Amendment 80

Schools Bill [HL] - Report (2nd Day) – in the House of Lords at 5:30 pm on 18 July 2022.

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Lord Hunt of Kings Heath:

Moved by Lord Hunt of Kings Heath

80: Clause 49, page 46, line 5, after "may" insert "by regulations" Member's explanatory statementThis amendment, together with the amendment in Clause 49, page 46, line 7, is aimed at ensuring that guidance given to local authorities in relation to school attendance under sections 436B and 436G of the Education Act 1996 must be subject to the affirmative regulation making process.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, I also have Amendments 81 and 83 in this group. I am very pleased that the noble Lord, Lucas, is supporting Amendment 80 and my noble friend Lord Knight is supporting Amendments 80, 81 and 83. I have just been in the Procurement Bill debate in Grand Committee, so if I repeat points that have already been made then I apologise to noble Lords. These amendments are concerned with Part 3, the provisions in relation to school attendance and the duty to register children not in school. The Minister will know of the concerns; in fact she has just reflected in her wind-up speech on some of those that have been expressed by noble Lords.

My particular interest is the special needs of children being educated at home with special educational needs and mental health issues. It is fair to say that many parents already find that the current attendance policy and enforcement system can have a negative impact on mental health and well-being. They are concerned about the ramifications of the Bill: the register, the live attendance tracker, the tighter lacing of attendance enforcement and the fast track to fines and prosecutions.

It is clear that Ministers have listened to the debate, and I am very grateful for the amendments that have been tabled, which are aimed at providing assurance to families over the information to be prescribed, its intended use and what can be published, and to give Parliament increased scrutiny of the use of delegated powers concerning those matters. My three amendments encourage the Government to go a little further in terms of reassurance.

My Amendment 79 would ensure that local authorities, in the case of a child or young person with special educational needs, must have regard to a number of matters that I set out in the amendment: first,

“the views, wishes and feelings of the child and his or her parent, or of the young person”; secondly,

“the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned”; thirdly,

“the information and support necessary to enable participation” by the parents or child in those decisions; and, finally,

“the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.”

The amendment seeks to emphasise to local authorities that, in the duties they are given under this part, they should take into account the special circumstances particularly of young people with special educational needs and the reason why they may have been taken out of school for home education, which is often that they have felt that the school has failed to give those young people the support that they need. I know my noble friend is sympathetic to the issues here.

My other amendments relate to the guidance to be issued by the Secretary of State to local authorities in the exercise of their functions. Helpfully, the Minister has said that that guidance will be informed by working with local authorities, home educators and other stakeholders and will be subject to public consultation, which is very helpful, but special consideration needs to be given to children with special educational needs. I am proposing that, accompanying the guidance, there should be a code of practice clearly establishing how local authorities should take a holistic approach to school attendance issues, particularly embracing the mental health of the child affected.

I also think the guidance should not simply be Secretary of State guidance; it needs the backing of being introduced as a regulation through the affirmative process. It is right and proper that Parliament should at least have some kind of scrutiny, because the guidance will be so important to making these measures operate effectively.

At heart, what is needed—and I very much approach what Square Peg and Not Fine in School have said—is a compassion-based response from local authorities and schools that recognises that mental health is a legitimate reason for authorised absence in some cases. Many of these young people have very special needs. They may have a disability, chronic illness or medical needs or experience mental ill health.

I have spent most of my life in and around the health service, and we know that current mental health services for young people are, frankly, grossly inadequate. The long waits and the scandal of in-patient care hundreds of miles from home are indications of the issue that we face. I know the Government have put money in and are anxious to see improvements, but the fact is that on the ground helping young people to get access to mental health services can be very challenging. All I am asking is that in the guidance, and in the code that I am suggesting, there is a clear indication to local authorities that in those circumstances they have to be sympathetic to the needs of a child and their parents if they are receiving health treatment and there are issues about attendance. I beg to move.

Photo of Lord Lucas Lord Lucas Conservative 5:45, 18 July 2022

My Lords, I have Amendment 82 in this group, asking that local authorities give reasons when they choose to deviate from guidance. I hope this will be dealt with in guidance rather than in the Bill, but it is important that both local authorities and home educators come to regard the guidance as something to which they can resort for support. Therefore, when local authorities need to go outside the guidance, as they may, that should be clearly explained.

I very much support the amendments that the noble Lord, Lord Hunt of Kings Heath, has proposed, in particular Amendment 81. It is important that there is a strong set of guidance around attendance. This is a change of structure for local authorities. They are taking on much more of a responsibility that was formerly shared with schools. We will need them to reach deeper into the reasons for non-attendance and to deploy other strengths that local authorities have to deal with those reasons, going well beyond the usual educational provision. To have a set of guidance that enables them to do that well and to have ways of sharing good experience will be really helpful. In the next group we come to the punitive side of this. We really ought to be strong in making sure that as few families as possible get tipped into that, and guidance seems to be a clear part of that.

I have one question on government Amendment 99, which applies to regulations passed

“before the end of the session of Parliament in which the Schools Act 2022 is passed.”

I wonder whether it should refer just to the first passing of the guidance. Given the extended timescale on this Bill and the consultations we hope to have, it may run beyond that. The Government are really saying that they do not want this to last for ever. It should cover the first issuing of regulations, whenever that may happen to occur, and we should not have to rush things just because we have this in the Bill. If it is passed next year, will it still be the Schools Act 2022 or will it be the Schools Act 2023?

Photo of Lord Addington Lord Addington Liberal Democrat

My Lords, I support the thrust of these amendments. They follow on from my noble friend Lady Brinton’s amendment on the fact that specialist guidance and help will be needed. The education sector is going into an area where it does not expect to have the expertise readily at hand. It may have to go and find it, and the parents are often the people who have done the finding. I hope that, when the Minister comes to answer, the Government will give us a little insight into how they expect to handle this process. We are talking about often very seldom-occurring incidents, which means that we cannot expect there to be group memory. These are incidents occurring not only infrequently but over long periods of time; certain combinations of events come through. Stress tends to trigger mental health incidents. If a child happens to have been failing at school, they and their parents will have more stress. It does not take a genius to take it to the next step. I hope the Minister will give us an idea of the Government’s thinking and how they are proposing to address these very real concerns.

Photo of Lord Wei Lord Wei Conservative

My Lords, I will speak to Amendment 119, and am generally supportive of a lot of the other amendments relating to mental health. Amendment 119 is conceived as a means to cut through what I believe will be quite a lot of court cases and judicial reviews. As we have discussed on this grouping, there will be instances in which local authorities make a judgment about home education, whether in the case of mental health or involving families with a particular faith or philosophy around education. My concern is that, even if the Government in their own impact report feel that they have satisfied all human rights obligations—bear in mind that concerns are raised in that report that Articles 8 and 9 will be intruded or infringed upon to some degree—how can we be so sure that the local official in the local authority has the expertise to make a judgment? In some cases, given the context or circumstances, they may go beyond what is right in terms of human rights. This may lead in turn to many judicial reviews. I believe that in the home education community there are already attempts to start raising the funds for such action. That will be costly for all concerned. It may delay for many years the implementation of what the Government are trying to do here, so I ask the Minister to look at this whole area.

A lot hinges on the composition of this consultation committee, review committee or implementation committee. In the interests of transparency, I would love to know the criteria for inviting those to join such a group and to have reassurance as to whether they will be preselected to be favourable towards the Government’s current views or will be genuinely independent members with genuine expertise in some of the really sensitive matters that will be dealt with as the Government seek to implement this.

I can tell from the House’s view that, from my point of view, this part of this campaign must come to an end. I will not seek to divide the House any further today, but I know that there will be many discussions in my party over the summer, whoever the two candidates for the Conservative Party leadership are. With all due respect, I believe this is not a Conservative Bill. Our party is about many things but really it is about letting people get on with their lives, and many aspects of the Bill currently do not make me feel that it is following that principle. I think many home educators will write to their MPs and come along to various hustings around the country to make that view known to those candidates. We should probably ask them what they think of this Bill so that we can get an early view as to what will happen to it in the autumn.

I would be pleased to know more from my noble friend the Minister how the guidance provided will be consulted on, including with those of us who have spoken in this debate. Clearly, a lot hinges and rides on that.

I will stop there, but I think my noble friend the Minister and the Government have heard strongly the views of many in this Chamber, including those such as me who do not believe the Bill is a great idea. It is now up to them to see if they can get it through the Commons and into statute and, in so doing, make sure they look after the welfare—as I believe they claim to do—of home educators up and down this country.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Justice), Shadow Spokesperson (Education)

I will not speak to the Tory leadership election.

We support the approach suggested in many of the amendments in this group. To pluck one out of the air at random, Amendment 81 tabled by my noble friends Lord Hunt and Lord Knight, suggesting a code of practice—which is really just another way of sharing best practice—is a positive suggestion. We recognise completely that poor attendance can be a symptom of a much deeper problem and that schools often take a holistic approach already. The amendment suggests that families and organisations with experience of overcoming barriers to attendance be included in the Government’s thinking. It is a very good idea and seems to be the right approach. Even if we do not divide the House on this today, it is a good suggestion for the Government to consider this code of practice further.

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

I thank the noble Lord, Lord Hunt of Kings Heath, for hotfooting it over here from the Grand Committee. I also thank him and my noble friend Lord Lucas for their Amendments 80, 82 and 83, which I will speak to together.

I mentioned earlier that the Government are already seeking the power for the Secretary of State to give local authorities in England statutory guidance that they must have regard to. Local authorities will not be able to diverge from it unless there is a coherent reason to do so.

It is expected that the statutory guidance will be used to set out operational and day-to-day processes for how local authorities should implement their new duties under new Sections 436B to 436G. There is a risk that placing this level of detailed guidance in legislation could result in guidance for local authorities becoming more rigid and less able to be adjusted to better support operational need. For example, we intend to outline in the guidance how local authorities should work with home educating families, but it may be that there are circumstances where a local authority needs to diverge from these guidelines, such as where a home educating family expresses particular preferences on how they should be engaged with based on their specific circumstances. We think that level of flexibility is important, but I assure noble Lords that if the department received reports that local authorities were not following the guidance, that would be followed up as a matter of urgency.

As mentioned, the guidance will be developed in close collaboration with local authorities, home educators and safeguarding partners. I reassure my noble friend Lord Wei that we will ensure that we engage a wide range of people in that process. We think that is the appropriate level of scrutiny, given the likely operational and technical nature of the content.

I thank the noble Lord, Lord Hunt, for Amendment 81. The department has recently published new attendance guidance, Working Together to Improve School Attendance, which we will make statutory through this Bill. This guidance is clear that local authorities and schools should work together, and with pupils and families, to understand the barriers to attendance and to put measures in place to support regular attendance. As the noble Baroness, Lady Chapman, said, there is already really good practice in schools, taking a holistic look at this. To elaborate slightly further, under the new guidance schools are expected to support pupils with health conditions by developing a whole-school culture that promotes the benefits of attendance. While recognising the interplay between wider school strategies on health and well-being, schools are also expected to have sensitive conversations with pupils and families with health conditions. These conversations should avoid stigmatising pupils and parents and instead work with them to understand how they feel and what they think would help improve their attendance.

Additionally, schools are expected to ensure that pastoral care is in place for pupils who need it and refer pupils to support from other services and partners, such as the local authority and health services, in a timely manner. We heard from the noble Lord about the availability of those wider support services. We have discussed previously the need to improve the availability of those, and steps are under way to do so. We acknowledge that there is much more to do in that space.

The guidance also sets out that, for local authorities, this means working with schools to identify pupils with barriers to attendance at an earlier stage, putting in place appropriate supportive interventions in collaboration with other services and partners, including mental health services. I hope that gives noble Lords some reassurance.

On Amendment 119 from my noble friend Lord Wei on the human rights implications of the children not in school measures, I reassure him that a full and thorough assessment on the compatibility of the measures in the Bill with the European Convention on Human Rights has been undertaken and published by the Government. This assessment was considered by the Joint Committee on Human Rights, which did not raise any concerns about the Bill’s compatibility with the convention. Parliamentary process already affords adequate opportunity for scrutiny, and it is right that scrutiny on whether the provisions strike the right balance of individual rights takes place here in Parliament before the Bill receives Royal Assent rather than afterwards, as this amendment seeks to achieve.

On the question about Royal Assent, we understand that if the Bill ends up not getting Royal Assent until 2023 then references to the “Schools Act 2022” will automatically be updated to the “Schools Act 2023”. I will double check that that is the case, but I am sure that, if any tidying up needs to take place, we will do so. My noble friend is right that the intention of the government amendments, which I am about to come to, is to have that procedure in place for the first set of these regulations.

I move on to those amendments and the importance of scrutiny, which is a common thread through all the government amendments. I and my noble friend Lady Barran have listened to concerns, and I hope that through Amendment 86, in the name of my noble friend, I can offer some reassurance that Parliament will be afforded ample opportunity to scrutinise the regulations to be made in relation to the registers ahead of their implementation. This amendment would ensure that the regulations prescribing information to be recorded, how registers are maintained and what information is shared with the Secretary of State are subject to the affirmative procedure the first time they are made, and the regulations prescribing those with whom information can be shared subject to the affirmative procedure each time. This will provide for greater parliamentary scrutiny at the points at which there will be the most impact, while avoiding disproportionate checks and balances on technical details that could, in turn, delay or disrupt the running of the registers.

Amendments 98 and 99, in the name of my noble friend, make corrections to Clause 60. Amendment 99 would permit the Secretary of State to apply legislation that was made before or in the same Session as the Schools Act 2022—or 2023—rather than, as in the clause as currently drafted, before or in the same Session as the Education and Skills Act 2008. This supports the Government’s objective of ensuring that all children receive a safe and suitable education by ensuring that independent educational institutions can be brought fully into the purview of other legislation which applies to independent schools in England.

With that, I ask that the noble Lord, Lord Hunt, withdraw his amendment and that other noble Lords do not to move theirs.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 6:00, 18 July 2022

My Lords, I am very grateful to the noble Baroness. The noble Lord, Lord Lucas, has been in this House even longer than I have, and it is amazing what we have learned today about what happens to the date on a Bill—though 2023 maybe optimistic, who knows?

The noble Baroness has reflected on the importance of the guidance to be given to local authorities to approach this new role in a sensitive way. I support the general principles here. Whatever our views, that brings us together, because it will be essential that local authorities do the job properly, and they need support to do so. The statutory guidance and consultation she referred to are very welcome indeed.

Then noble Baroness felt that my suggestion that the guidance should be brought in through a regulation would be rigid. However, in our debates, today and previously, we have recognised the importance of this guidance. It is in some ways as important as what is set out in statute. I would have thought at least on the first occasion, when the guidance is brought in, it should have the benefit of parliamentary scrutiny. I think it is something we ought to come back to on Report. If she accepted my code of practice, that would be a way of getting the flexibility that I understand she needs, alongside statutory provisions. It has been a very useful and constructive debate,

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

Just briefly, I should make it clear to the noble Lord that we are at Report stage and I do not think we will be returning with amendments from the Government at Third Reading.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

The noble Baroness almost tempts me to push this to a vote, but I would not be allowed to. I have come straight from Committee to Report—I apologise. I beg leave to withdraw my amendment.

Amendment 80 withdrawn.

Amendments 81 to 85A not moved.