, despite the fact that in many cases they were probably a contributory factor to those people finding themselves in this position. As it stands, they will not be able to continue to receive the support they were already getting if they are placed in custody, and nor will they be eligible for an assessment if someone working with them in the institution thinks they need one.

This is not only counter-productive, in that it will severely limit these institutions’ ability to reduce reoffending through education, which is what we want them to do; it is also overly prescriptive—it prevents local authorities from continuing the support they want to provide to a young person in the hope that it will improve their life chances and steer them away from crime and antisocial behaviour.

I dealt comprehensively in Committee with the reason the Minister gave why a plan is not suitable in these circumstances—the need to name an educational establishment in the plan—and I hope he has had a chance to look into the role that virtual academies and courses can play, and at the great work the Nisai Virtual Academy is already doing in this area.

Labour voted against clause 30 in Committee and will be tempted to do so again if the hon. Member for South Swindon wishes to test the will of the House, but I sincerely hope the Minister will respond positively and give us both an assurance that the Government will remove the clause at a later stage. If it is not removed, I fear it will face even tougher opposition from the noble Lords in the other place.

The hon. Member for South Swindon has also tabled amendment 37, which was one of the main bones of contention in Committee. I, like him, believe that education, health and care plans should do what they say on the tin and entitle the holder to expect all of the provisions they detail. At the beginning of this process we fear that they will be no better than the statements they are replacing, and simply provide entitlements to education provision. Ministers had said that there was no way of imposing duties on health bodies to keep up their end of the bargain, but the Minister, to his credit, quickly found a way of placing duties on them to deliver what they are expected to, and improved the plans immeasurably in doing so.

One piece of the jigsaw remains, however: the social care element. Once again, we have an opportunity in this Bill vastly to improve the rights of children and young people and their families in accessing the services they need. Amendment 37 would add the finishing touch to education, health and care plans by placing a duty on local authorities to secure the social care provision detailed within them, meaning that those plans would provide families with the certainty and confidence they need. I urge the Minister to find a way to make that happen.

I also support new clause 21, tabled by the hon. Member for South Swindon, on inclusive and accessible services, a subject on which we had a great debate in Committee; his amendment 39, on what constitutes educational support; and amendment 38, which seeks to create a single point of accountability for all three strands of provision within a plan. I look forward to hearing what he has to say about all the new clauses and amendments when he makes what I am sure will be an excellent contribution.

I also support new clause 8, tabled by Mr Sanders, which centres on provision in schools for children with medical conditions, and which I and my colleagues tabled in Committee as new clause 19. Some 29,000 children in our schools have diabetes, 1.1 million have asthma, 60,000 have epilepsy and many more have heart conditions or suffer from regular migraines or the after-effects of meningitis or cancer, as has been mentioned by my hon. Friend Mark Tami.

Those children and their parents deserve to know that their school can effectively manage those conditions while they are there; that the child will be given their medication, inhaler or whatever they need whenever they need it; that staff will know when they are being affected by their condition; and that allowances will be made for them where appropriate. We do not have a consistent approach to managing medical conditions in schools as yet, and I agree with the Health Conditions in Schools Alliance that this Bill provides an excellent opportunity for the Government to at least look at how schools support these children and, indeed, at how schools are supported to provide that support. We cannot just expect teachers and school staff to know how to do that as a matter of course. They need help from the NHS, which has the experts.

We want much stronger assurances on all the issues covered by those amendments than we received in Committee. Otherwise, they will be revisited in the other place. I look forward to hearing those assurances when the Minister gets back to his feet.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon 2:00 pm, 11th June 2013

It is a pleasure to follow Mrs Hodgson, who rightly said that the Public Bill Committee not only saw a cross-party coming together of minds, but delivered meaningful scrutiny of probably the most important Bill relating to special educational needs that we will see in a generation. It is 30 years since the Education Act 1981 broke the ground after the noble Baroness Warnock made her recommendations. We are in the unique position as legislators of being able to make a step change for the generations to come. That is why it is incumbent on us all to get the detail right.

I thank my hon. Friend the Minister for his constructive engagement with the debate, and not only in the Public Bill Committee. He has engaged not only with Members of this House, but with the disability sector. He has brought understanding and experience to the deliberations of the Bill, which we have enjoyed. I note with enthusiasm his willingness to improve the Bill. As has rightly been said, the Government have introduced important legal duties on clinical commissioning groups to bolt down the health elements of education, health and care plans. That good work goes on today in the form of further amendments.

To get to the meat of the matter, I will deal in turn with each of the amendments that I have tabled; my comments have been foreshadowed by those of the hon. Member for Washington and Sunderland West. I am grateful to her for outlining what I want to say and make no criticism of that at all. Amendment 37, which appears in my name and hers, relates to the social care element of education, health and care plans. It is, as she described it, the last piece in the jigsaw.

I enjoyed the exchange that I had with the Minister about this matter in Committee. It is correct that the groundbreaking Chronically Sick and Disabled Persons Act 1970 contains an important duty that can be applied to social care services for disabled children. However, there is a danger that in failing to link that existing duty with the duties that we are creating, we will not escape the silo effect of assessments. What do I mean by that? There is a danger that a wholly separate social care assessment will continue to be made, without the global approach that I and the Minister believe is the ethos behind the Bill. It would therefore be a missed opportunity if, for want of a few short amendments, we missed this trick.

We should look at this matter from the point of view of the parent of a child who comes fresh to a system of which they have no experience. Surely the thrust of our approach must be oriented around not just the child, but their family. We have heard many stories—I speak from experience—of parents having to reinvent the wheel every time they engage with a separate part of local provision. We must all seek to avoid that. That is why I commend the wording of amendment 37, which would do much to tie together the assessment process in the way that I have described.

On a related theme, and with regard to the point of view of parents and families, amendment 38 deals with the right of appeal against decisions that are made about the creation and ambit of education, health and care plans. The Bill allows the first-tier special educational needs and disability tribunal to hear appeals only about the education aspects of the plan. That means that it covers only part of the plan. I worry that we could end up with a complex and bureaucratic system in which challenges to the health and social care aspects of provision have to be conducted simultaneously through different tribunals, procedures and processes.

I noted with encouragement the Minister’s comments in Committee. I know that the draft code of practice, which is helpfully published alongside the Bill and will be consulted on later this year, states that having a single point of redress for all the provisions in an education, health and care plan would be helpful. He said in Committee that the existing complaints procedures in health and social care meant that it would be unnecessary to extend the powers of the tribunal. However, he made the important concession that a single point of reference would be desirable. That is helpful.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

When the Education Committee considered that aspect of the measures during pre-legislative scrutiny, two issues arose. The first was the difference in culture between education and health. I wonder whether my hon. Friend wants to comment on that, given that we expect education and health bodies to work together and that any accountability process could be complicated. The second issue was that health would have to take the lead in some cases because it would have the overwhelming portion of the responsibility, but the Bill focuses on education.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am grateful to my hon. Friend, because he makes an important umbrella point about the difficulties that could be encountered and that—dare I say it—could be exploited by clever lawyers. I often say that and I have to remind the House that, although I am not sure that I am clever, I must admit that I am of the legal profession. It is proper to concede that point against my profession, because lawyers will be instructed by local authorities that need to conserve their resources and will increasingly look to discharge their statutory duties, but to go no further. We have to avoid the scenario of families having to wait for provision while lawyers dance on the head of a pin over costly and unnecessary arguments.

Photo of Dan Rogerson Dan Rogerson Liberal Democrat, North Cornwall

I am grateful for the huge amount of work that the hon. Gentleman has done on this subject during the passage of the Bill and elsewhere. He is making a strong argument for a unified appeals process. There is strong logic, which has been pursued by the Minister and his predecessor, my hon. Friend Sarah Teather, for bringing the processes together so that families who are looking for support have one point of contact or one meeting to attend. Does the hon. Gentleman agree that if the current tribunal process is not the right way to achieve that, the Government can continue to consider the matter as the evidence comes back from the pilot?

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am extremely grateful to my hon. Friend for his kind remarks. He makes an important point about a common entry point for families. That is a good start, but more needs to be done to build on it. To be frank, it may not be necessary to do that through primary legislation and the rules of the tribunals might be used. That would be a matter for Her Majesty’s Courts and Tribunals Service. I know my hon. Friend is liaising with counterparts in the Ministry of Justice on other matters that I shall come on to, and I sure he will also give this issue careful and anxious thought.

At the moment, clause 50(4)(a) allows

“other matters relating to EHC plans against which appeals may be brought;” to be added to the jurisdiction of the tribunal. To be fair to my hon. Friend, there does seem to be a power within the Bill, but it would be wise to go just one furlong further and make it absolutely clear to the families we represent that simplicity is the order of the day when it comes to people’s rights to challenge decisions that—let us not forget this—will affect the life course of the young people we are dealing with.

Let me move on to a rather interesting—well, I hope so—and important matter. Having to admit to being a lawyer is not popular in this House, but words are important and if we change the meaning of something, once again the lawyers will jump all over it. In that spirit, let us consider amendment 39, which relates to the position of current case law, and the synthesis between health care provision, social care provision and education—a point that returns to the comments made by my hon. Friend Neil Carmichael. The Government’s intention seems clear: they wish to replicate current case law when it comes to how local authorities judge their responsibility to make provision in that area. Clause 21 includes the words

“wholly or mainly for the purposes of education”, and I share the concern that the words “wholly or mainly” set a different and higher threshold than is currently set out in case law. In the 1999 Bromley case, Lord Justice Sedley spoke about a case-by-case analysis of particular applications, rather than a general principle as seems to be suggested by the clause. We should therefore consider a spectrum or range of provision from purely medical to purely educational need. A large number of cases will fall inside that spectrum, bearing in mind the common and well-understood scenario that with a particular need often comes a co-morbid need—a special educational need will often be accompanied by a health need as well.

Photo of Stewart Jackson Stewart Jackson Conservative, Peterborough

I strongly support the points that my hon. Friend is making eloquently and with his normal charm, especially as they relate to particular groups. I speak from my experience of working with children who have Tourette’s. That is one of the most obvious examples of co-morbidities and, for want of a better expression, people fall through the cracks in current legislation and are often failed by educational or health provision. The amendment seeks to ameliorate that difficult situation.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am extremely grateful to my hon. Friend, and I pay tribute to him for the work he does with a very challenging condition. A lot of people think Tourette’s syndrome is a funny thing, but for those who suffer from it, it is a challenging and difficult condition that is often misunderstood by members of the public. Perhaps I should pause for a moment and pay tribute to the families and carers who, day in, day out, have to put up with ill-informed and quite frankly abusive comments from members of the public who should know better, whether those parents are taking their child to use a disabled lavatory in a supermarket or going to the cinema and trying to enjoy a film with their child who may have a special need that means they make a lot of noise or have to move about. We still have a long way to go in society to achieve general understanding among a wider section of the public about what it is like to live with a child who has special needs. It is good that an increasing number of towns offer autism-friendly cinema screenings, for example, that allow people to sit in comfort on a Sunday afternoon without needing to have eyes in the back of their head or worrying about what somebody else will say about their child. I have parenthesised a little, but I am grateful to my hon. Friend for his intervention.

I was talking about “wholly or mainly” and the concern shared by many people that we could end up with a wholly artificial argument about a particular type of provision falling between two stools. Thankfully, it has been made clear on case authority that speech and language therapy would be an educational need, but as my hon. Friend Mr Jackson said, in a number of examples there will be less clarity and an ugly argument could break out between the health service and the local authority about who is responsible for what.

Photo of Alison Seabeck Alison Seabeck Shadow Minister (Defence) 2:15 pm, 11th June 2013

It has been interesting to listen to the hon. Gentleman and his expert comments. Does he accept that young people with disabilities often drift into having mental health problems at different levels, and that that group faces enormous problems? We know that there is often a lot of difficulty in the education and health services when deciding who should manage those young people.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

That is absolutely correct, and I am grateful to the hon. Lady. Sadly, mental health issues are a co-morbidity that becomes prevalent if, for example, a condition such as autism is not identified at an early age. It is a tragedy that so many young people who have autism or Asperger’s-related conditions end up with a mental health problem because their condition is not diagnosed or has been misunderstood or in some cases mistreated. I pay tribute, however, to child and adolescent mental health services that do the job well, understand the needs of people with pre-existing conditions, and adapt their services accordingly. A visit to a CAMHS unit can be quite a regressive experience for a young person with autism, which is why adapting services around the child or young person is so important.

Photo of Jesse Norman Jesse Norman Conservative, Hereford and South Herefordshire

My hon. Friend makes a powerful case. Does he share my view that, as with the local offer, it is important to avoid confusion between two things—educational provision for local students and educational provision available in the local area? With some conditions, the local area simply might not be capable of providing the educational specialist provision that would be available from national providers.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am extremely grateful to my hon. Friend, who I know represents a wonderful special college in Hereford that does tremendous work, not just on a local basis but on a wider basis. He brings a different strand to some of our debates about the need to ensure that, where necessary, there will still be placements well out of the borough, county or district in which young people live. Colleges such as the one my hon. Friend admirably represents fulfil that need and gap and must be part of our provision.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I will give way one more time to my hon. Friend Jesse Norman and then to Mr Clarke.

Photo of Jesse Norman Jesse Norman Conservative, Hereford and South Herefordshire

I am grateful to my hon. Friend for giving way again. He is right to say that the Royal National College for the Blind is an extraordinary institution, in part because it provides, through its own specialist skills, the kind of holistic understanding of how educational and health care needs can come together. That is one reason why it is such an extraordinary and special place and why it must be preserved amid all the other things the Bill seeks to achieve.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I cannot improve upon perfection.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill

In arguing powerfully, as he is, for a holistic approach, including for education, does the hon. Gentleman accept that that can impact on the later lives of such young people, particularly with issues such as employment?

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

It is a pleasure to serve in the House with the right hon. Gentleman, who has a long and honourable track record of campaigning for young people and adults with disability. He understands very well from his experience that the repercussions of decisions made at that stage in life echo down the years. We mentioned mental health and employment prospects. Only one in four young people with autism get into employment. I believe we can improve on that shameful statistic. I know there is a will among Ministers, including the noble Lord Freud, to change that, which I believe we can do.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I will give way to my hon. Friend, the Chairman of the Education Committee.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I am extremely grateful to my hon. Friend, who makes a powerful speech. I wonder whether he is right to propose removing “wholly or mainly”, because the Bill would read:

“Health care provision or social care provision which is made…for the purposes of the education or training of a child”.

Such provision does not have to be made for that purpose to be significant to the education or training of a child. I put it to the Minister that a better wording would result in provision that is significant to the education or training of a child or young person being treated as special educational provision. It would capture that which is important to deliver the education a child needs. The original motivator is not the key point.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I do not claim a monopoly of wisdom on the precise wording, but it is important to go back to the case law—London Borough of Bromley v. the SEN tribunal in 1999, in which Lord Justice Sedley stated:

“Special educational provision is, in principle, whatever is called for by a child’s learning difficulty,” which he goes on to define. He states:

“What is special about special educational provision is that it is additional to or different from ordinary educational provision”.

In that phrase, we have a more fundamental definition. Provision is not what is significant, but whatever is necessary. I am grateful to my hon. Friend for looking at that. My hon. Friend the Minister is listening carefully. Either in this House or in the other place, we need to achieve clarity and a replication of the words of the Lord Justice of Appeal, so that we do not end up moving away from the Government’s clearly stated intention.

Photo of Jesse Norman Jesse Norman Conservative, Hereford and South Herefordshire

Does my hon. Friend share my view that, to be effective and to respect that leading judgment, the idea of a local offer must include national providers? The judgment is not delimited by location; it merely says that provision should be whatever is necessary. A national provision is sometimes the correct option for a person with special needs.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

My hon. Friend is right. Low-incidence special needs can be catered for only by specialist colleges such as the one he represents—another college in Loughborough offers wonderful provision on a national basis.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

My hon. Friend has been very patient, so I shall let him intervene.

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

I thank my hon. Friend very much for giving way. I am interested in the other end of the spectrum—pre-school children and the tension between education and health. In Stevenage, we have a nursery called Tracks, which provides education support for pre-school children with autism. The local education authority does not recognise that such children could have autism, so parents waste a year or two of normal school time while they persuade the authority that their child has autism.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am extremely grateful to my hon. Friend, who, in effect, gives us a case study. He reminds me that I want to draw back to what we were discussing. I have a hypothetical case study before me. A young 15-year-old with Asperger’s and co-occurring mental health difficulties receives cognitive behavioural therapy. Before starting that therapy, his attendance at school was low, attending as few as two days a week, but with the help of the therapy he attends more like four days a week. His conditions have a huge effect on his home life and the quality of relations with his parents and wider family.

Under the new system, it is not clear whether that young man’s cognitive behavioural therapy would be deemed

“wholly or mainly for the purposes of…education”.

Without it, he could not access education, because he would not attend regularly. We need to answer that question. We do not want to put such people in that position, or to have artificial debates on what the law means.

Photo of Neil Carmichael Neil Carmichael Conservative, Stroud

My hon. Friend is making an outstanding speech on a critical issue. I want to reinforce the point made by my hon. Friend Jesse Norman on the importance of access to national facilities, because we must not localise provision at the expense of national organisations. Ruskin Mill in my constituency, and the National Star College in my county, provide expertise that we do not necessarily find elsewhere that is critical to young people’s futures. I want to put down a strong marker that we should ensure that national facilities are not put at risk through the funding—

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. We are drifting now. Interventions are supposed to be short points that are relevant to the speech at the time they are made. If Members want to contribute, they can. Mr Buckland has had the floor for some time, and other hon. Members wish to speak in this important debate. Despite his generosity in giving way, I am sure he is probably coming towards the end of what he wishes to say in this part of the debate.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I am extremely grateful to you, Madam Deputy Speaker. Your exhortation allows me to move on to the other amendments in my name, which I will deal with as expeditiously as I can.

Amendments 40 to 43 deal with young people over 18. The extension of legal protections for young people with SEN up to 25, which is at the heart of the Bill, is warmly welcome. However, the Bill states a number of times that local authorities “must have regard to” a young person’s age when making decisions on the support they receive after they are 18. We understand that the extension of provision to 25 does not create a blanket right to education for all young people with SEN, but we are concerned that the current drafting could give another get-out to local authorities, which could use the fact that a young person was over 18 to deny them support. Therefore, I suggest the removal of the phrase

“must have regard to his or her age” to avoid that unintentional consequence.

Amendment 44 relates to the duty of health commissioners. As I have said, I welcome that extension, which is a significant improvement, and which breaks the problem of the silo effect on education and health care plans. However, in the amendment, I am asking whether the provision goes far enough. Clause 37(2)(d) places a duty on local authorities to include in the plans health provision that is “reasonably required” by a child or young person. With clever lawyers, arguments could arise over the meaning of “reasonably”. We should therefore delete that word.

Clause 37(2)(d) also states that health services that must be included in the EHC plan must be linked to the

“learning difficulties and disabilities which result in” the special educational needs of

“the child or young person.”

In other words, the health provision must be linked to the specific impairment that has resulted in the child or young person being considered to have SEN. If the health need is not specifically linked, it does not need to be included. The danger is that limiting the requirement could result in confusion and, bluntly, injustice. For example, if a child with Down’s syndrome has a related heart condition, health provision needed to support their medical needs would need to be included in the EHC plan. However, if a child with Down’s syndrome has chronic asthma, which is unrelated to their Down’s and does not result in the SEN, there is no requirement to include the medical need in the plan. Such a distinction works against the Government’s intention to create a co-ordinated system. Once again, energy is being wasted on arguments about what is related to the special need. Let us try to cut the Gordian knot and deal with the issue in a straightforward way that does not create confusion and the potential for litigation.

Amendment 45 relates to our debate on the status of higher education institutions and their inclusion in the new framework. It is welcome that further education will be part of the spectrum of provision. It is right to say that many universities already meet the needs of disabled young people well, with the provision of disabled students allowance and other assistance. However, we still hear far too many stories about disabled students having to battle to get the wider support they need to access higher education and the problems they face in securing support from local health and social care services. The current proposals stop once a young person goes into higher education. Therefore, there is a concern that more needs to be done to include universities. Again, I pay tribute to my hon. Friend the Minister. He rightly acknowledged the need for further discussions with universities, and I know he will look carefully at our submissions.

Amendment 46 relates to accountability for the local offer, which is one of the cornerstones of the Bill. That has to mean something for families and young people, so the question of accountability is key.

Photo of Jonathan Reynolds Jonathan Reynolds Labour, Stalybridge and Hyde 2:30 pm, 11th June 2013

This is a particularly important amendment, among the many that the hon. Gentleman has mentioned. I strongly agree that this duty is extremely important in making the local offer meaningful. I hope the Government will listen to the support for the duty, as well as to the representations that I am sure will be made in the other place. In making this contribution, I draw the attention of the House to my declaration of interest.

Photo of Dawn Primarolo Dawn Primarolo Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Before Mr Buckland gets to his feet again I have to say that he has now been speaking for 32 minutes. Other Members wish to speak, so I hope he will draw his remarks to a conclusion soon—in the next 60 seconds—so we can move on to other contributions to this important debate.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I bear your strictures seriously, Madam Deputy Speaker.

I pray in aid remarks I have made in the past on the importance of the accountability of the local offer, and echo the comments made by Mrs Hodgson on clause 69. I urge my hon. Friend the Minister to redouble his efforts with the Ministry of Justice, so that clause 69 is expunged from the Bill when it returns to this House.

May I very briefly mention new clause 21, which is part of this group? It relates to the duty to ensure that there is inclusion for children and young people. That must not just be a comfortable word that we in this place all use—it has to mean something. In transforming local services, we must stop making an assumption, even for children and young people in special schools, that there will not be times when they will want to access mainstream services. I should add that a large number of children with special needs currently enjoy mainstream education with appropriate support. We need to underpin the spectrum of provision, whether in the form of education or other local provisions, which is why I commend new clause 21, which was tabled with my colleagues on the Joint Committee on Human Rights, the hon. Members for Aberavon (Dr Francis) and for Ealing, Southall (Mr Sharma).

I am grateful to you, Madam Deputy Speaker, for allowing me to address the House at some length. I apologise for that, but this is an important Bill. We have got to get it right.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill 2:34 pm, 11th June 2013

It is a pleasure to follow Mr Buckland. For politicians these days, a few kind words go a long way. I congratulate him on his effective work on autism. The House will be pleased to hear that I do not intend to speak for long, as there is so much business today, but I wish to focus on amendments 46, 66, 67, 68 and 69. If I find myself on a different path, I am sure you will keep me in order, Madam Deputy Speaker.

I would like to pick up on comments made on both sides of the House. I thank sincerely my hon. Friend Mrs Hodgson, who led for the Opposition. She rightly focused on education, which is vital in bringing out the talents and abilities of children, and recognised that these issues should, at every level—for education, certainly, but also employment, health matters and so on—be person-centred. My hon. Friend will agree when I say that disabled people are one of the groups that are the furthest away from the employment market, and education has an impact on that. Disabled people are twice as likely to be unemployed as their non-disabled peers. In 2012, the Office for Disability Issues estimated that 46% of working age disabled people are in employment, compared with 76% of working age non-disabled people.

My hon. Friend and other hon. Members were absolutely right to focus on the big issues that have an impact on those with learning disabilities.

I am joint chair, with Lord Rix, of the all-party group on learning disability. We have achieved a great deal, but we still have much more to do. One of the key features of the Bill, for example, under clause 19 is the move to involve young people and children under the age of 16 in decisions about their special educational needs provision. Children and young people with special educational needs, particularly those with a learning disability, have trouble reading and understanding material unless it is fully effective, and that applies to Braille and other things.

Although localism is appropriate and schools should be judged on how well they are doing, there nevertheless ought to be standards that are accepted across the whole of the UK. I remind the House, as a Scottish Member, that although these matters have been devolved to the Scottish Parliament, the annual economic and fiscal settlement has to bear the Barnett formula in mind, so it is as appropriate to discuss these issues in England as it is in the devolved institutions.

It is essential that any information for, or consultation with, people with a learning disability is accessible and meaningful to ensure effective participation and involvement. Mencap has highlighted that this means using easy read formats for blind or partially sighted people. Organisations such as Scope point out that such necessities should not be a postcode lottery, as my hon. Friend the Member for Washington and Sunderland West also rightly said. This is the challenge before us. I am a little envious that I was not on the Committee, because I am sure that its considerations were thoughtful and progressive, and I congratulate it on its work.

I would like to conclude on this note. On the issues that we are dealing with—education, health, care and social matters—coming back to the child and the family is vital. Before I sit down, I shall give one example. A few years ago, I was invited to an exhibition in Glasgow organised by the National Autistic Society demonstrating some of the wonderful work in art and music that young people with autism were nevertheless able to produce. The VIPs opening the exhibition stood beside a particularly impressive painting, but as we listened to the speeches we were discouraged by the noise that one of the children was making, until we realised that this beautiful painting, which we had all admired, was painted by that young woman. That is the opportunity. We can do it. We can deliver for special educational needs. I hope that as the Bill progresses through both Houses, it will be seen as a major step in that noble direction.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

It is a pleasure to take part in this debate and to follow my hon. Friend Mr Buckland and Mr Clarke. The right hon. Gentleman’s final point was right: this is a flagship Bill. Just as the Disability Discrimination Act 1995 turned out to be an historic step forward and a great achievement by the then Conservative Government, so I think this flagship Bill will be a great achievement of this coalition Government. It is symbolic that the Minister’s predecessor was a Liberal Democrat and that he has carried the Bill forward.

I know that we have limited time but I want to make a few comments. I was a little sceptical at the beginning of this process, and I remain worried that we might create a level of expectation among parents greater than the Bill can deliver, especially in this time of austerity, not least for local government budgets, but my scepticism and doubt have been eroded over time. The way successive Ministers have worked and the way the Bill has taken shape gives me hope that it can be as significant for children with special educational needs as the Disability Discrimination Act was for those with disabilities.

I wish to speak to my amendments 59 to 64, but first I want to put on the record my thanks to the Minister for his close and courteous co-operation with my Committee. His actions to improve the Bill in response to our recommendations have been appreciated, and he was big enough to list the changes that the Select Committee had suggested and which the Government had adopted. Ministers should not be embarrassed—quite the contrary—to change their proposals on the basis of evidence and submissions from people in the Chamber and outside.

The Education Committee paid particularly close attention to part 3 of the Bill on children and young people in England with special educational needs. As I say, we welcomed many features of the Bill in our pre-legislative scrutiny, such as the introduction of integrated education, health and care plans and the fact that the new statutory framework for SEN will cover children and young people from birth all the way to age 25. We should not underestimate the significance of these changes. They will deliver a process for assessing and meeting children’s and young people’s individual needs that could be more coherent, comprehensive and compassionate. As always, however, the devil lies in the detail, so my Committee will closely monitor the impact of these changes in practice.

My amendments have a common theme: to ensure that nothing in the Bill reduces the centrality of parents in making decisions for their children. I am particularly concerned to ensure that local authorities do not use the Bill to seek to change the balance in their relationship with the parents of children with special educational needs. I wish the Bill to enhance, not diminish, the role, power and influence of parents. I have particular concerns about parents who have chosen to educate their children at home. From discussions with the Minister, I know it is not the Government’s intention to undermine the parental role, but unless that is made clear in the Bill, there will always be the risk that these things will creep in.

That is why I have proposed amendment 59. It would insert a new subsection (e) in clause 19 expressly requiring local authorities to have regard to the right of parents to make their own arrangements for their children, in accordance with the Education Act 1996. Without this, the possibility will remain that local authorities might try to steamroller home-educating parents, who are only trying to do the right thing by their children. I am not saying it will necessarily happen, certainly not in all cases, but it is conceivable. My amendment is intended to prevent the situation from arising, whether through sins of omission or of commission. That is to say, the aim is to prevent local authorities from forgetting that parents have the primary responsibility for their child’s education. My amendment would assert that responsibility and the right of families to be free to educate their children independently, if they so wish.

My concerns about unintended consequences that might be read into the Bill also prompted me to introduce amendments 60 and 61. Clause 22 of the Bill states:

“A local authority in England must exercise its functions with a view to securing that it identifies all the children and young people in its area who have or may have special educational needs.”

As worded, this might lead local authorities to believe they must insist on seeing all home-educated children to assess whether they have special educational needs. Members might think such an interpretation perverse, but I know from paying close attention to the interests of home educators over the years that perverse outcomes are not unknown when it comes to local authorities and home-educating families. The current phrasing of the Bill opens the door to it.

My amendments to clause 23 are designed to focus the authority’s attention where it might reasonably be required, rather than inadvertently implying a duty to screen all children. They would bring this clause into line with clause 24, which employs the phrase “probably has” regarding special educational needs. That is also the phrasing in existing legislation—specifically section 321 of the Education Act—where it has functioned satisfactorily.

Amendment 62 is designed to underline the importance of parents’ and young people’s roles in developing SEN arrangements with local authorities. Clause 28 lists the local partners with whom local authorities must co-operate in developing local offers. During our pre-legislative scrutiny, the Education Committee heard compelling evidence that parents should be given a clearer mandate in this part of the Bill. This sentiment was expressed by bodies such as the National Autistic Society and the National Network of Parent Carer Forums. Brian Gale of the National Deaf Children’s Society pointed out that the list of local partners overwhelmingly represented the provider interest and did too little to give a voice to children, young people and their parents. Including parent carer forums on the list would improve the situation, so I hope the Minister will give it careful consideration.

Our inquiry heard how early evidence from pilot schemes and pathfinder work indicated that where local parent carer forums had been actively involved in planning and designing schemes, the work of the pilots had been more solution-focused and more likely to gain the support and confidence of the families taking part. In the section on parent carer forums, the Department’s draft code of practice for SEN acknowledges:

“Effective parent participation can lead to a better fit between families’ needs and service provision, higher satisfaction with service delivery, reduced service costs (as long term benefits emerge), better value for money decisions and less conflict between providers and those dependent upon services.”

If the Department knows that to be true, I would urge the Minister to add parent carer forums to the list I mentioned.

My amendment 63 is similarly designed to safeguard parents’ rights. It would amend the wording of clause 42(5). It outlines the situation where a local authority or a health commissioning body is not obliged to arrange the specified educational or health provision set out under an EHC plan. As drafted, these bodies do not have to make provision for a child if the parent has made “suitable alternative arrangements”. This “suitability” requirement implies that someone in authority will have to decide whether the parents’ arrangements are suitable. It is another feast for the lawyers. This requirement would be inherently subjective and risk introducing uncertainty, which the Government are keen to eradicate, into the system My amendment substitutes this phrasing for that of section 7 of the Education Act, which currently already requires such arrangements to be suitable for a child’s age, ability, aptitude and any special educational needs. It is a much more specific formulation and will therefore avoid the definitional pitfall.

My amendment serves a second purpose, by emphasising that clause 42(2) and (3) do not apply when parents have made appropriate arrangements and when they have chosen not to receive assistance with making provision. It is incredibly important that when parents are home educating and seeking to make suitable provision, local authorities do not opt out of offering support. It is essential that they continue to provide that support. They do not have to be in overall control of the situation or in charge before they fulfil that responsibility.

Finally, my amendment 64 is designed to prevent local authorities from washing their hands of home-educating parents. Clause 45 describes the circumstances in which a local authority may cease to maintain an EHC plan for a child or young person. My amendment would ensure that the Bill expressly provided that local authorities cannot cease to maintain an EHC plan solely because a child or young person is being educated other than at school. In the absence of an EHC plan, local authorities might argue that because a child is out of the school system, they are not under a duty to provide anything and therefore the plan does not need to be maintained. Home-educating families need to be protected against any such reading of the law.

The amendment again may be accused of taking an unduly pessimistic view of how local authorities may interpret this Bill, but local authorities have a track record of interpreting the rules in ways that best suit their own purposes. They often find home education anomalous and thus something from which they would seek to remove help. Unless protections are built into the Bill, parents of children with SEN will continue to be concerned that they may lose out to unduly officious local town hall bureaucrats. My amendment would put that right and, in doing so, would put the issue beyond all doubt.

The Minister may suggest that this is a matter for the new SEN code of practice, but experience has made it clear that it is unsafe to rely on guidance where there is ambiguity within the education itself. In education, as elsewhere, one size does not fit all and the Bill should recognise that, build it into the system and provide reassurance to thousands of young people and their parents.

If I may, I will briefly touch on a couple of other issues. I welcome new clause 8 and congratulate Mr Sanders on introducing it. Requiring schools to have a robust policy in place to safeguard and support children with health conditions such as asthma and diabetes would represent a positive step forward. Many schools have such a policy in place independently but too many do not. Last week, my office met the Crawforth family from my constituency. Their son suffers from type 1 diabetes. He is one of 29,000 children in the UK who live with the condition, yet a study by Diabetes UK in 2009 found that in only 29% of cases did school staff help with insulin injections. In 47 % of cases, someone other than a member of school staff helps the young person with blood glucose testing, including parents in 42% f these cases.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South 2:45 pm, 11th June 2013

I apologise for coming in a bit late. Some years ago I had a ten-minute rule Bill on this subject and I welcome the fact that the amendment will address it. I would like to put it on record that, as far as I am concerned, this is a welcome amendment.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I welcome that intervention.

These statistics are unacceptable and reflect a situation that places unfair pressure on children, parents and teachers alike. The new clause would require schools to engage directly with parents and to co-operate with local NHS authorities in preparing and implementing strategies to head off these risks. I suggest to the Minister that its inclusion would strengthen the Bill and help end the status quo whereby the quality of support available to children and families coping with conditions such as diabetes is largely a matter of chance.

I am mindful of your strictures on time, Madam Deputy Speaker, but I would like to speak in support of amendment No. 43, tabled by my hon. Friend Mr Buckland. I am concerned that requiring local authorities to review the continuance of EHC plans for young people aged over 18 with specific regard to their age may make it more likely that support would be curtailed or dropped altogether on the basis that the young person would be deemed to have made the transition into adulthood. This concern is heightened by paragraph 231 of the explanatory notes to the Bill, which explains the thinking behind clause 45. It gives examples of potential stages at which EHC plans can be amended or replaced. These include the end of a specified phase of a young person’s education or when a young person becomes a NEET. This runs contrary to the recommendations made by my Committee in our report, where we acknowledge the particular position of NEETs and apprenticeships and the potential of EHC plans to assist young people with SEN into constructive employment. We recommended that the Bill should provide entitlement to EHC plans both to NEETs of compulsory participation age and to young people who are undertaking apprenticeships.

We heard from Dai Roberts, the principal of Brokenhurst college, who cited the case of two learners with profound deafness who were then on marine engineering apprenticeships. They had to have signers to help them with their training. These are precisely the young people who need extra support in order to follow their ambitions so they can get on and make a success of their lives. The amendment deserves support and clause 45(4) deserves to be scrapped.

My final remarks will be on the local offer. Getting that right will be essential to ensuring that the Bill overall helps young people. I am confident that those who get an EHC plan will be in a better situation than those under the previous regime of statements. In fact, it is essential to ensure not that it is easier to get a plan—the Minister, surprisingly in my view, said he wanted to make that case. I hope that there will be fewer people having plans than under statements, not because there is an effort to guide them away from them, but because local offers meet so many of the needs of parents and young people that there is not a requirement for the bureaucratic involvement that will be required even in our streamlined EHC system.

Photo of John Healey John Healey Labour, Wentworth and Dearne

It is good to follow the Chair of the Select Committee. I hope the constructive and cross-party description that he has given of the passage of the Bill so far means that, as the Bill goes into the other House, many of the amendments that we have discussed today, which clearly need to be made, will be made.

Before he spoke, we heard two strong—including one long—speeches on special educational needs. I am not going to speak up for children with special educational needs. Instead I would like to speak up for children with specific health conditions and, in particular, to lend my support to new clause 8, which was first tabled in Committee by my hon. Friend Mrs Hodgson and now stands in the name of Mr Sanders.

Four years ago, I met an inspiring young woman called Emma Smith. She was 12 years old, from Dalton in Rotherham, and I was her MP. She was on a lobby for Diabetes UK to the House. I met her here, and met her and her family at home. I also met a couple of other young children and students at school in Rotherham who were suffering from diabetes. They described a lack of recognition and appreciation by staff at school of their condition and a lack of knowledge about what they had to do to manage it for themselves. They described a suspicion, sometimes, of the needles they had to use to inject insulin. Occasionally there was nowhere for them to do those injections during the school day. They also spoke of friends of theirs with similar problems who had been forbidden from eating or going to the toilet during lessons when they needed to because of their condition. I pledged my support to Emma Smith and her campaign, as I did to the ten-minute rule Bill of my hon. Friend Mr Cunningham, which he introduced around that time. I thought that my hon. Friend could not be here today, which is why I am in his place, but I am glad to see that he has come into the Chamber.

Photo of Mark Tami Mark Tami Opposition Whip (Commons), Opposition Pairing Whip (Commons)

My right hon. Friend is making a powerful case. Does he agree that it is not just about staff? We need to ensure that children—particularly primary school children, who can be scared if they do not know what is going on—have explained to them why a child has to be treated in a certain way. Children can be frightened and misunderstand what is happening.

Photo of John Healey John Healey Labour, Wentworth and Dearne

My good and hon. Friend knows exactly what he is talking about and he is right. This is not simply about staff; it is about other students and pupils understanding better the conditions and health problems that some children have to cope with and, often, being supportive as a result. I know my hon. Friend speaks from direct experience of such things.

In considering the case for any new clause or amendment to legislation that the Government produce, there are three conditions that the House ought to expect to be met. By the same token, if the Government continue to resist such amendments, the House should expect them to be able to argue that those conditions are not met. Those three tests are these. Is the change necessary? Is it proportionate? Is it beneficial? Let me deal first with the question of necessity. The problem of other students, fellow pupils, teachers and staff not knowing about the conditions that many children may have makes managing those conditions more difficult. Often it also holds children back at school and it may sometimes even put their health at risk, so better provision, better support and a better policy framework are needed.

This is not just about children who suffer from diabetes. The Health Conditions in Schools Alliance has said that more than 1 million children suffer from conditions as wide-ranging as diabetes, asthma, heart disease or epilepsy, or are at risk of severe allergic reactions and anaphylaxis. This is a widespread problem that is largely hidden. Almost half the children who suffer from asthma have problems joining in fully in general lessons or even going on school trips. More than a third of children with diabetes say that one or both of their parents have had to give up work entirely or cut back their work to support them at school. Finally, almost two thirds—just under 60%—of schools that have children with diabetes have no policy in place to guide staff on the matter of injections on the premises.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South 3:00 pm, 11th June 2013

My right hon. Friend will recall that, in addition to educating teachers about children’s conditions, one of the things I proposed in my ten-minute rule Bill some years ago was the creation of school clusters, which would involve somebody with medical experience from the national health service as well as teachers. They would perhaps give talks or inspect the facilities every so often to ensure that teachers were adequately trained.

Photo of John Healey John Healey Labour, Wentworth and Dearne

I backed my hon. Friend’s Bill and I remember it. Essentially, it aimed to set standards of support that all schools should have in place and, as I recall, to require Ofsted to monitor and inspect whether they were being met.

Finally on the question of whether an amendment is necessary, the framework of legislation and guidance already in place—the “Managing medicines in school” guidance, the Equality Act 2010 or even the Children Act 1989—is often said to be sufficient, but these problems are so widespread for so many children that clearly the system as it stands is not working and something else is necessary.

That brings me to my second point: is the proposed change proportionate? It is simply indefensible to argue that parents should have recourse to invoke the 2010 Act or the 1989 Act to get support for their kids at school. That is disproportionate. New clause 8 does not propose a new policy obligation or new standards for national Government, nor would it require local authorities to act. It would not even require health bodies to act, other than to support schools. What new clause 8 proposes is that a school should have

“a duty to produce and implement a medical conditions policy that defines how it plans to support the needs of children with specified health conditions”— no more, no less. In other words, schools should have well-judged, proportionate policies, pitched at where the challenge is greatest and the potential gain most important—that is, in the culture, understanding, practice and sympathy found in schools. We are talking about a policy developed in schools, for schools and by schools, with the support of health bodies and local authorities behind them.

I have addressed whether the proposed change is necessary and proportionate, but is it beneficial? It would be beneficial if children could go to school confident in the knowledge that those around them understood their conditions. It would be likely to make managing their conditions easier, allow them to play a much fuller part in the life of the school and fulfil more of their potential, reduce the requirement on parents to give up or reduce their work—and, arguably therefore, to step up their dependence on the state to support their kids in school—and reduce the demands on the NHS, so the proposal is beneficial as well.

Is this change necessary? Yes. Is it proportionate? Yes. Is it beneficial? Yes, and if the Minister continues to resist it, he will have to demonstrate that it is unnecessary, disproportionate and either detrimental or not beneficial. I want our children who have special health conditions to be able to enjoy school to the full, to fulfil their potential and to feel confident that those around them know what to do because they understand their conditions.

Finally, I want to leave the House with the words that I always remember Emma Smith saying to me: “I would feel a lot happier if people at school knew what to do if for any reason I was unable to treat myself.” That seems to be the very least that this House and this legislation should provide.

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

It is a pleasure to follow John Healey, who summed up what many parents at various lobbies of this place have said over a number of years, not least last week, when children with type 1 diabetes came to Parliament to lobby their Members.

New clause 8 stands in my name and that of other hon. Members and was originally tabled by Mrs Hodgson. It seeks to improve the consideration that schools give to students with long-term conditions, including diabetes, epilepsy, asthma and many less prevalent but equally serious illnesses. We have heard that around 29,000 children in the UK have type 1 diabetes. Through my work as chair of the all-party group on diabetes, I have become painfully aware that, despite great improvements in recent years in care for young people with diabetes, something of a blind spot remains in schools, with staff often unaware of the implications of the disease, let alone able to help children with their condition. This leads to all sorts of problems that are, at root, preventable.

At the centre is the impact on child health. A school environment that does not include basic precautions or simple awareness training can lead to complications arising from diabetes. For example, a child experiencing hyperglycemia is at risk of diabetic ketoacidosis, a potentially fatal complication. More than 3,000 children experience this every year, at significant cost to the health care system and obviously considerable anxiety to parents and families, most tragically in the 2% of cases that result in death. Anything we can do to reduce this prevalence must be imperative.

There are more general problems, however. All too often, schools do not have adequate plans in place to deal with the day-to-day needs of those with long-term conditions. That leads to children being made to feel separate and neglected, leaving them more open to bullying, and can also have a detrimental impact on their education. Diabetes and other long-term conditions should have no impact on a child’s ability to learn—they do not have special educational needs—but if those conditions are not managed appropriately in the classroom, they will impede a child’s education.

Ideally, schools should acknowledge that they are looking after a wide range of pupils with varying needs, and staff should have in place a robust plan that has been agreed with parents and health care professionals to prevent the time-consuming and expensive problems that will be inevitable without this investment in planning. I fully anticipate the Minister saying that it is up to schools to decide how to achieve this, and I agree, but we also have a responsibility at national level to ensure that schools do that, and that parents have the scope to force the reappraisal of a situation if it is found wanting. The plans need to be put in place on an individual basis, however. It is striking that the subject that the public most frequently raise with me, as chairman of the all-party parliamentary group on a condition that affects more than 3 million adults, is the poor level of support offered in schools to the 30,000 children who are also affected by it.

K

Perhaps an acknowledgement that post-war disabling policies have always been intrinsically linked to educational under-achievement might offer extra clout to this Bill? That the problems are systemic is clearly no longer in doubt. And you could equate the experience of those diagnosed with Diabetes as children universally with all those who've been subject to other types of classificatory labelling.

No child, irrespective of any perceived occupational limitations should be prevented from achieving their learning potential. This is particularly important for those with health restrictions or disabilities since it's often the only way open to them for achieving social status and participating fully in their local communities.

Submitted by Karen Jemmett

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

I congratulate the hon. Gentleman on tabling the new clause. He will be aware that there are specialist colleges, such as Hereward college in Coventry, that would benefit from his proposals. Further down the road, some of these children will have the confidence to go into further education, and they will particularly benefit from those specialist colleges. In that context, the Government should look again at the cuts to the budgets for those colleges.

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

I thank the hon. Gentleman for that helpful intervention. I also congratulate him on the ten-minute rule Bill on this subject that he introduced a little while ago.

Last week, I attended a diabetes event, and I heard an account from a parent from the north of England that succinctly summed up the experience of all too many parents, wherever they live. Her son was just starting primary school and, in the previous July, the diabetic specialist nurse had visited the school to put a necessary care plan in place. It was clear on the first day of school that the plan was inadequate. According to the parent, it was not worth the paper it was written on, and was certainly not suitable for a four-year-old. Importantly, it stated that the child should test his own blood levels—something he had never done before and something that no one would expect a four-year-old to have to do. The plan also had no guidelines for emergencies.

Despite the parents providing a new plan for the school, the child’s first six months of school were filled with phone calls home and teachers holding his hand throughout the day, even taking him out of the classroom frequently as though he were a ticking time bomb. This caused a massive amount of stress and inconvenience to the parents. Schools need to recognise that, beyond the health condition, these are normal children who need to be treated normally but with sensible and reasonable adjustments and awareness to maintain the normality as much as possible.

Photo of Mark Tami Mark Tami Opposition Whip (Commons), Opposition Pairing Whip (Commons)

Does the hon. Gentleman agree that the so-called special treatment that such children get, involving missing lessons and sometimes taking days off school, can sometimes lead other children to believe that they are different, and that that perception of special treatment can lead to bullying?

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

Indeed; I referred to the danger of bullying earlier. Diabetic children do not need to be taken out of class; they simply need a hygienic environment in which to test their blood sugar levels during the day, and to be allowed to eat in the classroom, or go outside to eat, in order to boost their blood sugar levels. It helps everyone if the staff understand those needs and explain them to other pupils. In that way, the children can learn that many of us will have a medical condition—not necessarily diabetes—at some time in our life. There is a whole spectrum of medical conditions, and treating children who suffer from them separately is worse than providing for them within the mainstream and within the normal school settings. All that is needed is a willingness for schools to put in the effort and to look at best practice while listening to parents. A reminder in the Bill that that is important would go some way towards reassuring tens of thousands of anxious parents.

Photo of Caroline Nokes Caroline Nokes Conservative, Romsey and Southampton North

Given your previous encouragement for speakers in the debate to be brief, Madam Deputy Speaker, I will try to do so. It is a pleasure to follow Mr Sanders, who has spoken on the specific issue of diabetes in schools. I was contacted only last week by a family in Romsey whose four-year-old son is due to start school in September. They had been told that, should he feel a “hypo” coming on, it would be his responsibility to get himself to the school office, where he could be tested and the appropriate treatment administered.

I commend to the House the work of the Juvenile Diabetes Research Foundation in encouraging local education authorities to put in place protocols and care plans so that schools can be made aware of the appropriate treatment and teachers can be properly informed about addressing the problem. This is particularly important for those dealing with very young children, for whom needles and testing kits might still be a relatively strange and foreign concept. Older teenagers might have become accustomed to them.

I want to take this opportunity to mention the work of the Bill Committee, of the Under-Secretary of State for Education, my hon. Friend the Member for Crewe and Nantwich (Mr Timpson), and of Mrs Hodgson. Our discussions were always undertaken in a consensual and collaborative manner. A lot of amendments were tabled but many were not pressed to a vote because we were able to come to an agreement on them. I commend the work done by the Minister in outlining exactly what the Government were seeking to do in the Bill, so we could reach agreement on areas of particular concern to us.

I should also like to commend my hon. Friend Mr Buckland, who has done an enormous amount of work in the field of special educational needs. He illustrated earlier the depth of his knowledge and understanding, and he has done fantastic work to highlight the difficulties faced by parents and families in relation to assessment. In Committee, we often used the words “fight” and “battle” when discussing the struggles that families went through to ensure that their child had an appropriate assessment and statement to address their needs. I hope the Bill, and the education, health and care plans, will remove some of that necessity to fight, and make things a great deal easier.

In Committee, I mentioned a specific subject, and I am pleased to see that the Secretary of State has taken it up. My constituency has a significant number of military families who, by dint of their career paths, are frequently moved around the country. A disproportionate number of those families with children with special educational needs, having secured a statement in one part of the country, are then moved elsewhere through no fault of their own. This can result in their having to go back to square one in the process. I am therefore delighted that new clause 9 takes account of that in seeking to make the EHC plans far more portable, so that families who have already been through that struggle do not have to revisit it.

There are many reasons for a family moving. I have mentioned military families because of my constituency interest, but I have also done a massive amount of work with an organisation called Ambitious about Autism, which runs the excellent TreeHouse school in north London. In highlighting to me the difficulties that families face if they seek to move to a different area, it has specifically mentioned the case of one young boy, Mohammed. He is 12 years old, and has autism and complex learning difficulties.

Mohammed’s family live in Westminster and he travels every day to the TreeHouse school, which is a considerable distance away. His family were desperate to buy their own property, and as Westminster is a phenomenally expensive borough to live in, they were hoping to move to another part of London. They felt constrained from doing so, however, because they felt that if they left Westminster, where they had secured Mohammed’s statement, they would have difficulty in ensuring that their new borough would continue to provide for his education at TreeHouse school. Such was the importance to him of that school that they were not prepared to put his education at risk. Instead, they have continued to rent a home in Westminster, even though their long-term plan was to move out of the borough and further away.

I promised to keep my comments brief, and I think I have managed to speak for only four minutes. I would like to thank the Secretary of State and the Minister for having tabled the new clause. Portability and an ability to recognise care plans across different local authorities will be of critical importance to all those families who have struggled to ensure that their children get the provision they need.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education 3:15 pm, 11th June 2013

I thank my hon. Friends the Members for South Swindon (Mr Buckland), for Romsey and Southampton North (Caroline Nokes), for Beverley and Holderness (Mr Stuart) and for Torbay (Mr Sanders) and Valerie Vaz for the amendments they tabled. I thank in particular Mrs Hodgson for embodying in her approach the very essence of this part of the Bill, in that she has demonstrated a lot of co-operation and constructive consultation and has, I suspect, sometimes strayed into the occasional bit of joint commissioning, which I welcome. I also thank other Members who have spoken in this debate on the SEN provisions. I will do my best to respond to the amendments and the key points that have been made.

Amendments 30, 46, 62 and 66 to 69 and new clause 21 are concerned with arrangements for improving local provision. I hope I will be able to address the concerns that are behind amendment 30—as just raised by my hon. Friend the Member for Romsey and Southampton North—through regulations and the code of practice. Draft regulations under clause 48 would require local authorities to provide information, advice and support in relation to personal budgets, including information about independent organisations. Draft regulations made under clause 36 would require local authorities to provide any support they consider necessary for parents or young people to take part effectively in the education, health and care assessment, and regulations made under clause 30 would require local authorities to include in their local offer sources of information, advice and support for children and young people with special educational needs and their families. The indicative code of practice—which my hon. Friend the Member for South Swindon helpfully pointed out was made available in Committee and proved invaluable as a consequence—clarifies that this should include information, advice and support available in relation to personal budgets.

I share the aim of my hon. Friend’s amendment 46, which is to ensure that education and social care provision is sufficient to meet the needs of children and young people with SEN and to promote improvements in that provision, but that should be balanced with the need to retain local decision making; that point seemed to unite the House in the debate we have just had. Local authorities, schools and other services must determine spending on provision for children and young people with special educational needs, taking account of their legal responsibilities. Clause 27(3) would require local authorities to consult a wide range of people and organisations in reviewing provision, including, importantly, children and young people with special educational needs and their parents, but placing a specific legal duty on them to improve special educational and social care provision until everyone consulted agrees it is sufficient would be impractical, as views of different people and groups would inevitably differ. Local authorities will be able to reflect the outcomes of the reviews they undertake under clause 27 in the local offer, which also requires the close involvement of children and young people with special educational needs and their parents in its development and review.

On amendments 66 to 69, I can assure the hon. Member for Washington and Sunderland West and other hon. Members that the local offer will not be a speculative document. It will set out what the local authority expects will actually be available. The local authority does not have control of all the services set out in the local offer, so it can only set out what it expects to be available. If it can only reflect what is currently available, that will prevent the local offer from setting out, for example, what provision it expects to become available in the near future. This could, for example, include new provision in a school, which parents or young people will want to know about in advance.

On amendment 68, I agree that online communities can be a valuable way to socialise, and perhaps that is especially true for young people with special needs. Only yesterday I had the opportunity to visit Springfield special school in my constituency. The children being educated there were keen to show me first their school’s IT suite, where they had developed some important skills in a number of innovative ways. I agree that online communities have their dangers, and that young people should be equipped to socialise over the internet safely. I repeat the commitment I gave in Committee: I will consider including a reference to online communities in the code, in the context of preparing for adulthood. I do not believe it is necessary to amend the Bill in order to achieve what Members want, but I think what I have said demonstrates the importance of this area both now and in the future.

Amendment 69 concerns minimum standards in the local offer. The key to the success of the local offer in each area will be the transparency of information, and the involvement of local parents, children and young people in developing and reviewing the local offer. Central prescription would stifle the very innovation and responsiveness we want to see the local offer trigger, and stipulating minimum standards for the local offer would weaken local accountability. They would constrain parents’ ability to influence a local authority, which could point to meeting minimum requirements to end further discussion. That is a potential “race to the bottom” that we must avoid; my hon. Friend the Member for South Swindon raised that point in Committee. I hope that detail about what will be in the offer and the strength of the processes for agreeing it will reassure Members that such a potentially counter-productive minimum standard is not necessary.

Amendment 62, from my hon. Friend the Member for Beverley and Holderness, the Chair of the Education Committee, reflects the view expressed by his Committee about the importance of parent carer forums, whose national network I believe I am meeting tomorrow. I share my hon. Friend’s views about the importance of parents helping to shape local policies for supporting children and young people with special educational needs. The indicative SEN code of practice makes clear reference to that and to the value of parent carer forums, but as they are not legally constituted bodies we cannot include them in the list in clause 28 of organisations with which a local authority must consult when carrying out its functions under the Bill.

Provision has been made in clause 27 for local authorities to consult children and young people with special educational needs and parents of children with SEN, along with

“such other persons as the authority thinks appropriate”, when carrying out their statutory duty to keep their special educational provision and social care provision under review. I am sure that local authorities will want to consult parent carer forums as they carry out that duty, which is reflected in the draft code of practice. The SE7 pathfinder, for example, is working closely with its local parent carer forums to develop the local offer, to ensure that it reflects the needs of children, young people and parents.

Turning to new clause 21, local authorities aim to provide services close to home, and I know how important it is for families for provision to be made locally. However, as has been said, that is not always practical for those who require specialist support that is available only in very few places. Clause 27 requires local authorities to consult children and young people with special educational needs and their parents when they are reviewing their special educational provision and social care provision. Local authorities, clinical commissioning groups and NHS England must develop effective ways of harnessing the views of their local communities, and they will undoubtedly want to engage with Healthwatch organisations, patient representative groups, parent partnerships, parent carer forums and other local voluntary organisations and community groups.

Clause 30 requires local authorities to involve children and young people with special educational needs and their parents in developing and reviewing the local offer. That will ensure a continuing dialogue between local authorities and their partners, including children, young people and families, and keep a focus on the need for local provision. I recently discussed these issues with Scope, which has a good deal of experience in this area, and undertook to consider how the guidance in the SEN code of practice could best encourage the development of services that are responsive to local needs.

I shall now deal with amendments 44, 37 and 39, tabled by my hon. Friend the Member for South Swindon, which are all concerned with ensuring an integrated approach to meeting the needs of children and young people. I share the goal of amendment 44—integrated health and social care support—but cannot agree that it is the best way to achieve it. Under the Bill, the support that must be available to the child or young person is that reasonably required by his or her special educational needs.

Local authorities and health commissioners have the power to include other social and health care if they feel it is appropriate. So a child with special educational needs arising from cerebral palsy who needs a wheelchair would have that in their plan. If the child developed an unrelated minor infection, any prescribed medication would not normally be included. Amendment 44 would add unnecessary bureaucracy and hinder pragmatic decision making. I am alive to the case studies that my hon. Friend brought to the House’s attention and will look carefully at them in understanding the consequences of the point he makes. I am happy to continue to discuss that with him, but as things stand I am not convinced that his amendment is necessary.

Amendment 37 seeks a specific duty on authorities to deliver social care provision in EHC plans. As I said in Committee, existing duties in section 17 of the Children Act 1989 provide important protections. I understand concerns that this is a general, not an individual duty, but I fully expect that local authorities will provide care services to meet assessed needs. In the case of disabled children, the Chronically Sick and Disabled Persons Act 1970 applies, and once the authority is satisfied it is necessary to provide support and assistance, it is required to do just that. I do not think it right to prioritise, as a matter of course, children with EHC plans over all other children in need, who would then risk being marginalised—I am thinking, for example, of children suffering neglect or abuse.

On amendment 39, I know that my hon. Friend has concerns about clause 21, and my hon. Friend Mr Jackson, among others, has also raised this issue. Clause 21(5) fulfils an undertaking I gave during pre-legislative scrutiny of the Bill that we would maintain existing protections, including case law. The subsection was included to preserve the current position whereby, of course, there is no duty to secure the health provision in plans. Amendment 39 goes further than current case law and would define all social care and health care provision made for a child or young person with SEN as special educational provision, if it was in some way for the purposes of education or training.

I have looked again at clause 21, taking account of the views put forward by my hon. Friend the Member for South Swindon and others. Under the broader, integrated assessments and plans in the Bill, decisions will be between special educational, health and care provision. Without clause 21(5) it may be difficult for a tribunal to say that although speech and language therapy is health care provision made by health care providers, it is in fact special educational provision. The clause also enables appeals to the tribunal in respect of health provision where it is defined as special educational provision, as now. However, as my hon. Friend said at the end of his excellent contribution, we want to get things right, so I am content to continue to listen to the views expressed in the House, such as the wording suggested by my hon. Friend the Member for Beverley and Holderness, and in the other place.

On personal budgets, we debated amendment 70 in Committee and I repeat the assurances I gave then. As I said to the hon. Member for Washington and Sunderland West in Committee, we will take full account of the findings of the pilot scheme as a discrete element of the pathfinder evaluation, and learning will inform the SEN code of practice. I assure her that the cases we have seen to date do not show any negative impacts in the areas referred to in the amendment; they actually show how local authorities can work with schools to improve the quality of provision received without having an impact on the other children and young people. As I am sure she would agree, that is an encouraging picture.

Amendment 38 is a repeat of the probing amendment that my hon. Friend the Member for South Swindon moved in Committee and of the proposed new clause 24 tabled by the hon. Member for Washington and Sunderland West. In Committee, I set out the well-established complaint procedures for complaints about health and social care. Widening the tribunal’s remit would not prevent the existing mechanisms from continuing to be available. The effect of the amendment would be to add to the routes of redress, rather than to simplify them. We are preserving the right to appeal to the tribunal about health and social care provision, where that is mainly for the purposes of education and training. While strengthening the role of health and social care in the assessment process and laying a new duty to provide the health provision set out in a plan, we have maintained the focus on special educational provision in the Bill and as was set out in the Green Paper. It is therefore right that the tribunal should continue to focus on dealing with SEN appeals, where its expertise lies.

Photo of Dan Rogerson Dan Rogerson Liberal Democrat, North Cornwall 3:30 pm, 11th June 2013

The logic throughout what the Minister has set out has been about bringing together providers to offer one point of contact with families and young people affected. If, as the pilots continue and this policy is brought into effect, it emerges that it might be preferable for there to be some kind of unified appeal process, would there be the mechanism to bring that about subsequently through secondary legislation? Alternatively, for that to happen would it need to be in the Bill?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

My hon. Friend makes a point about the importance to the parents and the young person of having a single point of access into any complaints procedure. That is why we are looking at how there can be a single point of interface for them, providing them with the information and navigation they require to find themselves in the right part of that complaints process. Clearly, as my hon. Friend the Member for South Swindon said, there are tribunal rules in place and there are always practical ways in which we can look at trying to enmesh more clearly together the various strands in the complaints mechanisms. We need to develop that through the pathfinders and, as we hopefully reduce the number of cases that end up in the tribunal system, see whether that has had an effect. We will keep that under close review.

New clause 24, tabled by the hon. Member for Washington and Sunderland West, was discussed in Committee, following which I wrote clarifying what information was already published. The effect of the new clause would be that details were published by individual case. It would not be appropriate to publish information that could identify details of private cases. Clearly, we want to reduce contention. Publishing information on individual cases is likely to extend the contention beyond the delivery of the tribunal’s judgment.

Information would have to be published on the tribunal service and authorities’ costs, and that raises the question whether information would also have to be published on the relative complexity of cases to justify what may be a proportionate expense. The wish to publish information on the cost to authorities may be based on the misapprehension that authorities usually engage legal representation. The most recent figures show that authorities were legally represented at only 15% of hearings, and in most cases authorities would just be providing information on officer time costs. Publishing seemingly simple information on costs without proper context may well lead to greater confusion, therefore, but I have no doubt that the hon. Lady will want to return to that area in due course.

New clause 8, tabled by my hon. Friend the Member for Torbay, and amendment 65, tabled by Valerie Vaz, both concern children with health conditions. It is right that every child with a long-term health need is entitled to a high-quality education. Their needs must be identified and addressed promptly, so that they can achieve their full potential. Imposing further statutory duties on schools to ensure that is not necessarily the answer, however.

John Healey, in a powerful and passionate speech, demonstrated an acute knowledge of life as a Minister and the response that he was likely receive as to current provision. The Education Act 2002 already places a duty on the governing body of a maintained school to promote the well-being of pupils and, as the right hon. Gentleman said, schools are already under a duty through the Equality Act 2010 not to discriminate against pupils with long-term health problems that have an adverse effect on their ability to carry out their normal day-to-day activities. Nor should we require schools and further education institutions to request an EHC assessment for everyone with epilepsy or a related condition.

In a recent written answer to a parliamentary question, I announced that the “managing medicines” guidance would be issued this year, which will further clarify schools’ responsibilities. I am confident that it will address the right hon. Gentleman’s concerns. However, I take what he said extremely seriously and will look closely at the details of what he and others have proposed. I would be more than happy to discuss these matters with him as we consider how we can improve practice in our schools, some of which is still below the level that we should be seeing. We know from figures cited by my hon. Friend the Member for Torbay that the number of children affected by conditions that require support in school is not small, so every effort needs to be made to improve practice on the ground.

Photo of Adrian Sanders Adrian Sanders Liberal Democrat, Torbay

The statistics seem to show that while there are provisions in previous legislation that are supposed to work, they are not working for large numbers of children with these medical conditions. That is the point of new clause 8.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I understand the intention behind the new clause, but when the raft of legislation directly or indirectly related to the point that my hon. Friend raises is still not bringing about the required support for children in our schools, one wonders whether additional legislation is necessarily the answer. We are seeking to provide the best possible guidance to schools on managing medicines, set against the current legislative framework; and under the new Ofsted inspection of schools, safety is a key feature.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I find the Minister’s answer inadequate. It is shameful that successive Governments have gone for so many years with a significant minority of children simply not having their needs met in school. When they have a condition or a flare-up that requires action, they get sent off to hospital, or their parents get called, whereas if the school had trained someone up, it could meet that need. This is not good enough. The Minister has done so much under the Bill; this is another area where there could be an historic, positive settlement coming out of the legislation. It would be a shame if the opportunity were missed.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I had been doing so well with my hon. Friend, throughout the day. He is quite right to continue to challenge us, and schools, on this point. The question that has to go back to schools is why some are able to manage medicines effectively and others are not. That suggests to me that there is not necessarily a direct relation to the legislative framework that they are working under, and that it is down to differences in practice and to the school’s commitment to dealing with the issue. As I say, I am not stopping the discussion at this juncture. I am sure that there will be other opportunities for us to explore what more we can do. Reissuing the guidance is an important step, because it will provide very clear advice to schools on how they should approach this important issue. We will follow that up closely, both through Government channels and through Ofsted’s work in its role as inspector.

My hon. Friend tabled amendments to part 3 in respect of children who are home-educated. I know, because we have discussed the issue, that he takes a keen interest in these matters, both as the chair of the all-party parliamentary group on home education and as the Chair of the Select Committee on Education. He recently wrote to the Secretary of State about the Bill’s implications for home educators. He will receive a reply shortly. In the meantime, I reassure him that the Bill will bring benefits to all children and young people with special educational needs, including those who are home-educated. In particular, clause 19 says that in exercising their functions under this part of the Bill, local authorities have to have regard to parents’ views, wishes and feelings, which might, of course, include a wish for home education.

Parents will still have the right to educate their children at home. Where local authorities draw up education, health and care plans that say that home education is right for the child, the local authority will have a duty to arrange the special educational provision set out in the plan, in co-operation with the parents.

Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill

I was impressed by almost everything that the Minister said until he got to the words, “local authorities have to have regard to”. Does he not feel that that is rather a weak way to challenge local authorities? Is it possible that people will look at that in another place?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

As to the right hon. Gentleman’s second point, I am sure that they will; that is the beauty of the process that we find ourselves in. We are content that we have the right balance. We also need to be alive to the fact that home-educated children require support—this goes to the earlier point about proportionality and reasonableness—that fits in with their education. Clearly, every child’s needs have to be assessed, and local authorities should have that in mind.

Where a child has a plan that names a school as the appropriate environment in which to receive his or her education, parents will still be able to decide to home-educate; that is an important point. If they do, the local authority must assure itself that the parents are providing an education in accordance with section 7 of the Education Act 1996—that is, a full-time education that is suitable for the child’s age, ability, aptitude and special educational needs. If the local authority is so assured, it will be relieved of its duty to make the special educational provision set out in the plan, just as it is now with regard to statements. However, local authorities will continue to have the power to help parents to make suitable provision in the home by providing support services. To take on the right hon. Gentleman’s point, I would strongly encourage local authorities to consider exercising that power when making decisions about whether the provision being made by parents is suitable.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

My hon. Friend says that local authorities must assure themselves that parents are delivering the education in accordance with 1996 Act. I do not think that that is the case. They have to act if they have reason to believe that parents are not providing suitable education. They have no such overarching duty to assure themselves that every single home educating parent is doing so. The parent, not the local authority, has primacy in the education of their child. The local education authority acts only if it finds out that there is a problem. It does not have to seek it.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education 3:45 pm, 11th June 2013

I hope that our differentiation is based simply on the semantics of some of the vocabulary that is being used, but clearly we need to have absolute clarity on the role of each agency in the life of a child, whether they are educated within the school sector or at home. I will write to my hon. Friend to ensure that he has chapter and verse on precisely that point.

I come now to amendments 60 and 6l. I understand from my hon. Friend that home educators are concerned that clause 23 will mean that local authorities will have to assess every home educated child to see if they have SEN, which takes us back to the previous Parliament, where we had many of these discussions. I can assure him that this is not the case. Clause 23 sets out which children and young people local authorities are responsible for under this part of the Bill. These will be children and young people who have already been identified by the authority or who have been brought to the authority’s attention as having, or possibly having, SEN. There is not that overarching forensic exercise of trying to locate each child.

Amendment 63 seeks to tie the definition of the suitability of any alternative arrangements that parents make for children with an EHC plan more closely to the definition of parents’ right to home educate as set out in section 7 of the Education Act 1996. However, this is unnecessary as the provision in the amendment is already contained within the phrase “suitable alternative arrangements”, so does not need to be spelled out in this way. Similarly, while I understand the concern that amendment 64 seeks to address, it is not necessary. Where a child has a plan that says that education provided in the home is the right provision for the child, the local authority could only cease the plan when it felt it was no longer necessary to meet the child’s needs, as set out in the legislation.

Where parents take a child out of school to home educate and are making suitable provision, as is the case now with statements, the local authority will be under a duty to review the plan annually to ensure that the provision that the parents are making continues to be suitable. The local authority could cease to maintain the plan only where it was decided it was no longer needed to meet the child’s needs. Moreover, the new duty on commissioning bodies to arrange the health provision in the plan and the greater expectation that the social care provision will be made will mean that parents can expect that these will continue to be provided. There is further scope within the code of practice to provide clarity on these issues for local authorities, and no doubt my hon. Friend will want, through his connections with the home education lobby, to contribute to that consultation, which will be happening later this year.

On amendments 40, 41, 42 and 43, I find myself completely agreeing once again with my hon. Friend the Member for South Swindon that some young people with special educational needs require more time to complete the education that other young people have already finished by the age of 18. The Bill rightly enables them to do so, but we want to avoid the expectation that every young person with SEN has an entitlement to education up to 25—a point that I think he accepted in Committee—regardless of whether they are ready to, or have already made, a successful transition into adult life. The Education Committee recommended that we clarify whether there is an entitlement to special education provision up to age 25. The requirement to have regard to age makes it clear that there is not. However, I can categorically assure my hon. Friend that no young person who needs an education, health and care plan to complete or consolidate their learning can be denied one just because they are over 18. Local authorities must rightly consider a range of matters in coming to these important decisions.

Clause 45(3) requires local authorities to consider whether the educational outcomes specified in the plan have been achieved when it is deciding whether it should cease to maintain a plan. The indicative code of practice, at section 6.18, says:

“local authorities must not simply cease to maintain plans once a young person reaches 18”.

They should consider whether young people have met their agreed outcomes, whether continued education will help them achieve those outcomes, and whether the young person wants to stay in education. Of course, in what we hope will be rare instances, a young person may appeal against a decision to cease their plan, a step forward from the current system.

My hon. Friend also tabled amendments 45 and 48. Securing a place at university is a positive outcome for any young person, and we are right to have high aspirations for children and young people with SEN and disabilities. However, it does not follow that higher education institutions must be part of this Bill. Local authorities are not responsible for the education of young people in higher education and it would be unreasonable to hold them accountable for securing special education provision while the young person is there. As my hon. Friend has already noted, the higher education sector has its own very successful system of support in the form of disabled students’ allowance. DSAs are not means-tested, are awarded in addition to the standard package of support and do not have to be repaid. We should not seek to duplicate or replace that system when it appears predominantly to be working well. In the academic year 2010-11, DSA provided 47,400 full-time students with support totalling £109.2 million. The Government also provided £13 million to HEIs in 2012-13 through the disability premium to help them recruit and support disabled students, and in 2013-14 that figure will rise to £15 million.

However, I agree that we must improve the transition to university. Draft regulations require that when a young person is within two years of leaving formal education a review of their EHC plan must set out plans for helping them make a successful transition to adulthood. We will make it clear in the code of practice that good transition planning includes sharing the EHC plan with the university, with the young person’s consent; ensuring that the young person is aware of DSA and has made an early application so that support is in place when their university course begins, on which the hon. Member for Washington and Sunderland West shared her experience with the Committee; and ensuring continuity of health and care services where those continue to be required by the young person. In addition, we will work with those conducting DSA assessments to ensure that they understand the EHC plans, as well as how they can assist and inform the assessment and ensure that details of DSA are included in the local offer so that all young people thinking of applying to university are aware of the support available to them.

Under proposals in the Care Bill, which is currently in Committee in the other place, 18-year-olds with eligible needs will receive a statutory care and support plan. The new legislation will ensure that there is no gap in provision as young people make the transition from children’s services to adult services and, when they move from one local authority area to another, that the new authority continues to meet their needs until it has undertaken its own assessment.

With regard to amendment 47, I agree with my hon. Friend the Member for South Swindon that all young offenders, including those with SEN, need to receive the right support and access to education, both in custody and when they return to their communities. Since our debate in Committee, I have considered the issue further and remain of the view that clause 69 is necessary, not because we are not committed to supporting young offenders, but because it prevents our legislation from coming into conflict with existing comprehensive statutory provisions governing how education support is delivered in custody, as set out in the Apprenticeship, Skills, Children and Learning Act 2009.

My hon. Friend the Member for South Swindon will know that the duties placed on local authorities by that legislation are currently fulfilled through the contracts held by the Education Funding Agency and that local authorities are often not involved. The Ministry of Justice, which funds that arrangement, is clear that the current system is not working, which is why it recently consulted on transformational reforms to how education and support in youth custody should be delivered in future. I have ensured that I have been kept in close contact with Justice Ministers so that the education element for children—not only those with SEN, but others in the care system and elsewhere—is being properly considered as part of the review.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Will my hon. Friend undertake to ensure that when the Bill goes to the other place a careful eye is kept on clause 69 and that the Ministry of Justice moves in a way that is properly co-ordinated so that we do not end up with the nightmare scenario of those young people simply falling through the gap?

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education

I strongly share my hon. Friend’s view. I want to make progress on that, both in my Department and across Government. The commitment I gave him earlier will continue as the Bill moves on and other work is done by the Ministry of Justice on the consultation it has carried out, because it is important that we make as much progress on that as possible at an important stage of development in many of our institutions and within the secure estate.

Clause 69 also plays an important technical function by disapplying duties with the SEN clauses that it would be impractical to deliver while a young offender is in custody. For those reasons, I do not agree that we can simply remove the clause ahead of the significant reforms to education in custody that the Ministry of Justice is considering and the resulting changes that might need to be made to existing legislation. However, I have sought to reassure my hon. Friend the Member for South Swindon and hope that provides him with some confidence as we move forward.

Turning to amendments 71 and 72, tabled by the hon. Member for Washington and Sunderland West, we are continuing to strengthen our understanding of young people’s post-16 educational outcomes. The Department for Education will be publishing destination data on students with SEN at key stage 4 before the summer break, and later in the year for those at key stage 5. The Department for Business, Innovation and Skills already publishes data on participation and attainment in further education by students with SEN aged 19 and over, and that will continue. I do not think that it is necessary to place additional reporting requirements on the further education sector when those data are already being made public. However, as I have said previously, I am sure that she will continue to press that point as the Bill moves on to the other place.

On amendments 73 to 75, we will ensure that any code of practice laid before Parliament has been subject to proper consultation and that Parliament is given the opportunity to scrutinise new or updated versions. Clause 67(2) already ensures that the Secretary of State carries out sensible and proper consultation on the code of practice. We intend to publish a draft code of practice on the Department’s website for public consultation in the autumn of this year and to give ample time for comment, over and above the draft that we provided for the purposes of Committee. If we did not consult appropriately, there would be every reason for this House or the other place to resolve not to approve the code.

The Education Committee considered the careful balance between proper consultation and parliamentary scrutiny and keeping the SEN code of practice up to date during pre-legislative scrutiny. The Bill delivers on their recommendation that the draft should be subject to consultation and approved by Parliament using the negative resolution procedure. This brings the code into line with other statutory codes, such as the school admissions code, and enables an appropriate level of parliamentary scrutiny.

This debate has continued the good faith that has been a hallmark of the progress of this part of the Bill. Given what I have said, I hope that hon. Members will feel sufficiently assured not to press their amendments.

Question put and agreed to.

New clause 9 accordingly read a Second time, and added to the Bill.