New Clause 4 - Consideration of issues of adequacy and discrimination

Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 9:15 am on 5th April 2001.

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`Issues of adequacy and discrimination in connection with the planning and provision of educational and related services to a disabled pupil on transition from the school sector to further education, may either be considered by the Special Educational Needs and Disability Tribunal or may be the subject of civil proceedings, according to the wishes of the pupil concerned.'.—[Mr. Boswell.]

Brought up, and read the First time.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I beg to move, That the clause be read a Second time.

The new clause deals with larger and different issues from those raised previously, and I hope that the Minister will be able to provide assurances on them. Perhaps I may divide my concerns into two categories: procedure and substance.

Our wish as regards procedure—which we have several times expressed, and on which Ministers have typically responded helpfully—is that there should be no black holes in the Bill. I drafted the provision as I did because it occurred to me that there might be a hiatus at the crucial point of transition from school to the post-16 world—typically but not always the world of further education. An individual might not be properly served and the planning of the transition might not be well covered.

By definition, things become more complex, as distinct from complicated, for people with disabilities when they move into post-compulsory education. It may be a matter of physical provision for someone with a mobility problem or a visual or hearing impairment. If a child has been well catered for at school, either in mainstream provision or some dedicated special provision or in a special school, it is important to ensure that similar provision is sustained into the next stage of his or her education. Such young people may have the potential for high attainments and may go on to higher education in the future, but they may also require assistance with their mobility or their sight or the replacement of their sight. That has to be thought out, which is why we were considering transitional planning as far back the Further and Higher Education Act 1992.

Equally, there are real issues for people with learning disabilities. I want to emphasise that point, because I do not think that they have had sufficient attention in the rather truncated discussions that we have had in Committee. I am sure that both Ministers and most members of the Committee will have gone to further education colleges and seen terrifically good provision for young people with learning difficulties. Often, their parents have a large family in which the last sibling has Down's syndrome. The parents worry about what will happen as the young person grows up and goes out into the world, moves away from the world of protected transport and has to do business with adults other than his or her teachers. That is a very sensitive time, and that is why planning the transition is so important.

The new clause is about redress. I have drafted it in a legalistic and slightly quibbling way to find out whether there is complete coverage between school and further education. What, for example, happens during the summer holidays that intervene between those two types of provision? Is there an overlap, or is there a potential gap? As it takes two to tango, I have also suggested that the school should be aligned with the further education college or other institution, and that one way of enforcing that might be for the young person in question to go to the tribunal for school-related aspects of the transition or to the courts in connection with the follow-on further education provision. That is an artificial way of presenting the issue, but it is important that Ministers apply themselves to it and think about it.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

In support of my hon. Friend's argument, I want to draw the Committee's attention to what happens if a young person's difficulties emerge gradually. In the case of a brain-injured person—brain injuries are a particular interest of mine—new difficulties might emerge at different stages of that person's development. Although the short-term impact of brain injury is easily recognised and very apparent, as someone moves through the educational system there may be new challenges and new difficulties. Without communication between institutions, a continuum of care and appropriate study of people's changing needs, people in those circumstances may well be disadvantaged.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

My hon. Friend complements my argument very well. It may be difficult, in purely legal terms, not to shift the legal burden from one provider to another at some stage, and I think that he understands that. Nevertheless, it is important that the two providers and the transitional planning that links them form a continuum of provision. To make a simple point, there should be access to records and other materials. Although such documents would be to some extent confidential, access to them would enable people to examine the development of the young person's situation and to take the necessary remedial action.

There is the legal issue of whether somebody is responsible at all times for the young person's educational provision. If so, is the power of remediation clearly in the hands of the tribunal or the courts? We do not want people to fall through the system and fail to get redress. The Committee will note my suggestion that, at that point of transition, the matter should be determined by the wishes of the pupil. As pupils move from the special educational needs of childhood, they should become more empowered and, unless they are legally incapable, they should be able to express a view about what they want to do. Their contribution to the planning of that transition is important, because they have views and will know what they will be most comfortable with. For example, they may wish to go a particular institution with their colleagues rather than to a strange institution where they may feel less comfortable.

That brings me neatly to what I might loosely call the real world. Some transitional duties already exist but, despite the moral force of the new planning duties that local authorities will be required to fulfil under the Bill, even if transitional planning is not honoured more in the breach than the observance, such duties may not always be as well fulfilled as they should be. LEAs have a duty to drive forward the transitional planning machinery, to hold meetings and consultations, to draw up plans and to prepare young people for further or subsequent education.

Some time ago, in a written question, I asked the Parliamentary Under-Secretary of State for Education and Employment, the hon. Member for Redditch (Jacqui Smith), whether local authorities were fulfilling their plans. I am not asking her to name and shame particular LEAs, but I realise that, in the real world, the word on the street would certainly be that quite a few authorities are delinquent in fulfilling their existing legal responsibilities. The hon. Lady replied by saying, in effect, that if something was wrong the Department would take action.

I have no doubt that the Department could, would and certainly should take action in extreme cases. However, I warn the Committee that those duties are not performed as well or as thoroughly as they should be, and it is hugely important to young people with special needs that they are fulfilled. I leave it to the Committee to decide whether such cases always require LEAs to intervene rather than to facilitate, but the most important thing is to tie it up trilaterally between the school, further education provider and the pupil concerned—and, if necessary, the parents, to ensure a happy transition.

Underlying our concern is that, whatever the Bill says, and whatever the existing rights of young people with special educational needs, let alone any additional rights including the disability rights that we are about to give them, the system does not work as well or as sensitively as it should. That is a pity, and it is to be regretted. Whatever legislation we might pass—including new clause 4 if the Committee thought it appropriate—it would not of itself transform the situation. The law does not make people comply; perhaps it should. As the Minister said in another context, it is often a matter of making a cultural change to ensure its effectiveness.

I would welcome comments on the deficiencies of the new clause, particularly from those interested in this crucial area of transition. Transition arrangements will vary from one local authority or education authority to another. We need to set a better example. Whenever possible the Department needs to provide mechanisms and encouragement to ensure that the system works better. As I said, this is not the time or place to name or shame, but anything that we can do to point local authorities and providers in the right direction will be hugely important.

Photo of Tom Levitt Tom Levitt Labour, High Peak

I am well aware that the Committee made considerable progress during my absence on Tuesday, so I hope that I shall not slow it down today.

I am surprised that the hon. Gentleman has got so far in his speech without mentioning the learning and skill councils, because my understanding is that they have a significant role in the transitional phase.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 9:30 am, 5th April 2001

Indeed, the hon. Gentleman is right. I have been involved with the Learning and Skills Council for six months, and I have not mentioned it this morning. However, it is important to see how everything fits together. The council must provide secure provision for post-16 education, and has a planning duty during the transition. I am sure that it could, if necessary, impose sanctions against delinquent providers. There are several players in the field, and we need to secure a legal framework that prevents anyone from falling into a black hole between the providers and the regulatory authorities, whether the local education authority or the Learning and Skills Council.

We must also ensure, as gently as possible, that existing legislation, as well as the Bill, does what it is supposed to do. No local authority or school is perfect, but I cannot help feeling that this area has not done as well as it should have done, which is probably why we are legislating. More attention to this critical matter in the Committee and the world outside would be beneficial.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

I cannot match my hon. Friend's eloquence, and I feel like Plato following Socrates. The great advantage of Socrates was that he never wrote anything down. I do not know whether that is true of my hon. Friend, but I feel like a pupil standing before the master.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

I shall not take my hon. Friend's analogy as offensive, but I may be able to help the Committee. I remind my hon. Friend of an exchange between our late and enjoyable colleague Derek Enright and me in the Standing Committee that considered the Education Bill in 1992, when that juxtaposition of Socrates and Plato arose. He was surprised that I laughed at his intervention, and I had to explain to the Committee that Socrates was my old dog and Plato was my current dog.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

Order. I sincerely hope that the hon. Member for South Holland and The Deepings (Mr. Hayes) will not continue that discussion.

Photo of John Hayes John Hayes Shadow Minister (Education) (Schools)

No, Mr. O'Brien, I have no intention of going into detail about Athenian philosophers.

I want to emphasise two points that are pertinent to my hon. Friend's contribution. First, we know that the transition period in people's education is critical to their progress. I am thinking not only of people with special needs, but pupils and students generally. The most recent report of the Office for Standards in Education paid particular attention to the difficulties faced by students as they move from one institution to another, such as moving information between institutions, communications between them, and the shock of new social and cultural factors. That is particularly so for people with special educational needs.

Imagine children moving from the protective atmosphere of a special school into further education to pursue a course in a larger institution with a very different atmosphere and a larger range of characters and personalities than they have been used to. People who are particularly vulnerable will find the transition more challenging than will mainstream students, who also find it difficult We know that the transition is a problem and that it produces particular needs. Ofsted has suggested that there is a problem with the transition between primary and secondary education, and that it has an impact on children. We know that that is exaggerated for people with emotional and behavioural difficulties and other special needs, because Ofsted has told us so.

The second issue that I want to flesh out—I mentioned it in an intervention on my hon. Friend the Member for Daventry—is that superimposed on the problem of people moving from one institution to another is the possibility that their needs might change. It is worth re-emphasising that, although we tend to think of special needs as static, many are dynamic. They change as people develop and get older, and as the condition from which they suffer changes. That has a real impact on their abilities and disabilities, and their capacity to deal with change.

Some 10 per cent. of children have an illness that can cause acquired brain injury, and an enormous number of children and young people are treated for brain injury. Established evidence shows that communication between different agencies that deal with such children and young people—for example, the health service and education—is typically rather poor. We know from the UK Acquired Brain Injury Forum, Headway and other agencies that complaints have arisen. The Minister has addressed the issue in the House, saying that the Government are aware of the problem and are looking at ways to improve co-ordination. However, we should remember that the problems are real.

Given that transition presents a particular problem in respect of special needs, and given the even greater difficulty for those with a dynamic special need, the least that we can do is to ensure that provision follows a continuum, and that the Bill enshrines an obligation for agencies involved in statutory and further education to communicate better. That would ensure good communication, because all the wisdom and knowledge gained during the early education of an individual would be transmitted to the further education institution.

Like many suggestions and proposals made during our deliberations, the new clause would add to the Bill and is in no way a negative or spoiling clause. In my judgment, it would strengthen Ministers in achieving what they claim to want to achieve. If it is not accepted, results are likely to remain variable.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

I shall speak briefly. Having listened with interest to the platonic relationship between my Front-Bench colleagues, I hope to support them in an appropriate role, although my knowledge of Greek does not enable me to describe it exactly.

I am concerned about the Learning and Skills Council, to which reference has been made. Although I did not participate in the Standing Committee that considered the relevant legislation, I have corresponded with the director of education for my education authority, who was concerned to discover that responsibility for all post-16 provision will shift to the Learning and Skills Council in 2002. For that reason, the new clause might be of even greater importance, because it would protect the interests of children in such circumstances.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

A simple point that should be made clear. Regardless of how the legal labels or responsibilities change, there will still be a point at which responsibility will be passed on, and the new clause would ensure satisfaction in respect of the continuum that my hon. Friend the Member for South Holland and The Deepings described.

Photo of Mr Nick St Aubyn Mr Nick St Aubyn Conservative, Guildford

My hon. Friend has worded the new clause in such a way that it can envisage every eventuality.

Will the Minister explain how the Learning and Skills Council will cope with its new responsibility in respect of children with special educational needs? My local director of education in Surrey has expressed serious concerns about whether the new learning and skills councils will be up to speed in all their areas of responsibility. It is regrettable that, as a result of the transition from training and enterprise councils to learning and skills councils, many people who were involved in the sector and had a great deal of knowledge have decided to move on. There is always an argument for bringing in new blood and taking a fresh approach. However, those coming into the learning and skills councils are fresh to the field and, although they may bring with them valuable business experience and a wider view of what is required, they are on a very steep learning curve. That is especially true with regard to special educational needs. People may need more time to come up to speed, given that they will be responsible for all post-16 education in just a year's time.

Having been in correspondence not only with the director of education in Surrey, but with the leadership of our local college, I know that people fear that the LSCs are having difficulty in achieving the breadth of expertise that they will need in time to take on their new responsibilities. In that context, will the Minister explain how the Bill will protect the interests of those with special educational needs as they enter post-16 education, and say whether she agrees that the new clause would bolster their interests and give them the added protection that they need?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I am pleased that we are having this short debate about the difficult issue of transition. It is difficult to get it right in theory—although I believe that we have achieved that through the framework of the Bill—and even more difficult to convert that theory into practice. Having had long discussions with people with a wide range of disabilities, not least with learning difficulties and severe brain injuries, I know that transition is of great concern to them. They worry about whether services are properly planned, and whether they can take equipment across various institutions. The Government are constantly trying to address those concerns.

As my hon. Friend the Under-Secretary and I sat here thinking about all those Greek analogies, we felt that it was all Greek to us and that we could not cope. We were then helped by my hon. Friend the Member for Southampton, Test (Dr. Whitehead), who said that the hon. Member for South Holland and The Deepings ought to have said that he feels like Boswell following Dr. Johnson.

We believe that the Bill provides the appropriate legal cover to ensure that children, throughout their time at school and as they move into adulthood, are protected properly during the period of transition. Turning that into operational effectiveness is the key issue that we will all have to work on, and it would be absurd for us to promise in Committee today that everything will work smoothly, especially in the early days. As the hon. Member for Guildford (Mr. St. Aubyn) said, in establishing new institutions there are bound to be hiccups on the way until people have been properly trained in their new jobs and are used to them. However, the structure of the system is appropriate and has enough checks and balances to ensure the protection of individuals as children or as adults as they move through the educational system.

The Secretary of State always has the power to intervene if he believes that a school is not responding appropriately. That might apply in cases such as those to which the hon. Member for South Holland and The Deepings referred—for example, when it is necessary to determine whether a change in an individual's disability or condition has been properly assessed and responded to.

Disabled students' transition from school to further education and training should be appropriately catered for. That is why, under section 140 of the Learning and Skills Act 2000, statemented pupils going on to post-16 education or training will be assessed during their last school year. That can also be arranged for other young people with special educational needs. The new Connexions service will be the agent for ensuring that such assessments take place.

We are developing a framework to support the Connexions service's personal advisers in their assessment and planning work with young people. We are also working with the post-16 disability consortium to ensure that it meets the needs of young people with learning difficulties and disabilities, about whom the whole Committee is concerned, and that the Secretary of State carries out the new responsibilities under section 140 of the Learning and Skills Act 2000.

We also expect the new learning and skills councils and the Connexions service's personal advisers to work closely with further education colleges and other providers, and with the young people, to ensure delivery on what is agreed as a result of the assessments. We aim to meet the needs of young people with learning difficulties, and to provide them with a smoother transition into post-16 provision. That is why the 2000 Act introduced changes to transition planning. It should take place from the time of the young person's first annual review of their statement after their 14th year, which, under the revised codes, will happen in year nine. The revised codes will contain strengthened guidance on transition planning, reflecting the establishment of the Connexions service.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 9:45 am, 5th April 2001

The Minister is being helpful, but for the avoidance of doubt, will she confirm that some of the transitional duties will bite on children with special needs who are not statemented, although the duties are more specific towards those who are?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

I am happy to confirm that. We hope that section 140 assessments will build on previous work, which will help the transition process.

I will address some of the specific concerns that hon. Members have raised. Under section 13 of the Learning and Skills Act 2000, the Connexions service and the learning and skills councils will have a responsibility to have regard to the needs of learners with difficulties or disabilities. That provision was included in the Act by an amendment in another place, to ensure that all those connected with the learning and skills councils, and the institutions for which they are responsible, properly meet such people's needs. The combination of section 140 assessments and section 13 duties should persuade Opposition Members that we have tried to create proper transition protection.

Summer holidays have been mentioned. When a young person moves from school to college, the college will be responsible for preparing for admission. The Connexions service will probably be responsible for general support during the holiday period because it will have undertaken the assessment during the student's latter days at school.

Several hon. Members mentioned the provision of information on transition. The current SEN code of practice gives advice on the transfer of information, and that will be strengthened in the revised code. The Connexions service will seek the agreement of students and parents for the transfer of information. A statement of the SEN transitional plan will be sent to the Department of Social Services and post-16 providers. Information will be properly shared so that the best services can be provided to the pupil in transition.

The hon. Member for Daventry asked whether the views of the pupil or young student would be considered during the transition period. The current SEN code of practice advises that the views of pupils must be taken in account. The revised code and supplementary guidance will strengthen that advice, especially on transition. The principles that it must be young people centred and must consider their views lie at the heart of the Connexions service.

The hon. Member for South Holland and The Deepings asked what would happen if someone's condition changed during his or her period in a post-16 institution. I reassure him that the Connexions service has the power to assess any young person of up to 25 years of age whom it believes to have special educational needs.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

On the competence of the individual components of the Connexions service, we have heard a great deal about personal mentors, and I have exchanged parliamentary questions and written answers in relation to the qualifications required. If there are to be such assessments in the Connexions service, will the Minister assure us that those who carry them out will be fully competent on educational grounds? Even if they are not front-line advisers, will they have recourse to persons capable of ensuring that assessments are seen to be professionally respectable?

Photo of Margaret Hodge Margaret Hodge Parliamentary Under-Secretary (Department for Education and Employment) (Employment and Equal Opportunities)

The hon. Gentleman raised that issue during consideration of the Learning and Skills Act 2000. As he knows, personal advisers will be drawn from a range of backgrounds, depending on the needs of young people in the partnership area. It will be important for personal adviser networks to include personnel who have special knowledge and expertise in dealing with learning difficulty and disability issues. The hon. Gentleman should be reassured to learn that that will include specialist careers advisers. We are piloting a training programme for personal advisers in the Connexions service, which will include training on the Connexion assessment framework, which sets out the process by which personal advisers can make assessments of students. They will therefore know what duties are owed to students, and institutions will be clear on their obligations.

I have covered most of the specific issues raised in a debate that concerned transition rather than the rights of individuals to seek redress during the transition period, which is why I have focused on that. Following my reassurances, I hope that the hon. Gentleman can withdraw new clause 4.

Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment)

As I said on the previous new clause, we have had a good discussion on an important issue of substance and legality. Opposition Members have had some reservations about the operation of the Learning and Skills Council, though, we should record, in fairness, and following the comments of my hon. Friend the Member for Guildford, that the LSC has been in existence for all of four days: if it has not yet bedded down, we can understand why. The same applies to the Connexions service, which is being rolled out across the country and has not yet extended nationally. We may be sceptical about how it will fit together, but the Minister has demonstrated at least that there is a principle of provision. The issue is being addressed in principle, but there is a great deal more to be done in practice. However, in a spirit of goodwill, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.