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Clause 47

– in a Public Bill Committee at 4:00 pm on 17th March 2009.

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Provision of education for persons subject to youth detention

Photo of John Hayes John Hayes Shadow Minister (Education)

I beg to move amendment 127, in clause 47,page 29, line 32, leave out ‘A local education authority’ and insert

‘The Young People’s Learning Agency’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following: amendment 378, in clause 47, page 29, line 32, leave out ‘education’.

Amendment 128, in clause 47, page 30, line 2, leave out ‘a local education authority’ and insert

‘the Young People’s Learning Agency’.

Amendment 212, in clause 47, page 30, line 5, after ‘learning’, insert ‘or language’.

Amendment 129, in clause 47, page 30, line 7, leave out ‘a local education authority’ and insert

‘the Young People’s Learning Agency’.

Amendment 130, in clause 47, page 30, line 9, leave out ‘a local education authority’ and insert

‘the Young People’s Learning Agency’.

Amendment 131, in clause 47, page 30, line 11, leave out ‘a local education authority in’ and insert

‘the Young People’s Learning Agency’.

Amendment 132, in clause 49, page 31, line 11, leave out ‘home authority’ and insert ‘Young People’s Learning Agency’.

Amendment 232, in clause 49, page 31, line 14, at end insert—

‘(2A) In carrying out the duty imposed by subsection (2) the home authority must have regard to any special educational needs or learning difficulties (within the meaning of section 15ZA(7) and (8)) the persons may have.’.

Amendment 133, in clause 49, page 31, line 15, leave out subsection (3).

Amendment 379, in clause 49, page 31, line 16, leave out ‘education’.

Amendment 134, in clause 49, page 31, line 27, leave out ‘a local authority’ and insert

‘the Young People’s Learning Agency’.

Photo of John Hayes John Hayes Shadow Minister (Education)

It is good to be back after a splendid lunch. I had a glass of champagne. I do not know what you had, Mr. Chope, but I am sure that the Minister is equally fortified and ready for this afternoon.

Having accused the Minister for Schools and Learners of being limacine in respect of the progress towards self-regulation in further education, I fear I will now be rather slow myself. We are about to deal with a large group of amendments on an important clause, and there is much to be said in the interests of improving the legislation and representing the interests of learners and others.

Clause 47 inserts new section 18A into the Education Act 1996. The new section will affect the local education authorities for England and Wales in respect of the relevant use of accommodation in their area. Hosting authorities will be required to secure that

“enough suitable education and training is provided to meet the reasonable needs” of children and young people in the youth justice system who are held in those establishments.

Amendments 127 to 129 and 132 to 134 probe the reason for provision through local authorities in new section 18A, questioning why the responsibility cannot be transferred to the Young People’s Learning Agency. A theme emerged before lunch, before the hon. Member for Yeovil joined us, and I feel that it is necessary to acquaint him with that theme so that he can better do his job here. In essence the theme was about the Opposition challenging the new involvement of local education authorities through this legislation and Government resolutely defending that backwards step.

In a sense, the group of amendments continues that theme. As I have argued—I thought pretty persuasively but clearly I did not persuade Ministers earlier—it seems that by involving more agencies in the management and funding of skills and training we are likely to end up with a system that is less cost-effective, more insensitive, less responsive to need, more bureaucratic and more opaque. Once again in this part of the Bill, we see that opacity in a new role for LEAs in dealing with youth detention, which is currently the responsibility of the Learning and Skills Council. We believe that it would cause the least disruption and have maximum effect if those young people who are already disengaged are not put through the upheaval of being passed from and between different local education authorities.

Bear in mind that many of the young people will not have had a happy experience of education earlier in their lives. Often they have been failed by the system the first time round and deserve better. The Young People’s Learning Agency would be a better place to deal with young offenders serving their sentence outside their own local authority area.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I must confess that I had a similar reaction when I first thought about the clause, but does the hon. Gentleman  agree that a policy that addresses all the issues of a young offender—housing and education, for example—is probably best brought together at local level and in conjunction with the children’s trust? If we parcel it off to the YPLA, I am a little concerned that we will not get the other connections right.

Photo of John Hayes John Hayes Shadow Minister (Education)

That is a good argument. There is indeed a case for a holistic approach. The difficulties are that some of the matters concerning young people will not be dealt with by local authorities anyway, if there are health issues, for example, associated with those young people’s welfare and circumstances. Clearly there will be issues involving matters of justice, and they might face other challenges that are outside the competence of local authorities. It is clear that the local authorities will have to interface with a wide variety of agencies in the same way that the Young People’s Learning Agency would if our amendment were passed.

The real problem is that people may be moving between institutions. Indeed, they may be well outside their own local authority area. There is no guarantee that they will be in custody in the place where their family is based, where they have a history and where information about them is easily accessed. It would be better for the sake of clarity and lack of complexity and possible bureaucracy to channel the work through one agency rather than a multiplicity of local authorities.

While we welcome a statutory responsibility for the education of those in detention—one of the points made by the hon. Lady—there is a big gap in how we deal with the education and training of people who are detained in that way, particularly so for young people. Indeed, much of the evidence from independent reports as well as from the Government’s own analysis suggests that there is a long way to go to get the education and training of offenders right. We therefore welcome a new focus on the subject.

It seems that the provisions under proposed subsections (1)(a) and (1)(b) are likely to lead to some confusion and to a lack of a joined-up approach to the provision to which the hon. Member for Mid-Dorset and North Poole referred and which Opposition Members want. We feel in particular that proposed subsection (1)(b)(ii) and proposed subsection (4) might cause problems due to the transitory nature of the detention of many of the young people concerned. In essence, a young person might be the responsibility of one LEA at home, but another in youth detention.

With a movement between LEAs, those in detention could find themselves passed from pillar to post and subject to the arguments of different funding authorities. The impact of that would be felt most negatively in respect of the progression of the young people. Let me support that argument by referring to what happens in much prison education at the moment. The Minister might want to comment on what is a significant problem that is founded on the lack of consistency of provision for those in custody. People often start one course with one tutor, but are then moved to a different institution and, unable to complete the course, the relationship formed between teacher and learner is broken. There is a lack of follow-through of what people have started so they have to begin all over again. Thus there is a real lack of consistency in how we make opportunities available to those in custody, yet we know that recidivism is linked closely to a lack of skills and education. In a  sense, the Bill is part of a bigger issue: how we train and educate those in custody and our mission, which the Government probably share, of improving that provision, particularly in respect of greater consistency.

The movement to LEAs should in the eyes of the Government create the greater focus that we seek, but that can work only if LEAs are ready and quick to do the job and there are doubts about that. It is an important new responsibility for local education authorities and we want firm assurances that they are indeed tooled up in resources and skills. Thus far, not much evidence has been brought to that effect. As the Special Educational Consortium argues, the drafting of the clauses leaves some questions unanswered regarding the provision for people with special educational needs who are detained, the prevalence of which is sadly significant.

Reports from the Youth Justice Board found that about 150,000 children and young people under the age of 18 enter the youth justice system each year, of which about 70,000 are of compulsory school age. It has been found that 33 per cent. need help with reading and writing and 15 per cent. have SEN statements compared with about 3 per cent. of the general population. Some 83 per cent. of boys in custody have been excluded from school and 41 per cent. of boys and girls in custody were aged 14 or younger when they were last in school.

Those young people face multifaceted problems and need to be provided with opportunities through a more consistent, more coherent package of measures to deal with both their core skills and their aspirations to achieve more. I think that Members across the Committee will understand that unless we do that, we are likely to exacerbate a cycle of disengagement. It is vital to get the Bill right.

The interim report of the Bercow review of services for those with speech, language and communication needs indicates that at least 60 per cent. of the 11,000 people passing through young offender institutions each year have difficulties with speech, language and communication. A recent Department of Health report highlighted that a quarter of children in contact with youth justice have learning disabilities. Offenders fall into three main categories: those with learning disabilities, the wider group with learning difficulties, and the largest group with some kind of borderline problem. There are few young people in those circumstances who do not require an entirely fresh approach to education and training. As I said earlier, they have often failed the first time around.

There are three other worries, however, about the clauses, which have been highlighted by the Prisoners’ Education Trust and the Standing Committee for Youth Justice. First, among all the other funding priorities that LEAs have, how will the provision for those in detention centres be ensured? How will we build on the support for those young people? What priority are LEAs likely to give them? I was a member of a local authority. You, Mr. Chope, served in a distinguished fashion in such a capacity and other members of the Committee may have done so too. How will a local authority respond to demands on its resources from that quarter, when many of the young people concerned  will not necessarily be from its locality—merely residing there temporarily—and when there are other demands on resources from schools and other places that are strongly supported by the local community? We are handing local education authorities a poisoned chalice, and it would be much better for an agency that did not face those pressures to have responsibility for this important area. These young people need second chances to put things right, not inadequate provision and closed doors.

Secondly, have the Government considered whether some LEAs will be disproportionately burdened by youth detention centres in their area? Clearly, those that have many young people in custody in their locality will bear a much greater responsibility—in quantitative terms—than those that do not. How will the Government deal with that, in terms of funding, resources, support and so on, and how dynamic is that support likely to be? These are rapidly changing circumstances. Fortunately, many people who pass through youth custody are there relatively briefly. I guess that is the nature of youth custody. How responsive will the system be to change? Will the funding follow the learner or will it have to come from the same budget as funding for all other provision? Will the funding be ring-fenced? If so, how, and how will that work in the context of local authority finance, which is difficult to understand? I remember that when I was a member of Nottinghamshire county council I proposed or seconded amendments to the budget. For a fleeting period I understood local government finance but then the moment passed and I forgot about it. My current understanding of it is about as great as that of most Members of Parliament and most members of local authorities, but the Minister will have a clearer, more comprehensive and more incisive view about those things and we look forward to benefiting from her knowledge and insight.

Thirdly, what provision will there be for information sharing and joint curriculum development, not just across local authorities but—further to the intervention from the hon. Member for Mid-Dorset and North Poole—across a variety of agencies? As I said, although some of the responsibilities of local government are such that they would be able to provide a semi-holistic service—it would be honed in some regard—there is no guarantee that local authorities would be good at accessing information from other agencies or relevant sources, or indeed passing that information on. It is not just about gathering information; it is about how that information is stored, handled and how it would be passed on as a legacy of knowledge to the people who might be dealing with that young person as they move through the system. What use is it to the young person concerned if they move from one LEA to another and that second authority has little or no information about them and so attempts to approach them in a different way, offering them a different educational diet unaware of their progression? That is not fanciful, given what I said earlier about the record on education, skills and training of offenders generally, which is at best—at my most generous—patchy. That was raised, as the Minister will know, by the Standing Committee on Youth Justice as a distinct worry and should be addressed to minimise the disruption to those learners who have often already suffered so much disruption in their lives.

Clause 92 makes provision for the CEO of the SFA to secure education for those youth offender institutions accommodating 18 to 20-year-olds, raising the question  as to why 16 to 18-year-olds cannot be dealt with on a national basis, which may eliminate the vagaries of geographical caprice in their treatment.

Amendment 99 is reasonably self-explanatory in that it aims to ensure that learners in youth detention receive a minimum of 30 hours per week of education or training. This ensures that learners have a maximum chance while in detention to engage in education and successfully as a result gain skills which enable them to re-engage in employment and—

Photo of John Hayes John Hayes Shadow Minister (Education)

That was a mere aside. In terms of this peroration that was barely a word. I really only meant helpfully to set the matter in context for the benefit of the Minister before she gives what I think will be a scintillating response to these few brief words. [Interruption.] The Minister for Schools and Learners is intervening from a sedentary position but I will not be goaded by him, despite the fact that I described him as being sluggish earlier. He has clearly tried to disprove that by the energy of his sedentary intervention.

Amendment 212 aims to ensure that LEAs take account of learning and language difficulties. I mentioned the Bercow review earlier and the profound issues around the language skills of many of the young people we are speaking of in this part of the Bill. Those in detention who may not be able to speak English as a first language or who suffer speech impairment may be significantly disadvantaged by this clause. This amendment should be used to establish guidance on this matter. Barnardo’s is most concerned about this and seeks the reassurances that I articulate in these comments and through this amendment. It is particularly concerned that the duty on LEAs to ensure education for the group of children with language difficulties includes a clear requirement to meet the needs of children with statements and those whose first language is not English. It is also anxious that if children are detained outside their home local education authority that the home LEA must co-operate with the LEA where they are placed to ensure that suitable educational support is provided immediately on release.

Amendments 378 and 379 are probing amendments, once again stimulated by the Standing Committee for Youth Justice, to clarify how guidance under these clauses will be applicable to both the host and home local authorities, to children’s services and youth offending teams as well as to education services. We also seek assurances that the guidance will specifically address the issue of information sharing, sentence planning and curriculum content in the way that I mentioned earlier.

These amendments will allow the Minister to confirm that guidance will be applicable not only to LEAs, but to those other agencies in order to ensure effective joint working between the various arms of the local authority in this matter. This is necessary, given that new subsection 18A requires host local authorities to have regard to any guidance issued by the Secretary of State and new section 562C, inserted by clause 49, does the same for the home authority. This guidance should  address a number of issues. This is an important matter and a number of outside bodies, agencies, representative groups and charities are particularly concerned about this aspect of the Bill. These matters deserve airing.

To ensure that a child is able to fulfil their learning potential it is vital that information about the young person’s educational needs and experience is shared between host and home authorities quickly and readily as a child goes into custody and then again to prepare for their release. The speed and readiness of the process is what I am trying to highlight here because, as I said, these can be highly dynamic circumstances where, without that alacrity, there will be failures that impact on the young person concerned. It requires schools and local authorities to have joint working protocols with youth offending teams and the secure estate.

That is particularly important for children with special educational needs, for some of the reasons I gave earlier. That is certainly the view of the SEN consortium which suggests that the host authority should meet the child’s recognised special educational needs where applicable and be in accordance with part 3 of their statement of special educational needs. That will be workable only if the information regarding SEN and the statement itself is made available in a timely manner. Will the Minister therefore confirm that the issue of information sharing will be addressed in the guidance and if so, how?

In essence our concerns about these matters are founded on doubts about existing practice. You will know, Mr. Chope, with your comprehensive knowledge and profound interest in these things, that the National Audit Office report in 2004 found that only 6 per cent. of youth offending teams were able to confirm that young people could continue education started in custody after release, mainly because of logistical problems in finding suitable courses, reluctance by some young people to attend and difficulties in persuading schools to accept young people who might have previously been excluded. So how will the guidance associated with the Bill ensure that kind of continuity in what is offered to young people, both in terms of information sharing and in placing them in appropriate training or education once they have been released?

With those few remarks on these important matters, I invite the Minister to address some of the critical questions that we have raised. We have discussed these matters at length with some of the bodies that had the greatest expertise in dealing with young people and the bodies that also have considerable doubts about the effectiveness of some aspects of the Bill. We do not for a moment believe that the Government are not as concerned as we are about these things, but we have real doubts about whether all the measures have been thought through as fully as they might have been.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education) 4:30 pm, 17th March 2009

I will be brief. This is an important clause as it deals with yet another area that has been long neglected. Although I might not agree with all the comments made by the hon. Member for South Holland and The Deepings, I agreed with a great deal of what he said. This is an occasion where we must get it right.

I have given a lot of thought to the balance between the local authority where the institution is located, and the home authority where the young offender has some  residence. I think that the measures in the Bill are right, but it will be incredibly difficult to implement them well and we must be aware of that. It has not always been easy for youth offending teams to keep track of everybody in institutions when they have a lot of people on their books and are spread out all over the place. In Dorset, for example, young people can find themselves miles away from home, which makes it difficult for the youth offending team. That means that there is a burden of resources on both the home and local authorities, and both must be resourced adequately to make the provision work. There must be staff in the home authority with the specific duty to liaise and ensure that it works.

I am entirely in sympathy with amendment 232. As the hon. Gentleman pointed out, one of the big issues is that for various reasons young people may have missed out on basic educational skills. The one true way to rehabilitation and an end to reoffending is to break that cycle. Addressing special educational needs is really important. In instances of speech and language difficulties, addressing those needs could mean that there is the chance to overcome those disabilities. That is an unusual situation, but it could happen. Come what may, we know that educational retainment will be low and there is a huge challenge to be tackled at that level. It is important not to get into a downward spiral regarding children and young people who, for whatever reason, have not managed to get a basic level of education up to this point.

There are many opportunities. Many of us will have heard about the apprenticeships that Transco has provided in various youth institutions. Those have set up young people and enabled them to move into a job. If the approach in the Bill can provide opportunities for apprenticeships, it will make a big contribution to the future. I support the approach, although there are a lot of ends that need tying up and we need reassurances. We also need monitoring because the danger is that a young person could fall between different authorities.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

First, I shall speak to amendments 127 to 131. We have heard from the hon. Member for South Holland and The Deepings that their intention is to place a duty on the Young People’s Learning Agency to secure the provision of education and training in juvenile custody, rather than see the duty placed on local education authorities, as in the Bill.

I recognise the concerns that, as drafted, the duties will mean that LEAs that have juvenile custodial establishments in their area will need to secure provision for young people from different local authority areas who are detained in their establishments. I also sympathise with the concern that we need to ensure consistency in the approach to education and training provision across the juvenile secure estate. However, clause 47 is at the heart of our reforms to improve education and training for young people in juvenile custody and to ensure that education and training arrangements for that group are aligned as closely as possible with those in the mainstream sector.

We intend the duties on the home and host local authorities to promote continuity and consistency in provision. That would certainly not happen by giving the duties to the YPLA because provision should mirror the mainstream as much as possible. We expect local  authorities, as the strategic commissioners of children’s services in the mainstream sector, to be in the best position to secure education and training to meet young people’s reasonable needs while they are in juvenile custody. Our proposals to make LEAs responsible for education and training in juvenile custody will establish clear accountability for children and young people’s learning, aligned with the mainstream sector, for children and young people’s learning.

The hon. Members for South Holland and The Deepings and for Mid-Dorset and North Poole expressed concerns about a local authority’s capacity to deliver. We will be working on a national delivery framework, which will be developed in partnership with central and local government, the Youth Justice Agency, the National Offender Management Service and the Prison Service. We will consult to ensure that there is a delivery framework and will issue statutory guidance. The YPLA will play a vital role in supporting LEAs, and the React programme, established in the LGA with the support of the Association of Directors of Children’s Services, is working to prepare local authorities for their new responsibilities.

A concern was also expressed that some host local authorities may be disproportionately burdened because they have a young offenders institution in their area. However, they will receive specific funding and resources for this purpose via the YPLA. There were also concerns about information sharing but, if I may, I will defer my remarks on that until we get to the proposals on information provided by the home LEA, particularly, on SEN. They are in new clause 17, which we have not got to yet.

Photo of John Hayes John Hayes Shadow Minister (Education)

Local authority funding seems to be critical. The Under-Secretary has reassured the Committee that the affected local authorities will receive extra funding. Will it be ring-fenced? How will it operate year by year? Clearly there are long-term planning issues associated with this work, so will the funding be annual or over an extended period? I also raised a point about dynamism. Circumstances will change radically according to the number of young people that the local authority is responsible for and their particular needs, such as learning difficulties.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

We intend the YPLA to play a pivotal role in ensuring equitable distribution of funding. The arrangements for exactly how that will be managed will be developed with the YPLA.

I expect that another argument for not using the YPLA is that, as hon. Members are aware, it will cover England only and its jurisdiction is not planned to be extended to Wales. We have worked closely with the Welsh Assembly Government to consider the best approach for people in juvenile custody, and we propose that a consistent approach across England and Wales, where LEAs take on the function, is the best way forward. However, in England, the YPLA will have an important role in ensuring consistency of approach for education and training provision across the country. The Welsh Ministers will fulfil that function in Wales and will work with relevant partners to agree and set parameters for education and training in juvenile custody.

For those reasons, I propose that clause 47, as drafted, provides the best way to ensure that we align education and training in juvenile custody with the mainstream  sector and to ensure that the needs of those children and young people are met. I thank the hon. Member for Mid-Dorset and North Poole for concurring with the view that this is the best approach.

Amendments 132, 133 and 134 relate to clause 49, which places a duty on the child or young person’s home LEA to promote the fulfilment of that person’s learning potential while they are in custody and on their release. We intend for that duty to play an important role in fostering a consistent education experience for children and young people in juvenile custody. For the first time, one authority will need to maintain involvement in the young person’s education, regardless of where that person is in the system. That will also help to ensure that young people’s education and training needs are picked up on their release from juvenile custody.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

I am concerned that the home authority will need additional funding to cope with the responsibilities of tracking and making sure that the young person is receiving the education. Can the Minister say something about the resources for the home authority?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I am sure that that is something that will be developed in our framework, particularly with the YPLA having the overarching responsibility to ensure that there is equitable funding across the system from the home LEA and the host LEA.

Many young people are held in custodial establishments located in LEA areas that are different from where they live, so the individually owed duty is an important mechanism for ensuring that a young person receives a consistent experience.

I sympathise with hon. Members’ intention to place that duty on the YPLA. That would be particularly applicable if the YPLA were also to be responsible for securing education and training, as proposed in hon. Members’ previous amendments. However, the YPLA, as a national agency, would not be in a position to consider the individual needs of every young person in juvenile custody and would not be the appropriate authority to be able to, for example, transfer information about the young person’s prior learning needs, or to take such steps as securing appropriate educational training places for the young person on their release from juvenile custody.

We believe that placing that individually-owed duty on children and young people’s home LEAs will be a huge step forward in terms of fostering consistency of provision for that group and in encouraging information exchange about young people’s personal educational needs.

Photo of John Hayes John Hayes Shadow Minister (Education)

I am anxious, as other Committee members might be, about who will be the owner of the information to which the hon. Lady refers. This is a complex matter. We are talking about gathering information from a variety of sources, ensuring that that information is accurate and then passing it on to a variety of others in order to ensure not only the coherence, but also the continuity, that we seek. Are LEAs equipped to do that? What database will they use? Can the Minister say something about the protocols involved? This is very challenging and I am not yet convinced that LEAs are equipped, or as I put it earlier, tooled-up, to do the job.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Maybe I have more faith in the ability of local government than the hon. Gentleman. There is a huge will among local authorities, particularly with their new responsibilities for the children’s trusts boards, to make sure that those things happen. As I said, we will be strengthening provisions as we get on to our two next sets of amendments, which will give local authorities the power to enable that information-sharing to happen.

I understand that the intention of amendment 212 is that the duty to secure suitable provision for persons in juvenile custody should specifically require LEAs to have regard to children, or young persons, with language difficulties when securing suitable provision. However, that amendment assumes that a person’s language needs are not already included in the definition of special educational needs or learning difficulties. As hon. Members might be aware, the definitions of special educational needs and learning difficulties are set out in section 312 of the Education Act 1996, and in section 15ZA of that Act, as inserted by the Bill. Clause 47 should be read alongside that.

Section 312 provides that the child has special educational needs if he has a learning difficulty that calls for special education provision to be made. It is therefore implicit in the 1996 Act that language needs are encompassed in the definition of special educational needs. We consider that clause 47 already provides that host LEAs will need to have regard to young people’s language needs.

Photo of John Hayes John Hayes Shadow Minister (Education) 4:45 pm, 17th March 2009

I apologise for interrupting the Minister again, but these are really important matters. I did not really follow the Minister’s last remark. I was the shadow schools Minister when my hon. Friend the Member for Bognor Regis and Littlehampton regarded that post merely as a distant ambition, among his many objectives, and I remember serving on a Bill Committee that I suspect was one of those to which the Minister referred in relation to SEN. One of our concerns about statements was that they were not necessarily holistic or comprehensive in taking into account the subtle needs of children. The young people concerned might be statemented for emotional and behavioural difficulties, for example, but if they have language problems, it is not absolutely certain that those problems would be identified in that EBD statement.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Statutory guidance in the SEN code of practice divides SEN into four categories, including communication and interaction, which encompasses speech, language and communication difficulties.

Photo of John Hayes John Hayes Shadow Minister (Education)

I am grateful for that assurance, which has educated me, if no one else, but what about the quantification of the provision needed to meet those challenges, because the critical things about that guidance are the specificity of the provision to meet statemented needs and how that provision can be quantified? Perhaps the Minister will say something on that.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

The point I am trying to make is that I do not think that the requirement on local authorities to have regard to SEN—I might be corrected by a little note if I am wrong—refers specifically or only to statemented young people. I need to clarify one  further thing: it is implicit in the 1996 Act that those reasons are other than those relating solely to the fact that a language in which a person is taught is different to that spoken in the person’s home, a point to which the hon. Gentleman referred.

During the passage of the Education and Skills Act 2008, we committed to work with the Communication Trust and other relevant organisations to develop training materials for those with responsibility for the education of young people in juvenile custody. We published our response to John Bercow’s review of speech, language and communication needs last year, which set out a series of initiatives across Government to improve services for children and young people with speech, language and communication needs.

The development of an improved awareness of the importance of speech, language and communication and better support for those with SLCN across universal, targeted and specialist services will also help young people in contact with the youth justice system. Our action plan made a commitment to develop a joint commissioning framework on services for children with SLCN through up to 20 local area pathfinders. We are currently selecting those pathfinders, and it is intended that they will include services for children in contact with the youth justice system, including those in custody.

Photo of John Hayes John Hayes Shadow Minister (Education)

I wonder whether I might helpfully intervene while the Minister seeks further inspiration. What proportion of young people who are incarcerated or detained at home and who do not have a statement acquire one thereafter? If a young person who is detained has profound difficulties that have not been identified earlier in their school life, it seems critical that we should put in place measures that allow those difficulties to be analysed and dealt with in an appropriate way to move them on and improve their chances. Does that happen, and if not, why not?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Obviously, I do not have that information to hand, but I will write to the hon. Gentleman on that point. We will also make clear our expectations for the provision of education and training and for meeting the SEN of young people in custody through statutory guidance to local education authorities. That will be developed in partnership with stakeholders and will be consulted on.

With regard to amendment 232, to which the hon. Members for South Holland and The Deepings and for Mid-Dorset and North Poole both referred, I understand that its intention is to amend the new duty inserted by clause 49, which is to promote the fulfilment of a person’s learning potential while they are in custody and on their release, so that it specifically requires the home authority to have regard to any SEN or learning difficulties the person might have. However, our view is that in taking steps to promote a person’s learning potential the home authority will already need to take account of any SEN or learning difficulties that person might have. We will also issue statutory guidance to local authorities, which home local authorities must have regard to when exercising their duty to promote the fulfilment of the person’s learning potential while they are in juvenile custody and upon their release. That  will set out our expectations that, in doing so, the home local authority should take steps to help to ensure that a person’s special educational needs and learning difficulties are met.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I just wanted to take the Minister back to a comment that she made earlier, which clarified an earlier comment that she had made during her remarks that language difficulties were not included in the other clause that she referred to. If the language difficulty arises because English is not the person’s mother tongue, and if she is conceding that point, she is not providing a sufficient argument against Barnardo’s, whose concern led to our drafting amendment 212. Yes, Barnardo’s is concerned about children with statements, but it is also concerned about children whose first language is not English. If she is now saying that the Bill does not cater for such children, then she has not provided this Committee with an argument against amendment 212.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

The Bill is in line with any other Bill about the responsibility of the local authority, whether or not people are in the secure establishment. Currently, there is nowhere in the legislation that requires a local authority to include as a special educational need the fact that the language in which a person is taught is different to that spoken in their home. As we all know, that does not necessarily mean that in other parts of educational establishments those needs are catered for and I envisage that, in our statutory guidance, we would include guidance about that too.

I thank hon. Members for amendments 378 and 379, which are timely amendments. Before we introduced the Children’s Act 2004, which brought together education and children’s social services functions to deliver the Every Child Matters agenda, the term “local education authority” was widely used. Since then, those working in this sector have used the term “local authority” to encompass everything that they do for children and young people. Our communications with the sector and stakeholders have reflected that change.

As the Committee will have noticed, the Bill is peppered throughout with the term “local education authority”. I want to reassure the Committee that that is not a mistake. The Bill has been drafted in this way because the order-making power in section 162 of the Education and Inspections Act 2006 to change the term has not yet been used. I am pleased to put on record that it is our intention, subject to the will of this House and the other House, to lay that order at the end of this parliamentary Session. A copy of the draft order was sent to all members of the Committee recently and it is also available in the House Libraries.

Given this information and my assurances, I trust that hon. Members will withdraw amendments 378 and 379, along with the other amendments that I have referred to.

Photo of John Hayes John Hayes Shadow Minister (Education)

I remain concerned about these matters. I have no doubt about the good intentions of those involved, which the Minister described as the “goodwill” associated with these matters. I have absolutely no reservation about the “goodwill”, either of Ministers or indeed local authorities. I am well aware of the sterling work done by councillors of all political persuasions in  local authorities up and down Britain. However, I do not think that bowling local authorities a googly and then saying, “They are people of immense goodwill”, is quite the way to proceed. This measure is certainly a googly; there is no question about that. It is an immensely deceptive area and it is very easy to get this wrong.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Will the hon. Gentleman acknowledge that I certainly did not intend that this measure would go ahead solely on the “goodwill” of local authorities? Instead, the powers that we have put in and the framework that we are going to deliver will enable local authorities to deliver the measure, with their “goodwill” as well as the powers that we are giving them.

Photo of John Hayes John Hayes Shadow Minister (Education)

The Minister, in responding to the amendments that I proposed, suggested that her faith in the “goodwill” of local authorities was greater than mine. Now, I am arguing that my faith in their “goodwill” is just as great as hers, but that my doubt about the capacity of local authorities to deliver these provisions is rather greater than hers, not because of any fault on their part but because this is an immensely complex area. As I said, it is deceptive in its complexity, because of the need to draw information from a variety of agencies and the need to pass that information on speedily and effectively.

The Minister offered me few assurances about the systems that are in place and almost nothing about the protocols that I asked for. Just in terms of the data, this matter is immensely complex. A series of independent parties have doubts about the effectiveness of databases in respect of Connexions. That is not an allegation of the Opposition, but an observation based on evidence. It is no wonder that so many third party organisations have expressed concerns about this power. Those organisation have expertise in this field that certainly exceeds mine and may even exceed the Minister’s.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Will the hon. Gentleman acknowledge that the delivery framework we are developing to bring all people together will develop the very protocols he is talking about? All the parties involved will be consulted.

Photo of John Hayes John Hayes Shadow Minister (Education)

Again, I have no doubt about the willingness to consult. The Bill is a move from the Stalinist, Soviet Russian view of the world that was embodied in the Learning and Skills Council to Byzantium. As I said this morning, at least a Soviet approach brings a certain predictability and consistency. Byzantium was an altogether different affair and it is made real in these provisions with a multiplicity of local authorities dealing with some of the most challenged young people. As a Parliament and as a civilised society, we have a profound responsibility for those young people. They deserve a better deal, a fairer chance and greater opportunity.

My amendments seek to create a more straightforward system by giving those responsibilities to a single agency. This is not an open and shut case. The hon. Member for Mid-Dorset and North Poole is right that something about local responsiveness is attractive. I mentioned earlier that we are advocates of local government so you, Mr. Chope, and Committee members have experience  in that regard. As such, we always want local authorities to play an important role in these matters. However, I am not sure that we should hand them the competence for this matter when there are real doubts about their capacity to deal with it, although there are few doubts about their willingness.

I have amplified many of the questions that have been put by a series of third parties. They are of such significance that I am inclined to divide the Committee on amendment 127 to put them on the record. If passed, these matters would be passed to the YPLA rather than to local authorities. That is not because I do not believe in the good will of local government but because I believe in these young people and their futures and I want the best for them.

Question put, That the amendment be made.

The Committee divided: Ayes 5, Noes 10.

Division number 11 Nimrod Review — Statement — Clause 47

Aye: 5 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 5:00 pm, 17th March 2009

I beg to move amendment 99, in clause 47, page 29, line 38, at end insert—

‘(1A) In deciding for the purposes of subsection (1) whether education or training is enough to meet persons’ reasonable needs, a minimum of 30 hours per week of education and skills training must be provided.’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss Government amendments 340 to 342, 348 and 349.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Most children should be able to decode words effortlessly by the time they are five or six. Every child, except those with specific neurological problems, should be a fluent reader by the time that they are seven. I make absolutely no apology for labouring those points at every opportunity, because the full scandal of how we have been teaching children to read in the past 40 years has yet to be revealed. Statistics for 2007 show that 48 per cent. of prisoners had a reading age of 11 or less, 65 per cent. had maths skills below those of an 11-year-old and a staggering 82 per cent. had handwriting skills at or below those of an average 11-year-old. Reading those statistics makes one realise the full horror of what happens when children fail to acquire such basic skills at an early age.

A 2003 inspectorate of prisons report revealed that 83 per cent. of boys and 65 per cent. of girls under 18 in custody had been excluded from school. More than 40 per cent. were 14 or younger when they had last  attended school. I strongly believe that the fact that so many 11-year-olds still struggle with reading when they start secondary school lies at the root of their disaffection. How do we help those youngsters in youth custody? The answer must lie in education in the basic skills and more that lead to a general education.

Action for Children is a voluntary sector provider of children’s services that shares our concern about the quality of education for young people in custody. Action for Children states:

“Within the secure estate, education and training provision is patchy. There is a commitment of 30 hours per week of education and skills provision, but figures suggest that the average amount of time spent on education and training is much lower.”

Amendment 99 would therefore insert into clause 47 a provision defining whether education or training is enough to meet a person’s reasonable needs by requiring at least 30 hours a week, or six hours a day. Given the importance of education in today’s competitive modern world and the poor education suffered by most young people in custody, the amendment is essential.

When I was a member of the Education Select Committee, we conducted an inquiry into prison education. What we saw in our prisons when it came to education was appalling and contrasted heavily with prison education abroad. The churn of prisoners meant that education was given a low priority by prison officers. Education in youth custody is not quite as bad, but a statutory duty to provide 30 hours a week would focus priorities in our system. In an important 2002 report, “Reducing Re-offending by Ex-Prisoners”, the social exclusion unit concluded that employment reduces the risk of reoffending by between one third and one half, and that prisoners who did not take part in education were three times more likely to be re-convicted than those who did. If we believe that education is vital to help young offenders back on to the straight and narrow, Ministers should support amendment 99.

We agree with the Government amendments grouped with amendment 99, as they seek to ensure that those in youth detention receive the same education provision as those in mainstream schools. Government amendment 340 defines the curriculum to be used as either the national curriculum or a local curriculum and requires learning providers to use information from the student’s home authority, but I have a question for the Minister on that amendment. Clause 47(2) says:

“In deciding...whether education or training is suitable to meet persons’ reasonable needs, a local education authority must...have regard to—

(a) the persons’ ages, abilities and aptitudes;

(b) any special educational needs”.

The amendment adds to that three more requirements. The first is the desirability of enabling persons to complete programmes of study or training that they have begun. My concern here is about the wording. If when deciding whether education or training is suitable to meet the person’s reasonable needs, a local education authority must have regard to the desirability of enabling persons to complete programmes of study or training which they have begun, that could be interpreted to mean that if the young person will be unable to complete a particular course or training once they leave custody, it will not be  necessary to provide it in custody. I should like some reassurance from the Minister that that will not happen in practice.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education)

Some very important points have been made by the hon. Member for Bognor Regis and Littlehampton. It is vital that we get this right. I was thinking outside the box as he was speaking because it strikes me that whether or not they have special educational needs, each young person needs an individual learning plan under these circumstances. Needs will vary from individual to individual. It is difficult to start specifying precisely. I have witnessed voluntary work in Feltham young offenders institution which was very good. The programme gave individual attention and was honing basic writing skills. So each individual young person will have specific needs and there needs to be a tailored programme. I shall confess my ignorance here. I do not know whether prison education is inspected. I think it should be. So I should like to ask the Minister about that. I support all the sentiments behind this, but I feel we should tailor to the individual person and have clear points of progress that can be checked by an independent inspector.

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness

I rise to support amendment 99 and its requirement that young people in custody should be entitled to 30 hours per week of education and skills training. The Minister may be horrified by the cost of delivering that. As well as cost issues there may be practical issues of being able to deliver that within youth custody. But as my hon. Friend the Member for Bognor Regis and Littlehampton made clear, the cost to society of allowing young people whose education has so far been a failure to continue to be uneducated and thus unable to engage in normal employment outside, is far greater.

I therefore hope that the Minister will take this issue extremely seriously. I also put to her the proposal that she might look to amend the Bill so that, given the lamentable educational standard of most people who enter youth custody, entering youth custody triggers an SEN assessment. Under the Bill it is not the home authority that will have to deal with the young person when they leave custody, but the authority in which the institution sits. It will have to make the assessment and provide the funding and I fear that without the long-term commitment that the home authority would have, it may interpret the Bill to mean looking at any already established special educational needs of a young person who is in custody. It will certainly have no economic incentive to make such an assessment and thus be obliged to allocate additional resources to help that young person turn their life around. I hope that the Minister will also comment on that proposal—that entering youth custody would trigger a formal assessment of special educational needs.

Photo of Sharon Hodgson Sharon Hodgson Labour, Gateshead East and Washington West

I was heartened to read Government amendment 340, and especially proposed new subsection (c):

“the desirability of enabling persons to complete programmes of study or training which they have begun”.

I know that we are not discussing this here, but I seek guidance as to whether that wording will also appear with regard to apprenticeships—I hope that it will—and if so where. When might we expect to debate that?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I will start with amendment 99. The hon. Member for Bognor Regis and Littlehampton says that his intention is to further define in the Bill what is meant by ensuring that suitable education is provided to meet the reasonable needs of children and young people in juvenile custody, by specifically requiring a minimum of 30 hours of education and training per week. I sympathise with the view that we should include specific requirements such as the number of hours that should be delivered per person per week. However, the clause makes it clear that LEAs must, in determining whether provision is suitable, have regard to the persons’ ages, abilities and aptitudes and any special educational needs or learning difficulties they might have.

We understand from working in close partnership with our colleagues at the Youth Justice Board and from wider stakeholders that it is not always practical, or in fact desirable, for young people to participate in 30 hours of education and training per week. As we can all appreciate, young people in custody often have complex needs, which require a range of interventions and support, and we want to ensure that regimes in custody are able to support those needs. For some, that might mean receiving at least 30 hours of education a week, but others might have wider needs. For example, they might need to participate in drug detoxification and behaviour programmes. We therefore propose to set out our more detailed expectations for what education and training should be delivered for children and young people in custody in guidance, in which we can be clear that provision should be able to be adapted to meet children and young people’s needs. That was, I think, the point made by the hon. Member for Mid-Dorset and North Poole.

Photo of John Hayes John Hayes Shadow Minister (Education)

The Minister makes a case for a more flexible approach because of the particular needs that the young people might have, but it would be entirely possible in guidance to speak about a normal expectation of 30 hours of education or training per week, excepting for the kind of circumstances she has described. If the guidance were less robust, doubts would take root about just how much education and training young people would receive as a norm.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I take on board the hon. Gentleman’s points and when we put our statutory guidance together we will consider how it could be worded so that the expectations are as I am sure we all wish them to be. However, it is not necessary to put that requirement in the Bill. Amendment 99 is therefore unnecessary and I urge the hon. Gentleman to withdraw it.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Another argument in favour of the amendment is that it does not say that a young person has to complete 30 hours of education. The clause is about a local education authority securing that enough suitable education is provided to meet the reasonable needs, which is defined by the amendment as being able to receive 30 hours of education a week. The young person does not need to attend the education but the LEA needs to ensure that it is provided. It is important that it is because otherwise the LEA will find a whole host of excuses not to provide 30 hours of education in custody.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families 5:15 pm, 17th March 2009

I take on board the hon. Gentleman’s point but it would be too prescriptive to put that requirement in the Bill. I prefer to put it in guidance so that we can emphasise the point about meeting the needs of the individual learner.

Amendments 340, 341 and 342 would strengthen the clause, while amendments 348 and 349 are technical and consequential. I welcome the support from Conservative and Liberal Democrat Members for the amendments. Given that support and in the interests of time, I do not intend to dwell on their detail. However, I want to put on the record that the assumption is that it is desirable and that guidance will say that young people will be able to continue in education or training obviously subject to the constraints of a custodial setting.

Photo of Graham Stuart Graham Stuart Conservative, Beverley and Holderness

Does the Minister consider that people entering youth custody should trigger an SEN assessment?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

No young person under the proposals will gain a statement while they are in custody because part 4 of the Education Act 1996, which deals with SEN, is suspended while they are in custody. There is a specific reason for that. The statementing process takes a considerable time and most young people are in custodial settings for relatively short periods. We are proposing to suspend the statementing process while people are in custody with a requirement on the home LEAs to pick it up when they return. However, we have not reached that clause yet.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I am disappointed in the Minister’s response, despite her encouraging opening comment that she was sympathetic with our view. I visited several youth custody settings and prisons while I was a member of the Education Committee, when every excuse from churn to the fact that the prison sentences were not long enough was given by prison officers as a reason why education was not provided. I am talking about prisons, not youth custody settings, but in the prisons that I toured back in 2004, the average amount of education given was half a day a week compared with full-time education in most prisons that we visited abroad.

Unless we specify 30 hours a week under the Bill, I am worried that that level of education will not be provided. It might be provided for 20 or 15 hours, but it will be nowhere near to six hours a day, which is essential if we believe that the road to redemption for prisoners is to ensure that they have a full education to equip them to cope in the modern world. Even programming the Sky+ box often requires a sophisticated level of education, let alone finding a job and holding it down.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I am asking the hon. Gentleman to give way because I am not sure whether I will get an opportunity to explain the difference. In the adult prison estate, there is no requirement for any prisoner to participate in education. We are now talking about the youth offending estate, where the responsibility is currently undertaken by the Ministry of Justice and which we are transferring to local authorities. That will be best delivered through statutory guidance not under the amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I understand the Minister’s point, but the ethos that seems to prevail in her custody settings in this country differs from other countries. Since so much is laid out in legislation that is of less significance than the issue that we are discussing, the hon. Lady is wrong not to accept the amendment, which would put into the Bill that young people in custody should be able to access up to 30 hours a week of education. Given that we regard education important for young people in custody, I intend to test the Committee’s view on the amendment.

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 9.

Division number 12 Nimrod Review — Statement — Clause 47

Aye: 6 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendments made: 340, in clause 47, page 30, line 6, at end insert—

‘(c) the desirability of enabling persons to complete programmes of study or training which they have begun;

(d) any relevant curriculum and the desirability that education received by children subject to youth detention should be comparable with education which they could be expected to receive if they were attending a school or institution implementing a relevant curriculum;

(e) the desirability of the core entitlement and the additional entitlement being satisfied in relation to persons over compulsory school age but under 19 who have elected for them.’.

Amendment 341, in clause 47, page 30, line 6, at end insert—

‘( ) In subsection (2)(d), “relevant curriculum” means—

(a) in relation to a local education authority in England, the National Curriculum for England established under section 87 of the Education Act 2002 as subsisting for the time being;

(b) in relation to a local education authority in Wales—

(i) the National Curriculum for Wales established under section 108 of that Act as subsisting for the time being, or

(ii) any local curriculum formed by the authority under section 116A of the Education Act 2002 (formation of local curricula for pupils in Key Stage 4) or for their area under section 33A of the Learning and Skills Act 2000 (formation of local curricula for students aged 16 to 18).

( ) Sections 17B to 17D apply for the purposes of subsection (2)(e) as they apply for the purposes of section 17A.’.

Amendment 342, in clause 47, page 30, line 6, at end insert—

‘( ) Any arrangements made by a local education authority under subsection (1) for the provision by another person (the “learning provider”) of education or training must require the  learning provider, in making any determination as to the education or training to be provided for a particular person, to have regard to any information provided under section 562E by the person’s home authority (within the meaning of Chapter 5A of Part 10) for the purpose of assisting any such determination.’.

Amendment 270, in clause 47, page 30, leave out lines 18 to 21.—(Sarah McCarthy-Fry.)

Clause 47, as amended, ordered to stand part of the Bill.