Section 5C — Additional support needs etc: specified children and young people

Education (Additional Support for Learning) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:46 pm on 20 May 2009.

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Photo of Alex Fergusson Alex Fergusson None 2:46, 20 May 2009

Amendment 1, in the name of the minister, is grouped with amendments 2, 3, 3A, 3B and 17.

Photo of Adam Ingram Adam Ingram Scottish National Party

The bill, as amended at stage 2, requires authorities to treat all children and young people who fall into a number of specified categories as having additional support needs, regardless of whether they need additional support in order to benefit from school education. Many authorities and stakeholders, such as Children in Scotland, share the opinion that the provision will categorise children as having additional support needs when they do not, in fact, require additional support.

That said, I acknowledge that looked-after children and young people are a unique group—a group that does not fare as well educationally as others do. However, the bill omits the group of looked-after children who have the lowest educational attainment: those who are looked after at home. Our amendments in the group will rectify the situation.

The Scottish Government accepts and shares the concern of the Education, Lifelong Learning and Culture Committee on the position of the groups of children who are identified under section 5C of the bill. I thank Margaret Smith and the Liberal Democrats for their helpful suggestion that we create a working group to consider how the 2004 act is working for those groups of children and young people. I am more than happy to take on board Ms Smith's suggestion and to establish such a group urgently to examine how the act is affecting the groups of children that are specified in section 5C. The working group will report in due course, and we will act on its recommendations. I therefore urge Parliament to support amendment 2, which will delete all the other categories of children that are contained in section 5C, and amendment 1, which will extend the provisions of the bill to encompass all looked-after children.

Amendment 3 makes it clear that, where a child or young person does not require additional support in order to benefit from education, the bill's presumption that they do have additional support needs will be rebutted. I assure Margaret Smith in particular that amendment 3 will not delete the deeming provision. Education authorities will still have to start from the assumption that such children have additional support needs, and they will still have to assess each child individually. The amendment will, however, remove the potential absurdity of authorities being under a duty to deliver additional support to children and young people who do not have additional support needs.

I understand the rationale behind amendments 3A and 3B and note that they relate only to looked-after children. I trust that that is the case because the Liberal Democrats are supportive of amendments 1 and 2 in my name, which would remove the other specified categories of children who are deemed to have additional support needs. I welcome that support.

I regret that I am unable to support amendment 17, because it is confusing and legislatively unnecessary. The amendment picks out only one reference to children with additional support needs in the whole 2004 act. Its effect would be that other references to

"children and young people having additional support needs" in the 2004 act would not include those who are deemed to have additional support needs. Without a similar provision for every other such reference in the bill, practitioners would be left to assume that those other references did not include children who are deemed to have additional support needs. Clearly, that is not the intention of the amendment.

I ask Parliament to support amendments 1, 2 and 3, offer my support to amendments 3A and 3B, in the name of Margaret Smith, and ask Margaret Smith not to move amendment 17.

I move amendment 1.

Photo of Margaret Smith Margaret Smith Liberal Democrat

The group contains a number of important amendments. Amendments 1, 3A, 3B and 17 relate to looked-after and accommodated children. Members will be aware that I argued successfully at stage 2 that accommodated children should be deemed to have ASN. After our evidence taking and from our work as MSPs, all of us are aware of the particular challenges that looked-after children face. Time and again, they are let down by the system and by those of us who are meant to be responsible for them.

The needs of looked-after children were highlighted in a number of submissions, including those from the Govan Law Centre and the president of the Additional Support Needs Tribunals for Scotland. Often they have been let down by their parents. Some will say that it is—because of the getting it right for every child policy and the inclusive nature of the 2004 act—wrong to pick out and give prominence to any one group of children, but I believe that looked-after children and young people are a different and unique group. Such children have no parents, or their parents are unable or unwilling to care for them. They find themselves with another parent—the local authority, which is often the gatekeeper to services. I want to ensure that no local authority is tempted to short-change any looked-after child and that no council official is tempted, because of departmental circumstances, not to ask for an assessment or a co-ordinated support plan for such children.

My stage 2 amendment covered, for the reasons that I have outlined, looked-after and accommodated children who live away from their parents, to allow them by virtue of their status to be treated as children with additional support needs. Amendment 1, in the name of the minister, includes looked-after children who remain at home. Rightly, the minister said that the evidence shows that those children tend to have the worst educational attainment. I am therefore happy to accept the extension of the provision to include all looked-after and accommodated children.

The minister's amendment 3 deals with the possibility that some looked-after children will not require any additional support. If we do not amend amendment 3, however, it could create a loophole whereby councils could make decisions without proper assessment or investigation of the individual child.

It was always my intention that there should be assessment of needs, and that councils should retain discretion over the additional support that is delivered following assessment. In response to ministerial concerns, I was pleased to lodge amendments 3A and 3B, which I believe to be reasonable amendments that would make the situation clear.

Amendment 2, in the name of the minister, is crucial. It is fair to say that Ken Macintosh's stage 2 amendment, which added lines to the bill in this regard, reflected real concerns about the implementation of the 2004 act. Those concerns were shared by us all on the Education, Lifelong Learning and Culture Committee, by parents and by many of the organisations that gave us written and oral evidence. Judging from the evidence that we heard, thousands of children and young people whom we would expect to have co-ordinated support plans do not have them. Her Majesty's Inspectorate of Education identified particularly looked-after children, carers and young people with mental disorders as missing out in that regard. The National Deaf Children's Society identified deaf, partially deaf, blind and partially sighted children as being similarly overlooked.

There are two strong arguments before us: they are arguments between the philosophical and the pragmatic. On one hand is the principled position of universality and the inherent dangers of setting up a hierarchy. Supporters of that position will point to what they say is the visionary aspect of the 2004 act, and they will highlight the point of that act as being to extend new rights to all children with additional needs. There is a real strength to that argument.

On the other hand, it is clear—five years on from the 2004 act—that there are particular problems with its implementation. There is widespread variation in how the act has been put into practice and I am sure that all of us in the chamber are aware of those problems.

At stage 2, the minister provided details about a range of work that was being undertaken with the groups of children and young people who are covered in section 5C, lines 7 to 14, of the bill as amended at stage 2—namely: young carers, those with mental disorders, children who are deaf, who are blind and so on. That is laudable, but I do not believe that it goes far enough, which is why I have called on the minister to go further and to set up a working group to consider, particularly and specifically, how the needs of those children and young people whose cases have been raised before us are being dealt with. I hope that the group's work will lead to real improvements for many of our most vulnerable children. I am pleased that the minister feels able to accept that request on our behalf and I welcome the assurances that he has given about setting up a working party specifically to consider the groups that have been identified.

The 2004 act has clearly failed to deliver for many children, so we owe it to them to address that now. The minister said that amendments in this respect are contrary to the inspirational backdrop of the 2004 act but, for the past five years, many local authorities have acted in a way that is totally and utterly counter to the inspirational backdrop that we all supported.

Photo of Margo MacDonald Margo MacDonald Independent

Could the member explain why local authorities have taken that action? Is it purely financial, or is there another reason?

Photo of Margaret Smith Margaret Smith Liberal Democrat

Most of the evidence that the committee took suggested that financial imperatives play a large part in many decisions. Five years on from the passage of the 2004 act, we are about 11,000 young people adrift from the number of co-ordinated support plans that we would expect to be in place, and many other effects of the act have not happened as expected.

There comes a point at which Parliament must underline the circumstances in which we think action needs to be taken. As I said previously, this is a struggle between the philosophical and the pragmatic. By instinct, I am a pragmatist. I have sought and received assurances from the minister that a fresh look at the matter will be taken through the setting up of a working party on the particular groups that I have mentioned. That allows me to accept the minister's amendment 2.

I accept that amendment 17 might lead to confusion, so I will be happy not to move it.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I ask members to vote against the minister's amendment 2. At stage 2, the Education, Lifelong Learning and Culture Committee was able to agree on a range of measures, establishing the rights of looked-after and accommodated children, young carers, children with mental disorders and children with sensory impairments to an assessment of their needs—just an assessment.

I should say in passing that it is—to put it mildly—frustrating to have amendments that were agreed in committee being removed by massed whipped votes in the chamber at stage 3.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

I seem to have hit a raw nerve—[ Interruption. ]

Photo of Kenneth Macintosh Kenneth Macintosh Labour

Absolutely.

The minister suggested that by identifying a vulnerable group of youngsters we will somehow undermine the principle of the 2004 act, but he went on to agree that accommodated children require to be so identified. Indeed, he went further and proposed that we add to the list children who are looked after at home. The minister has undermined his whole argument. It is difficult not to conclude that his calculations have less to do with principle than with the fact that the Conservatives, Lib Dems and Labour all voted for the inclusion of those groups at stage 2—

Photo of Kenneth Macintosh Kenneth Macintosh Labour

Shame on the Government for trying to remove groups from the list.

As I argued at stage 2, I accept that in an ideal world we would not have such a list. That was our approach in the 2004 act. However, five years later, we are trying to amend the 2004 act with the benefit of experience, and experience tells us that looked-after and accommodated children, young carers and children with mental disorders are not benefiting from the legislation as fully as they might.

Photo of Margo MacDonald Margo MacDonald Independent

I have an open mind on the matter and came to the debate to learn about it, so I hope that members will indulge me. If local authorities have been excluding the groups of children and young people that Ken Macintosh mentioned, why does he think that those groups' inclusion in the bill will make local authorities more likely to include them in the future?

Photo of Kenneth Macintosh Kenneth Macintosh Labour

That is because local authorities will be under a statutory obligation to do so—they will have to assess the needs of those groups. Currently, many children are not even being assessed. It is not that they do not get a CSP; they are not even assessed.

I refer Margo MacDonald to the helpful briefing from Govan Law Centre, the National Deaf Children's Society, the Scottish Association for Mental Health, the Royal National Institute for the Blind Scotland and others, which highlights the evidence. For example, in 2007 HMIE reported that only

"A few education authorities were beginning to address mental health issues in children ... A few authorities had also recognised the need to look at the effectiveness of provision for young carers and the provision of local young carer support. However, this process was at an early stage of development."

I do not want to repeat evidence from the National Deaf Children's Society that I have quoted at length, on the underachievement of deaf children and children who have sensory impairments. I will at least refer members to the evidence in the report that was published this week by the University of Edinburgh, which found that no form of support plan is in place for 26 per cent—more than a quarter—of identified severely to profoundly deaf pupils.

Photo of Christina McKelvie Christina McKelvie Scottish National Party

Will Ken Macintosh tell us what will happen to kids who are not on the list, such as kids who are suffering from grief or family breakdown?

Photo of Kenneth Macintosh Kenneth Macintosh Labour

As Christina McKelvie knows, the bill reaffirms the right of every child to have an assessment. We identified a range of particularly vulnerable groups. It is absolutely wrong to assert, as Ms McKelvie seemed to do, that by highlighting the needs of some children we are somehow demoting others. If that is the case, why is the minister highlighting the needs of looked-after and accommodated children? How can he pick out the needs of looked-after and accommodated children and ignore the needs of young carers and children who have mental disorders, even though the Government's inspectorate found that such children have particular needs, which should be identified?

It is simply absurd to argue, as the minister tried to do, that we are forcing local authorities to provide support to children who do not need it. The suggestion that that will happen as a result of the bill is laughable.

I look forward to hearing more from the minister about the working group that Margaret Smith mentioned. I am sure that all members will welcome the group. The bill will not be the last word on the implementation of the legislation.

A parent said, "A vote for amendment 2 is a vote for the status quo." I urge all members to reject amendment 2 and to support the other amendments in the group.

Photo of Elizabeth Smith Elizabeth Smith Conservative

As was the case with the 2004 act, the ethos of the bill is to provide adequate and relevant support to children with additional support needs. It is not the intention to provide that support where no such need exists or to introduce legislation the consequence of which would be to leave out certain categories of children who have additional support needs but whose disability is not covered by a specific legislative definition.

Since stage 2, various legal issues have arisen in that connection. Amendment 2 addresses those issues and the possibility of unintended discrimination, and seeks to preserve one of the fundamental principles of the 2004 act, which is why the Scottish Conservatives will support it.

Photo of Adam Ingram Adam Ingram Scottish National Party

I will clarify some points. The stage 2 amendment arrived in the bill although there was no majority on the committee; rather, it was approved by the convener's casting vote. In those circumstances, I am perfectly entitled to bring the issue back to Parliament.

I will summarise the effect of the amendments in the group. They will have the combined effect of deeming all looked-after children to have additional support needs, but will relieve education authorities of the requirement to meet needs that do not exist, the fact of their existence having been established only after appropriate assessment. It is important to recognise that looked-after children are in a unique position because it is perceived that local authorities have a conflict of interests as corporate parents on the one hand and as providers of services on the other. That defines the uniqueness of looked-after children and why they deserve to be covered in the bill.

Photo of Kenneth Macintosh Kenneth Macintosh Labour

Why will the minister not, therefore, address the needs of young carers, who often look after their own parents?

Photo of Adam Ingram Adam Ingram Scottish National Party

I have already indicated that we will address the needs of young carers in the working group that I have agreed with Margaret Smith to set up. Young carers are already covered by the 2004 act, as are all other groups of children who have additional support needs.

Amendment 2 will remove the additional categories of children that Mr Macintosh placed in the bill at stage 2. We do not want to establish a hierarchy of needs, in which some groups of children with additional support needs are prioritised over others, which is what will happen if local authorities have statutory obligations in respect of specific groups of children. That would undermine the inclusive ethos of the 2004 act.

Photo of Robert Brown Robert Brown Liberal Democrat

Does the minister accept that the committee received substantial evidence of recalcitrance—I cannot describe it any less strongly—in some local authorities on that point? The issue is enforcement rather than legislative change. Will he undertake to deal with enforcement against those councils and improvement of the service as central issues for the working group that is to be set up?

Photo of Adam Ingram Adam Ingram Scottish National Party

I certainly undertake to do that. After the bill is passed—as, I hope, it will be—we will return to the code of practice and guidance to local authorities on implementing the bill's provisions. We can, in those, certainly address the issues that Robert Brown has raised and we can cover them in the working group that I have undertaken to set up.

Amendment 1 agreed to.

Amendment 2 moved—[Adam Ingram].

Photo of Alex Fergusson Alex Fergusson None

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Adam, Brian, Aitken, Bill, Allan, Alasdair, Brocklebank, Ted, Brown, Gavin, Brown, Keith, Brown, Robert, Brownlee, Derek, Campbell, Aileen, Carlaw, Jackson, Coffey, Willie, Constance, Angela, Crawford, Bruce, Cunningham, Roseanna, Don, Nigel, Doris, Bob, Ewing, Fergus, Fabiani, Linda, Finnie, Ross, FitzPatrick, Joe, Fraser, Murdo, Gibson, Kenneth, Gibson, Rob, Goldie, Annabel, Grahame, Christine, Harper, Robin, Harvie, Christopher, Hepburn, Jamie, Hume, Jim, Hyslop, Fiona, Ingram, Adam, Johnstone, Alex, Kidd, Bill, Lamont, John, Lochhead, Richard, MacAskill, Kenny, MacDonald, Margo, Marwick, Tricia, Mather, Jim, Matheson, Michael, Maxwell, Stewart, McArthur, Liam, McGrigor, Jamie, McInnes, Alison, McKee, Ian, McKelvie, Christina, McLaughlin, Anne, McLetchie, David, McMillan, Stuart, Milne, Nanette, Mitchell, Margaret, Morgan, Alasdair, Neil, Alex, O'Donnell, Hugh, Paterson, Gil, Pringle, Mike, Purvis, Jeremy, Robison, Shona, Rumbles, Mike, Russell, Michael, Salmond, Alex, Scanlon, Mary, Scott, John, Smith, Elizabeth, Smith, Iain, Smith, Margaret, Somerville, Shirley-Anne, Stephen, Nicol, Stevenson, Stewart, Stone, Jamie, Sturgeon, Nicola, Swinney, John, Thompson, Dave, Tolson, Jim, Watt, Maureen, Welsh, Andrew, White, Sandra, Wilson, Bill, Wilson, John
Against: Alexander, Ms Wendy, Baillie, Jackie, Baker, Claire, Baker, Richard, Boyack, Sarah, Brankin, Rhona, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Margaret, Eadie, Helen, Ferguson, Patricia, Foulkes, George, Gillon, Karen, Glen, Marlyn, Gordon, Charlie, Grant, Rhoda, Gray, Iain, Henry, Hugh, Jamieson, Cathy, Kelly, James, Kerr, Andy, Lamont, Johann, Livingstone, Marilyn, Macdonald, Lewis, Macintosh, Ken, Martin, Paul, McAveety, Mr Frank, McCabe, Tom, McMahon, Michael, McNeil, Duncan, McNeill, Pauline, Mulligan, Mary, Murray, Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Simpson, Dr Richard, Smith, Elaine, Stewart, David, Whitefield, Karen, Whitton, David

Photo of Alex Fergusson Alex Fergusson None

The result of the division is: For 79, Against 42, Abstentions 0.

Amendment 2 agreed to.

Amendment 3 moved—[Adam Ingram].

Amendments 3A and 3B moved—[Margaret Smith]—and agreed to.

Amendment 3, as amended, agreed to.

Amendment 17 not moved.