Clause 69 - Part does not apply to detained children and young people

Children and Families Bill – in a Public Bill Committee at 12:15 pm on 18 April 2013.

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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 new clause 22—Application of Part 3 to detained children and young people—

‘(1) This section applies to children and young people detained in custody in pursuance of—

(a) an order made by a court, or

(b) an order of recall made by the Secretary of State.

(2) Where a child or young person under the age of 18 to whom subsection (1) applies has an EHC plan immediately prior to commencing his or her custodial sentence, the local authority responsible for that child or young person must determine which elements of provision described in the said plan may be delivered during that sentence.

(3) Where a child or young person under the age of 18 to whom subsection (1) applies has an EHC plan immediately prior to commencing his or her custodial sentence—

(a) if that sentence is greater than 13 weeks in minimum length, the responsible local authority may cease the plan;

(b) if the sentence is not more than 13 weeks in minimum length, the responsible local authority may consider whether it would be advantageous to continue to deliver any parts of the child or young person’s EHC plan during his or her detention.

(4) In the course of their considerations under subsections (2) and (3), the responsible local authority must consult—

(a) the child or young person concerned, and their family;

(b) the institution in which the child or young person will be detained;

(c) any organisations delivering education or training within or on behalf of the institution in which the child or young person will be detained, and;

(d) any professionals or agencies other than the local authority which currently provide services under the terms of the child or young person’s EHC plan.

(5) In the course of their considerations under subsections (2) and (3), the responsible local authority must have regard to—

(a) the nature of the crime for which the child or young person has been detained;

(b) the age of the child or young person;

(c) the previous educational outcomes of the child or young person;

(d) the views of those consulted by virtue of subsection (4), and;

(e) the level and appropriateness of education or training delivered within or on behalf of the institution in which the child or young person will be detained.’.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Education)

As this debate is the last to which I intend to contribute on this part of the Bill, I wish to take the opportunity to thank the Minister for the collegiate and helpful way in which he has handled our many important discussions on it. There have been a lot of them, and they might have taken longer than some members of the Committee would have liked, but our debates have been extremely worth while and of huge importance. This legislation is vital; it is a once-in-a-generation opportunity that will affect millions of children in the years to come, and it is imperative that we get it right.

While I—and, dare I say, other members of the Committee on both sides—have been disappointed that some of our key amendments have not been accepted, we certainly appreciate and recognise the lengths that the Minister has gone to in agreeing concessions when he has been able to do so and in providing us with assurances when he has not. I pay tribute to him for his endeavours on behalf of all the children and young people with special educational needs, and in the hope that he will look favourably on the arguments that the hon. Member for South Swindon and I will make in respect of the new clause.

I appreciate that there is not a simple solution to the matter, and that there is a degree of crossover between the Minister’s remit and that of his colleagues in the Ministry of Justice. However, we now have the opportunity to rationalise a failing system. That there are so many young people in our young offenders institutes and adult prisons is largely due to the failure of our education system to give them a better, or at least different, start in life.

If someone asks five-year-olds about their ambitions in life and what they want to be when they grow up, they are likely to give answers such as footballer, hairdresser, vet, doctor, nurse and even astronaut. I know that to be true, because I have done it and I have got it on DVD. I am happy to show it to anyone in the Committee who would like to see it. I have never heard a five-year-old say that they want to be a petty criminal or someone who steals to fund an addiction or someone who gets drunk, fights and vandalises property. I have certainly never heard them say they want to become a serious criminal.

However, during the school years, ambitions can fall by the wayside if a learning difficulty or other developmental delay or issue, such as communication problems, holds a young person back. That is especially true if that difficulty is not picked up and support is not put in place. Even where it is picked up and a statement is put  in place, that might not be enough to prevent a young person from turning to crime and ending up in our criminal justice system.

We know that that is a problem, because young people who had a statement are over-represented in the youth justice system. Some 18% of young offenders have had a statement, compared with 2% to 3% of the general population. In addition, a host of other statistics show just how many young people arrive in the youth justice system with undiagnosed learning and/or communication difficulties. Lord Ramsbotham is the expert on this, but I believe that about 80% of those in young offenders institutions have literacy problems or dyslexia to some degree, and that more than 70% are thought to have speech, language and communication needs.

I do not think that anyone would argue that those young people guilty of crimes—particularly, serious ones—should not face the full consequences of their actions, even if we can trace their problems back to SEN. However, whether or not we continue support for them while they serve a custodial sentence, if we know they have special educational needs, speaks of what we want from our youth justice system. Do we want the sentence just to punish and deter, or do we want it to rehabilitate and reduce reoffending? The answer is probably a balance of those functions, but the balance has to be tipped firmly towards the latter.

When nearly three quarters of young people released from custody reoffend within one year, what has the system achieved? The Ministry of Justice is looking at how best to focus on education to reduce reoffending, which I welcome, but the clause will close one important avenue that we might want to explore. If we accept the clause, children who have an EHC plan will not be entitled to the specific educational support set out in their plan while in custody, and children who have unidentified SENs will not be eligible for an EHC assessment while in custody. That seems completely nonsensical, if the Government are serious about reducing reoffending through education. It is also overly prescriptive, as it holds back innovative local authorities from contributing to reducing reoffending in their communities by staying involved in the education of a child or young person while they are in custody. We therefore do not support the clause.

I try to be helpful to the Minister, and in that spirit we have proposed a possible solution. New clause 22 would replace the blanket ban on local authorities maintaining certain elements of special educational provision for a young person in custody with a more nuanced process that would empower councils to make decisions in the best interests of that young person and, ultimately, the community they live in. The new clause would allow consideration to be given to their age, the length of their sentence and the provision that may be made available while they are in a certain institution. It would not force a local authority to continue provision for a young person who was locked up for a long time; it would simply give them the option to do so, for example where a child is in custody for a few weeks for a less serious crime. We could then have continuity.

I have had a universally positive response to new clause 22 from campaign groups and organisations. Also, the Minister will remember that the weight of  opinion that we heard from the experts in the evidence sessions opposed the clause as currently drafted. No one is arguing that it will be viable to continue all aspects of provision for all young people who find themselves in custody, but there must be a happy medium between that and the Government’s position shown in clause 69.

That happy medium may, for instance, involve the use of virtual academies to provide continuity for qualifications and provision in circumstances where a young person may be moved between institutions, into halfway houses or back home afterwards, but perhaps even then is not able to return to mainstream school. I met recently with the people behind the Nasai Virtual Academy and was very impressed to hear about the real successes that they had had with young people in such situations, and the qualifications that they had helped them to go on to achieve. I would recommend that the Minister meet them, if he has not already, to discuss the work that they could do and how it could help.

I hope the Minister agrees that clause 69 represents a serious weakness in the Bill as currently drafted, and if he will not accept my new clause at this stage, I will be looking for concrete assurances that he and his officials will take clause 69 away and amend it before the Lords stages.

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I rise briefly to speak to clause 69, which, as my hon. Friend the Minister knows, causes me dismay. I understand that it is there by necessity, but it is not there because of a lack of will on the part of his Department—I know that, too. I understand that the challenge of ensuring that the Ministry of Justice is fully working in tandem with his Department is not insignificant. I look to my hon. Friend to do everything in his power to work closely with the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright), to ensure that by the time the Bill reaches its further stages, clause 69 has either gone or been amended in a meaningful way.

I commend the hon. Member for Washington and Sunderland West for trying, through new clause 22, to alleviate the situation. I can see that her new clause deals with children and young people who already have an EHC plan, but there is another, wider issue. I speak from my professional experience, having represented many young people in the criminal justice system. Very often, they get into that system without any diagnosis whatever. There they are, at the age of 16, 17 or 18, and suddenly we find out that they are autistic—they are on the spectrum—or have other diagnosed disorders. Clear clinical evidence is obtained as a result either of their incarceration or because of an expert report that has been commissioned to assist in the sentencing process.

It is deeply depressing to find that time and time again young people are in that position. With the best will in the world, new clause 22 does not deal with that situation, which is one that we must address if we are to get the legislation absolutely right. There are limitations in what is on the table today, whatever side of the House we occupy. However, I want to adopt a lot of the hon. Lady’s comments. In particular, I was very pleased to hear her cite Lord Ramsbotham, with whom I serve on the all-party group on speech and language difficulties. I adopt the statistics that she mentioned.

Let us move on from the wherefore and deal as briefly as possible with the why. As I have said, in many cases there is a failure to diagnose at a proper stage. That failure means that the already overburdened criminal justice system is finding it difficult to cope. I know that the Government are excluding children and young people in custody from these reforms because the provision outlined in the EHC plan is specific to the child or young person’s local authority and school, and the average youth custody sentence of 79 days gives insufficient time in which to conduct the 28-week EHC assessment. I accept that they are obstacles, but they are not insurmountable. For those children who already have EHC plans, there are elements that can and should be continued in custody, which is the thrust of new clause 22. As I have already said, there is no reason why an EHC assessment could not be initiated while the young person is in custody, as long as we have the involvement of their home local authority and school. The process could then continue into the community. In other words, there should be—I have used the word a lot—a “synthesis.” It begins in custody, but it is not determined by what I accept are the average short sentences that can make that synthesis difficult.

The Government have already sought to improve the current situation, and I pay tribute to the Minister for making changes since the pre-legislative scrutiny. They include requiring local authorities to consult with their local youth offending team about whether local SEN provision is sufficient, which is in clause 27, and requiring local authorities to review a child’s EHC plan after custody, which is in clause 47. I absolutely welcome those changes, which are a step in the right direction, but they are still not enough. Put together with clause 69, they appear mutually contradictory, which is a real concern.

I have been listening carefully to the Minister, and I hope that he can give me some real reassurance and an indication today that he is working as hard as he can to ensure that we do not fail that small but significant cohort of young people currently in the criminal justice system, whose needs either are not being met or have never been met. It is nothing short of a scandal and it is something that he will want to do something about.

Photo of Edward Timpson Edward Timpson The Parliamentary Under-Secretary of State for Education 12:30, 18 April 2013

Before discussing clause 69 and new clause 22, I will begin by echoing the kind remarks of the hon. Member for Washington and Sunderland West. Her passion and knowledge of the subject are, in many respects, extremely infectious, so I appreciate her thoughtful, considered and well-informed contributions.

Clause 69 replicates the provision already set out in section 312A of the Education Act 1996 and the issues at stake are practical. The SEN reforms are designed to support and safeguard pupils who are essentially in wider society and within steady state provision. Detained young people are frequently in custody for short periods —an average of 78 days—and they can move between institutions even during that time. It would therefore be impractical to place duties on local authorities that are impossible for them to deliver.

I will provide some specific examples. Where young people in custody have EHC plans, those plans will name specific provision and support provided by local  services and in local schools and colleges. For obvious reasons, children are rarely detained in their home local authority, so little of their existing plan will be directly transferable to the secure estate. Some elements of SEN provision simply cannot apply in custody, such as being able to select a preferred school or college or personal budget.

However, I reassure my hon. Friend the Member for South Swindon that the Government are committed to supporting young offenders, including those with special educational needs, to turn their lives around through education. I hope that this debate and the findings of the Ministry of Justice’s consultation on young offenders will provide valuable lessons that we can draw from to try to improve the education in our secure youth estate.

I am sympathetic to what my hon. Friend and the hon. Member for Washington and Sunderland West are trying to achieve through the new clause. The hon. Lady mentioned ensuring that we get the balance right between punishing those who find themselves in custody and using custody as an opportunity to rehabilitate them back into the community when they have served that time, so that that time in custody is not wasted. Education is a key component of that, giving them the building blocks to make a success of their future outside prison. As I said earlier, the Government are committed to helping young offenders turn their lives around, not just after they leave but while they are in prison. There is, of course, always more that we can do to improve that.

Provisions already exist that are arguably stronger than those set out in the proposed new clause, as they apply regardless of the crime the young person has committed or the amount of time that they are in custody. Section 562C of the Education Act 1996 already places duties on host local authorities to use their best endeavours to secure the provisions set in a statement of special educational needs for detained children and young people under 18, and in future an education, health and care plan for detained children and young people aged under 18.

Where it is not possible or appropriate to secure the exact provision set out in the plan, for some of the reasons I have already given, the host local authority has a duty to secure the special educational provision that corresponds as closely as practicable to that set out in the EHC plan.

There may also be cases where a plan was due to be reviewed before the young person was detained, and the provision in the EHC plan is no longer appropriate. In those cases, the local authority must secure special educational provision appropriate for the child or young person. Host local authorities must work closely with the young person’s home local authority to ensure that appropriate support is in place. There are already information-sharing powers and duties in place to allow for that in the indicative code of practice, to include sections on how we expect local authorities to support that group of young people.

The code will also set out how local authorities should work with each other, young people, professionals, youth offending and probation teams, as they fulfil their duties. There is not normally enough time for a full education, health and care plan assessment and for the provision to be put in place while a young person is in custody. However, I would like to assure the hon. Member  for Washington and Sunderland West and my hon. Friend the Member for South Swindon that assessments do take place in custody. Education providers in young offenders institutions are required to have a work force trained to identify and support a young person’s individual learning needs, and procedures to identify and support any learning difficulties that a young person may have.

All young people who show signs of having a learning difficulty or disability are screened on entering custody. If they are identified as having a special educational need, a full diagnostic assessment should take place and the outcomes of that assessment be used to inform the young person’s learning plan.

Health assessments also take place in custody. The comprehensive health assessment has been developed to improve those assessments. It is an evidence-based tool that assesses for physical and mental health issues and neurological disorders.

Be that as it may, I share hon. Members’ concerns and, like them, I want to improve outcomes for young people with special educational needs in custody. I agree that we can always do more. The hon. Member for Washington and Sunderland West and my hon. Friend have already noted that the Ministry of Justice is currently consulting on the secure youth estate. The Green Paper, “Transforming Youth Custody: Putting education at the heart of detention”, importantly includes a question on how we can use education, health and care plans to support young people in custody. It is right to invite views on how best to meet the needs of young people in custody, including those with a special educational need.

I take up the challenge from my hon. Friend to continue to work closely with the Secretary of State for Justice as he takes his important work forward, as well as the Minister responsible for prisons and rehabilitation, the Under-Secretary of State for Justice, my hon. Friend the hon. Member for Kenilworth and Southam, to see what more we can do to support young people in custody with SEN. I believe I have a meeting scheduled in the next few weeks with that Minister for the purpose of doing exactly that. I know that he is also very committed to trying to improve education, not just in the secure youth estate generally but specifically for children and young people with special educational needs.

I hope that reassures hon. Members that, given the current duties of local authorities and the proposals for reform likely to follow from the Green Paper, new clause 22 is not necessary at this juncture. By virtue of the Green Paper, I want to continue to explore what more we can do to improve the education of young people with SEN in custody. With that assurance, and the ongoing commitment that I have given, I urge hon. Members to withdraw the proposed new clause and support clause 69.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Education)

I have listened carefully to the Minister, but we cannot accept the clause as it stands. He mentioned that there are various complexities in an education, health and care plan such that it would not work when a child is incarcerated in the youth justice system—or, given that we are talking about children and young people aged from nought to 25, in an adult prison—and  gave the example of naming an education institution. That is why I mentioned the Nisai Virtual Academy: if that was named, a child could still use it while incarcerated as it is virtual. I hope that he will look at that option; perhaps he could meet people from the academy to find out whether it could be added to the pot of solutions to help with the redrafting of the clause, should he feel that necessary.

Notwithstanding the assurances that the Minister has given, I wish to divide the Committee on this matter. I do so in the hope that he will go away and look at the issue again, to see if a compromise can be reached, using new and innovative providers such as the Nisai Virtual Academy, to ensure that those young people can carry on their education while incarcerated, especially if that is only for a short time. As he acknowledged, that time inside could be the first time that anybody has ever taken seriously the fact that a child might have an unidentified special educational need; continuing a child’s education would allow any such needs to start to be met. I hope that the Minister understands why I feel the need to divide on the matter, and that he will look at it again as the Bill continues its progress through the House.

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

The Committee divided: Ayes 9, Noes 7.

Division number 4 Decision Time — Clause 69 - Part does not apply to detained children and young people

Aye: 9 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.

Clause 69 ordered to stand part of the Bill.