Clause 8

Children, Schools and Families Bill – in a Public Bill Committee at 12:30 pm on 2nd February 2010.

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Right of appeal against determination by local authority not to amend statement

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

I beg to move amendment 75, in clause 8, page 11, line 12, at end insert

‘and inform the parent of their right to appeal to the Tribunal.’.

Photo of Clive Betts Clive Betts Labour, Sheffield, Attercliffe

With this it will be convenient to discuss the following: amendment 157, in clause 8, page 11, line 13, after ‘parent’, insert

‘or the head teacher of the school which the pupil attends’.

Amendment 233, in clause 8, page 11, line 14, leave out subsection (4) and insert—

‘(4) The school at which the pupil is registered may appeal to the Tribunal.’.

Amendment 165, in clause 8, page 11, line 18, at end insert—

‘(5A) On receipt of an appeal a determination must be made within 8 weeks.’.

Again, it is my opinion that we should be able to consider all aspects of the clause within discussion of the amendments, so I shall not allow a stand part debate.

Photo of Tim Loughton Tim Loughton Shadow Minister (Children)

It is me again, so we shall make rapid progress through this bit of the Bill. I have realised slightly belatedly that amendment 75 is almost utterly redundant, but it gives me the opportunity to probe, as was the intention behind the amendment anyway. I have been racking my brains as to how I can make it slightly less redundant, and I have alighted on the fact that it uses the phrase “their” right, whereas the clause refers to “the” right. I shall talk just about that, if I may. I am sure that the Liberal Democrats’ spokesman will speak to their three amendments. They lay down some more detailed markers, with which I have some sympathy, particularly on the need to speed up determinations, which can drag on too long.

I welcome the clause, as do organisations involved with special educational needs. The whole point of the clause is to deal with the lottery in relation to getting a statement, ensuring that it is appropriate and being able to change it in the future. In most cases, a child’s statement of special educational needs should never remain static. A child’s requirements obviously change as the child develops, yet there will be many children with a statement of special educational needs that was granted at primary age who continue with the same statement, unamended, for many years, even though the child has physically and mentally developed well beyond  the confines of what the original statement was designed to achieve for the child. It is therefore right that we give greater powers to parents who challenge and need to challenge the suitability of a statement that has been attached to their child, because those statements become out of date.

The entire statementing process is highly cumbersome, costly, stressful and adversarial and needs to be overhauled. We have various proposals on how it could be overhauled. Yesterday, 120 SEN experts assembled in Westminster Hall with Sir Bob Balchin, my hon. Friend the Member for Bognor Regis and Littlehampton, myself and others to discuss ways in which the whole statementing process could be improved and a better deal for children with special educational needs and their families achieved. We have a particular interest in this area.

Key to all this must surely be empowering the parents to challenge unsuitable or non-existent special provisions for their children.

We have all, I am sure, had constituents coming to us who are in a war of attrition with a local authority to get the required statement and to make sure that it is adhered to, let alone remains relevant. The problem with the system is that the local authority is effectively the judge, the jury, the appeal judge, the commissioner and the provider of the services. I believe that the system will not materially improve until we split up those responsibilities so that there are people who can make an impartial statement assessing a child’s need in more detail than the current broad-brush approach. Then, with the parents, they could hold that authority to account to make sure that the provisions in the statement are forthcoming.

Too many of our constituents have had their expectations raised that a suitable statement will be made. They wait a long time for it only to see those expectations dashed because they do not get remotely the level of statement that is required for that child. In this clause we could give a power to the parent to try to ensure that the statement remains relevant to the requirements of their child. It is a highly confusing system. This only scratches the surface and the whole system needs to be completely overhauled. It is a false economy not to be getting a better deal for parents early on. The number of appeals to tribunals that are subsequently upheld in favour of the child and his or her family shows that there is an enormous problem with the system. A lot of money is being wasted on contesting appeals that could be better used to provide the services that the children need.

That was my opportunity to make that broader point about how the system is not working at the moment. It is vital that we give greater powers of appeal to the parents, so there needs to be a written notice when an authority has made a determination and, if it is not the right answer for the parents, it must be made absolutely clear to them how they can challenge it. The clause requires the local authority to provide only the absolute minimum of information. It could be a fact sheet about the tribunal system.

The amendment tries to provide a more helping hand to the parent about how the appeal could take place and on what grounds it could be launched. The provision of  a helping hand to parents is pretty arbitrary at the moment, with various outside organisations such as the Independent Panel for Special Education Advice and others playing that advocate role. But that is not available to everybody. Within the local authority there could be rather more dispassionate advice for parents.

Ultimately it is in the interests of the local authority as well as the parents to get the best deal for a child. If that does not happen, the child is failed, the family is failed and greater stress is placed on them. The local authority will be failed too because ultimately many children with special educational needs who do not get appropriate support require higher level, more intense support later on. They may be rather less independent than they might have been if given the right support intensively and early on.

The amendment is probing to ensure that that is not just a token exercise that allows someone to appeal, and that it sets out clearly what an individual parent should do, based on that individual determination, if the statement update has been turned down. There might be some local support they can get to ensure that they put their case in the most appropriate way and can feel rather more confident about navigating an intimidating, highly technical and confusing system that currently works along the line of a war of attrition, I am afraid to say, to knock people out of the system.

Too many local authorities play a game of brinkmanship on the basis that if they put up a resolute opposition the parent might just get completely over-awed and over-stressed and drop out. I have heard of some absolutely disgraceful incidents in which parents have had a prima facie case and absolutely needed a proper statement for their child, or needed a statement amended, and the authority challenged it all the way, only to drop out the day before the appeal was due to take place on the basis that they knew they never had a leg to stand on but hoped that the stress on the parent might get them to drop the case. That is absolutely unacceptable. We need to do more to be on the side of the parents in difficult circumstances to ensure that their rights of appeal are properly understood and that they have every support necessary so that they can make a strong case on behalf of their children.

Photo of Annette Brooke Annette Brooke Shadow Spokesperson (Children, Schools and Families), Shadow Minister (Education) 12:45 pm, 2nd February 2010

The amendment would be an important adjustment to the current situation. Equally, I agree that the statementing process needs a much fuller review. Although I feel, like those who have spoken before me, that Sir Brian Lamb did an excellent job, he was limited with the remit he was given. As I recall, I do not think that his remit went as far as the Children, Schools and Families Committee recommended at the time.

The amendments that my hon. Friend the Member for Yeovil and I have tabled suggest first that the head teacher of the school could be involved in the appeal, and secondly, if a case goes to tribunal, that the school should be involved. We know that many parents of children with special educational needs need support, and we argue that teachers and the school will be very much aware if a statement needs amending. We feel that that could be an important consideration. I do not think that the school will do anything that might be regarded as frivolous, but it is the teachers who deal with the children day in, day out, and who will really understand the needs. I would like the Minister to give those points serious consideration.

Amendment 165 arose from some of the comments made by Mr. John Friel in evidence to the Committee. I would like to read out some of the points he made:

“The drafting of that particular section needs to set a time limit and provide for either the parent or the school to request an amendment to the annual review—if the local authority considers that there will an amendment, it will of course make it anyway. There needs to be some tighter drafting on that particular clause, because at the moment, as it is, there is a great deal of complaints...about refusal to amend statements. The local authorities answer, ‘Well, there’s no time limit.’” ——[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 44, Q57.]

The amendment has perhaps found the most convenient place in the Bill to suggest a time limit, and the Minister might tell me that there is in fact a time limit in which local authorities must respond to an appeal, but I would like to raise the issue of time limits generally in the whole process.

We want to make a change that is significant, but we all know that local authorities lacking resources will drag things out. We need time limits on when the appeal is determined, on when the change is made to the statement and on the implementation period. I would be grateful if the Minister would respond to those points.

Photo of Vernon Coaker Vernon Coaker Minister of State (Department for Children, Schools and Families) (Schools and Learners)

This is another important group of amendments. The clause was widely welcomed by everyone and was introduced in response to Sir Brian Lamb’s recommendations. The hon. Member for East Worthing and Shoreham explained his amendment. The proposals in amendment 75 are already in proposed new subsection (5), which states that a notice to parents informing them of the local authority’s decision not to amend a statement must also inform them of their right of appeal. The notice does need to go a little further, and, as well as their right of appeal, it will tell parents about the Parent Partnership Service, which is available to them and can provide help and advice.

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

Sir Brian Lamb mentioned that pupil-parent partnerships need improving, as I have mentioned on many occasions, because they are either not independent or not seen as independent. Does the Minister plan to follow through on Sir Brian Lamb’s recommendations?

Photo of Vernon Coaker Vernon Coaker Minister of State (Department for Children, Schools and Families) (Schools and Learners)

We will obviously look at all of Sir Brian Lamb’s recommendations to see how we can take them through. The Parent Partnership Service is well thought of generally and we will consider any recommendations that Sir Brian makes.

The hon. Member for East Worthing and Shoreham said that the information given to parents ought to include a little more than just saying that there will be a right of appeal. I agree with him on that and I am trying to reassure him that it will include more. The tribunal also provides advice and guidance to parents, and there is a video available. That is an important step to support parents through the process.

The amendments would add further safeguards into clause 8, which proposes a new right to appeal to the first tier tribunal where a local authority has determined not to amend a statement of SEN following a review. The clause was warmly welcomed and is a direct result of Brian Lamb’s recommendations. I assure hon. Members that the amendments are unnecessary.

On amendment 75, I want to reiterate that subsection (5) already provides notice to parents. Amendment 157 would extend the right to appeal to the tribunal to the head teacher of the school attended by the child. Again, the measure is unnecessary. The Education Act 1996 provides that parents have the right to appeal to the tribunal if they are not happy with the authority’s decision on the review. It is right that parents should be able to challenge the local authority if they consider that their child’s needs are not being met, rather than head teachers of schools where pupils with statements are placed.

The hon. Lady may be concerned that where the head teacher’s report recommends amendments to the statement and they are not made, the head teacher has no right of appeal. A school may feel that the statement does not provide the resources it requires to meet the child’s needs, but a statement is a contract between the local authority and the parents, not the school. We consider that a parent’s right to appeal should not be cut across by giving the right to the head teacher as well. Head teachers’ concerns about the support provided through statements should be addressed in discussion with the local authority. We do not want to introduce a formal procedure into that relationship. A school in such a situation can, in any case, ask for a statutory reassessment of the child’s SEN with a view to amending the statement.

Amendment 233 would delete proposed new subsection (4) and substitute extending the right to appeal to the tribunal to the school at which the pupil is registered as well as to the head teacher, which was the subject of amendment 157. That may be prompted by a concern that the right should be exercised by the governing body, as the legal body in charge of the school. The arguments as to why the extension is unnecessary are similar to those set out in response to amendment 157.

Amendment 165 provides that where the parents have submitted an appeal to the tribunal, the tribunal must make the determination within eight weeks of receipt. However, I believe that the hon. Lady is attempting to introduce an eight-week deadline for a local authority to conduct a review after receiving the head teacher’s report. If that is the case, then the amendment is unnecessary.

We share the hon. Lady’s desire for parents not to be left waiting for a long period following an annual review meeting to receive the authority’s decision on whether a statement can be amended. The annual review cycle already has statutory time limits. Section 324 of the Education Act 1996 requires the review to be completed before the end of a 12-month period.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four o’clock.