Clause 49

– in a Public Bill Committee at 5:15 pm on 17th March 2009.

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Persons detained in youth accommodation: further provisions

Question proposed, That the clause stand part of the Bill.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following: Government amendments 351 and 352.

Government new clause 17—Persons detained in youth accommodation: further provision.

Government new clause 19—Release from detention of child or young person with special educational needs.

Photo of John Hayes John Hayes Shadow Minister (Education)

I am delighted to be called to speak on this clause, Mr. Chope. No doubt the Minister will want to draw on her expansive notes to explain the purpose of the amendments and new clauses.

I want to draw new clause 17 in particular to the attention of the Committee. It will insert new chapter 5A, entitled “Persons detained in youth accommodation”, into the Education Act 1996. The new clause goes a considerable way towards addressing some matters that we raised earlier today, as the Minister is acknowledging. It answers some of the questions that I raised on clause 47 and is therefore welcome. However, I have a number of particular questions that I hope she will address.

Proposed new section 562B(3)(b) is of particular concern to the Standing Committee for Youth Justice, which highlighted the short period in which young people are kept in detention and the necessity of planning their reintegration on the first day of release. Will the Minister give guidance as to how that is likely to be ensured, given the wording that she is proposing is,

“where it appears to the home authority appropriate for them to do so, making arrangements for provision, on the person’s release from detention—(a) of education”?

That is an extraordinarily vague proposal when what is needed is clear guidance. Where it appears for the home authority to act appropriately does not assure me that the preparation for the release of the young person and a reintroduction into society is going to be dealt with the rigour and certainty that we would expect.

The second question relates to proposed new section 562C(3). We welcome provision for learners with learning difficulties but this again is quite weakly and, in my judgment, poorly worded. It says that,

“The host authority must use best endeavours to secure that appropriate special educational provision is made for the detained person”.

What precisely does the Minister mean by “best endeavours” and what does she expect the outcome of these best endeavours to be? Will statemented children with special needs and other children with special needs get the educational provision they so desperately need? Where and how will “best endeavours” be more clearly defined?

My third query concerns, in appropriately chronological fashion, proposed new section 562C(4)(c). This gives the power to the host authority to assess whether the special educational provision in a statement of a learner remains appropriate and to take amending steps as necessary. With no provision for updating the statement in this clause, how will the authority judge whether the existing statement is appropriate or accurate or, indeed, inaccurate? Does this not simply mean that local authorities will judge what is necessary according to what they can provide? There are real differences between authorities in terms of the number of statements they issue, the speed with which statements are dealt and the effectiveness of their provision. It seems the Bill will enshrine those vagaries in law in an unhelpful way. We need clear guarantees about how local authorities will behave and what will be expected of them. I am not sure that the Bill as currently worded does that.

My fourth question concerns proposed new section 562E(1). The SCYJ and the AOC have both highlighted the need for sharing information to ensure best provision for those in detention. With this in mind, why does the clause say,

“Any person who has provided education or training for a detained person...may provide information relating to the detained person to—(a) the home authority, or (b) the host authority.”?

Surely, the Bill should say “must” rather than “may”. Is this not again rather weakly and ineffectively worded? The provider should be required to share information or the weaknesses of those LEAs who drag their feet will have a detrimental effect on the interests of learners. If there remains uncertainty about LEA involvement of the kind that I highlighted in our discussion about clause 47 and if these Government proposals are designed to firm up the provision to respond to those criticisms—and I guess they would not have been tabled if that was not the intention—then surely they need to be fit for purpose. I am not sure that they are as drafted.

You will be pleased to know that this is my final question, Mr. Chope; the Minister will certainly be pleased. It deals with proposed new subsections 562G (5) and (6). We welcome the requirement on a host authority to notify the home authority if it believes that a child in detention in its area has special needs, but could the host authority not be given the right to assess those needs, in line with existing, well established statementing practices? In raising these questions we want to ensure that the Government’s proposals are sufficiently rigorous and robust to improve the legislation along the lines that most third parties and we, the Opposition, feel is necessary.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families 5:30 pm, 17th March 2009

As drafted, clause 49 places a duty on the child or young person’s home local authority to promote the fulfilment of that person’s learning potential while in custody and on their release. Amendment 344 removes clause 49, and new clause 17 replaces it and inserts proposed new chapter 5A into the Education Act 1996. Through new section 562B, the chapter also places a duty on the child or young person’s home local authority to promote the fulfilment of that person’s learning potential while in custody and on their release.

The proposed new chapter also includes a power to regulate to modify provisions of the 1996 Act in how they apply to persons detained in juvenile custody. That is necessary where it is inappropriate for certain provisions of the 1996 Act to apply. For instance, the duty on parents to cause children of compulsory school age to receive full-time education should be disapplied while the child is in juvenile custody.

The new chapter makes further provision for persons detained in relevant youth accommodation and significantly strengthens the requirements relating to persons in juvenile custody with special educational needs. If, prior to detention, a person had a statement of special educational needs, proposed new section 562C now requires the host LEA to use its “best endeavours”. The hon. Member for South Holland and The Deepings asked about that phrase; it reflects the fact that it will not always be possible to supply the exact provision in the statement and it is the same as the duty on governing bodies of maintained schools. We will be issuing guidance on what it means.

Photo of John Hayes John Hayes Shadow Minister (Education)

That is interesting. It highlights the reason why I raised the matter in the first place. When a statement is issued, as the Under-Secretary knows, there is an obligation on the authority to meet the needs identified in that statement by providing adequate provision.  Should it be impossible to make that provision within the local authority’s compass, the local authority must acquire additional resource from outside its boundaries. Why should that be different for people who are detained?

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

A statement may require a young person to attend a particular school or include provision for one day a week at an FE college. By virtue of the fact that these young people are detained in a custodial environment, it may not always be possible to deliver everything in the SEN statement, which is why we have the words “best endeavours”.

Proposed new section 562C also requires the authority maintaining the statement to keep a copy of it while the person is detained. New section 562F provides for the transfer of SEN statements and makes provision to ensure that the host authority is aware that an authority was maintaining a statement of special educational needs for a person prior to detention. An LEA maintaining a statement for a person who then enters juvenile custody must, on request by the host LEA, send a copy of the statement to the host authority. The provisions are designed to ensure that the relevant authority has a copy of the person’s statement so that it can exercise the duties set out in the new chapter.

When the person is released, new requirements have been put on the host LEA to inform the home LEA of the person’s release or, if different, the LEA that was responsible for maintaining the statement prior to the person’s detention. The provisions will help to ensure that the appropriate authorities are aware that the person has been released so that, where necessary, special educational provision can be made for the person in the community.

Photo of John Hayes John Hayes Shadow Minister (Education)

The hon. Lady says that the LEAs will be required to make information available, but the wording that she proposes says that they “may” provide information, not that they “must” or are required to or should. How does she reconcile what she has just said with what it says in the amendment?

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

A statutory duty cannot be imposed without a means of enforcing it, so it would require criminal sanctions when a body is not a public body. I will undertake to write to the hon. Gentleman to clarify that.

New section 562A also facilitates the transfer of relevant educational information relating to the detained person in order to ensure that information relating to the person’s prior education and particular needs can be transferred between appropriate persons so that education and training in juvenile custody can, as far as possible, meet the young person’s needs and build on their prior learning.

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

Will the Minister confirm what that relevant educational information will include? Can she confirm that it will not include confidential notes of pastoral- type discussions between the former teacher and the young person?

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

I envisage that it will be educational information, but we will clarify that in guidance. We do not envisage that it will include anything other than educational information.

Specifically, the new clause enables those providing education or training for the young person prior to or during their detention in juvenile custody to share educational information about the person with the home and host LEA, and requires LEAs to comply with any requests for information as soon as practicable. It also requires Welsh Ministers to provide a copy of any relevant assessment reports on request by a home or host LEA. All the provisions will help to ensure that relevant information about the education of children and young people in custody can be transferred so that we can achieve the ends that I am sure we all desire.

Photo of John Hayes John Hayes Shadow Minister (Education)

In respect of new section 562G, there may well be a difference of approach between the home and the host authority. The approach that different authorities take to statementing and special educational needs varies immensely. Why should the host authority not be given a right to carry out an assessment of needs along the lines that I propose? I do not understand why that would not be a positive measure in the interests of the young person.

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

The practical answer is the length of time that young people spend in custody, which in many cases is limited. The time needed for an assessment would be better spent on using the information that we have and ensuring that they have some education while they are in custody, which is the point that was being made.

Photo of John Hayes John Hayes Shadow Minister (Education)

With respect, if the host authority has a responsibility for the young people and it is uncertain about the information that is passed to it about their needs and the provision necessary to cope with those needs, any responsible local authority would want to assess the young person concerned. It might not be a full re-statementing, but some kind of assessment, to ensure that it was living up to its statutory responsibilities in terms of providing adequate education or training. That would be fundamental. If I were running a host authority, I would certainly want that to happen, and I am sure that the Minister would too.

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

I do not disagree. I thought that the hon. Gentleman was referring to a statutory assessment in the statementing sense. We will certainly develop in our framework guidance something like the more informal assessment to which he refers.

I would like to move Government amendment 351, a technical drafting amendment consequent on amendment 344. I would also like to move Government amendment 352, which relates to the provisions in new clause 17 requiring local education authorities with relevant youth accommodation in their area to use their best endeavours to secure appropriate special educational provision for persons detained in juvenile custody. Specifically, amendment 352 amends section 207 of the Education Act 2002 to enable regulations to be made allowing the host LEA to recoup the cost of making appropriate special educational provision from the  authority in whose area the person belongs. That will help to ensure that the host LEA can meet the special educational need of persons in custody and recover the costs over and above the core education costs in custody.

I would also like to move new clause 19—

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Order. I must interrupt the hon. Lady for a moment. Strictly speaking, she will have the opportunity to move the amendments later, formally. At the moment, she is just speaking to them.

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

I stand corrected, Mr. Chope.

New clause 19 will insert new section 312A into part 4 of the Education Act 1996. It suspends part 4 of the Act while a person is detained in relevant youth accommodation, meaning that an LEA maintaining a statement for a child does not have to continue doing so while the child is in juvenile custody. In effect, it means that the duty will be suspended during that time.

However, proposed new section 312A and the amendment to it also provide that a statement of special educational needs maintained before a child’s detention must be revived and reviewed on their release. We believe that the amendment provides a significant improvement in policy for children with SEN in juvenile custody. Currently, children who have statements of special educational needs on entering custody have their statements stopped, and they are not necessarily picked up again on release.

We believe that it is essential that education and training in custody meet the needs of detained children and young people as far as is practical within the custodial environment, but we are also aware of the need to consider the practicalities of arranging and delivering highly specialised and discrete provision for persons in custody, the majority of whom spend only short periods there.

Photo of John Hayes John Hayes Shadow Minister (Education)

While the hon. Lady is speaking about the determination, and the balance between practicalities and what is desirable, will she say something about the interface with Connexions? It is critical that when a young person is released, there is good transmission of information between other authorities and Connexions so that the young person’s circumstances can be made known and the options available to them explored through the Connexions service. She said nothing about that. Will she enlighten the Committee about her thinking on the subject?

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

That is one of the benefits of our bringing Connexions back under the wing of the local authority. They have all the tools at their disposal to achieve that.

I hope that Committee members will agree that it is not practical for all the duties imposed on local education authorities in the Education Acts to apply to the education and training of persons detained in relevant youth accommodation, but that our new clauses and related amendments provide a robust and practical solution to ensure that the special educational needs of children and young people in juvenile custody can be supported appropriately. We will also issue guidance to which LEAs must have regard when exercising their duties. The guidance will set out our expectations of how LEAs should support the special educational needs of children and young people in juvenile custody.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The question is that clause 49 stand part of the Bill. As many as are of that opinion, say Aye. [Hon. Members: “Aye.”] To the contrary, No. Perhaps we can do that again.

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

On a point of order, Mr. Chope. Has that not now happened, and can we not now move on to clause 50?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Gentleman is technically correct. The question is whether the Chair should make some allowance for the fact that there is obviously a lack of understanding, perhaps, on the Government Benches in relation to the material under discussion. My inclination is to give the Government a second chance, otherwise time might unnecessarily be taken up on the issue on Report when the Committee might have other priorities.

Question put and agreed to.

Clause 49 accordingly ordered to stand part of the Bill.