Children and Families Bill

Public Bill Committee, 16 April 2013.

Clause 36 - Assessment of education, health and care needs

Robert Buckland (Conservative, South Swindon)

I beg to move amendment 43, in clause 36, page 28, line 28, after ‘assessments’, insert

‘including—

(i) triggering assessments under section 17 of the Children Act; and

(ii) healthcare assessments.’.

It is a pleasure to serve once again under your chairmanship, Mr Chope, after our recess.

The amendment relates to whether an assessment for an education, health and care—EHC—plan could trigger a further assessment for social care and health care services. It is germane to one of the general themes of the Committee’s debate: the synthesis between education, health and social care.

My amendment has two parts. Proposed new sub-paragraph (i) is designed to explore whether a statutory EHC assessment could trigger an assessment for social care under the Children Act 1989. Proposed new sub-paragraph (ii) is designed to explore how health care assessments will form part of the EHC assessment process, which is particularly significant given the new and welcome duty on health services to make provision as set out in the new EHC plans.

Dealing first with social care, the amendment would mean that a consideration of whether a child needed social care services pursuant to section 17 of the 1989 Act would become a requirement of the EHC assessment. It seems eminently sensible that a local authority should look at all the support a family needs, for example short break services—the sort of respite care that often makes a huge difference to a family under pressure—at the same time as EHC assessments are undertaken. The amendment would ensure that consideration of all the social care needs of the child and their family took place at the same time as consideration of their educational needs. The needs of the child do not stop at the school gate; they continue throughout the weekend, 24/7, for the family. Ensuring that we have a complete picture in terms of assessment therefore makes eminent sense.

There are other benefits to linking section 17 assessments with EHC assessments. Parents, sadly, are often not aware of their child’s rights to social care and do not receive an assessment until a crisis point is reached, with all the concomitant trauma and expense that results from leaving things until the 11th hour—or sometimes beyond it. In 2012, Ofsted’s review of social services for disabled children found

“weaknesses in plans for, and reviews of, children in need. For families where there are concerns, these weaknesses in the systems make it less likely that issues will be identified in a timely way and followed up rigorously.”

The amendment would help to trigger that early assessment of need and help services to take a whole-family approach to meeting the needs of disabled children, which is lacking at the moment.

Accepting the principle that EHC assessments should include a consideration of needs under section 17 of the 1989 Act would be a significant step in creating the single assessment process that the Government rightly seek. I hope that the Minster will carefully consider that point and lend it support.

The second part of the amendment relates to health services, and I hope that this debate will give the Minister the opportunity to go into slightly more detail about how health services will be involved in EHC assessments. Placing a new duty on health commissioners to arrange the provision set out in an EHC plan would be a vital step. It is vital that we understand how health services will be involved in the assessments and the drawing up of EHC plans. If the health services are not fully involved, there will simply be nothing to write about in the health parts of the plans.

Will the Minister help the Committee on the following points? First, will regulations require health services to take part in the assessment process, and who will be required to take part? Secondly, who will be involved in drawing up EHC plans from a health services point of view? Finally, who will decide what health elements are actually recorded in the plan and how parents can challenge decisions? I look forward to my hon. Friend’s comments, and I commend the amendment to the Committee.

Sharon Hodgson (Labour, Washington and Sunderland West)

It is a pleasure to be back after our lovely Easter recess and to see you in the Chair again, Mr Chope.

I will not detain the Committee long, as I do not have much to add to what the hon. Member for South Swindon said, other than to commend him on his repeated attempts to save local authorities money by bringing together health and social care needs assessments. It is clear that the Minister is not for turning on this issue, so I again offer the hon. Member for South Swindon our support if he wishes to test the will of the Committee.

Edward Timpson (Conservative, Crewe and Nantwich)

It is a pleasure for me, too, to see you in the Chair after our Easter break, Mr Chope.

I thank my hon. Friend the Member for South Swindon for his amendment. He is right to try to ensure that, under an EHC assessment, all aspects of the child’s or young person’s needs are promptly and appropriately assessed and that the consideration of those needs is family-facing. As he acknowledges, the purpose of the EHC needs assessment is to identify in an holistic way not only the special educational provision required by the child or young person, but any health care and social care provision reasonably required by the learning difficulties and disabilities that result in him or her having special educational needs. My hon. Friend is also aware that we have set out in indicative regulations more detail about how agencies should work together. I will come to his questions about health in a moment.

Clause 28(3) is designed to ensure that officials responsible for education and training in a local authority work closely and co-operate with their colleagues responsible for social services. As indicative regulation 6 states, where the local authority is conducting an EHC needs assessment, it must seek advice, where it considers that appropriate, in relation to the social and health care needs of the child or young person. Should the advice indicate that a more detailed assessment is needed, the local authority or health authority will need to consider whether to carry out an assessment under existing legislation.

The powers in clause 36 already enable regulations to provide that EHC needs assessments may be combined with other assessments—that is subsection (11)(h)—and that information, obtained under a section 17 assessment for example, can be used for the purposes of an EHC needs assessment, so there is no need for an EHC needs assessment to trigger another assessment. We are clear that the new EHC needs assessments will be combined with social services assessments made under section 17. The Children Act 1989 makes it clear that section 17 assessments may be combined with other assessments, including assessments of SEN.

There is of course a general duty under section 17 of the 1989 Act for local authorities to provide services to meet the needs of children in need, including disabled children, in their area. The definition of a child in need is extremely wide, and deliberately so. Determining who is in need requires judgments from social workers who are in a position to consider family, educational, social and environmental circumstances. Although there is no explicit statutory duty to carry out an assessment of needs under section 17, case law, as well as statutory guidance, makes it clear that local authorities are under a duty to assess children’s needs.

The Department’s updated statutory safeguarding guidance clearly sets out the process for the assessment of children in need, and explains the purpose and importance of the assessment of children in determining which are the most appropriate services to provide across the whole range of education, health and social care. Young people aged 18 and over who now fall within the scope of SEN legislation and are eligible for adult social care, will, under the draft Care and Support Bill, receive support via a statutory care plan. The intention is that that will form the care element of the EHC plan for young people with SEN.

Regarding health services, which my hon. Friend the Member for South Swindon delved into during his opening remarks, clinical commissioning groups are under a duty under section 3 of the National Health Service Act 2006 to arrange health care provision to meet the reasonable needs of their population, and the mandate makes that clear. Children and young people will be at the heart of the new health system.

In the indicative regulations, we say that where the local authority secures an EHC needs assessment for the first time for a child or young person it must seek “medical advice” from a medical practitioner identified by the relevant CCG. So there will be improved synergy, which my hon. Friend discussed, between education, health and social care in bringing together the various assessments and, therefore, the planning that follows for each individual child. In the case of services for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970, once the local authority is satisfied that it is necessary to provide assistance under that section it is under a duty to provide that assistance.

Of course, the backdrop to all this is still the work going on in the pathfinder areas to examine how we can bring—at a ground level—the assessment process much closer together across all the different agencies. I refer my hon. Friend to the response from a parent who is involved in the EHC pilots in Hartlepool:

“There is really no comparison between the statutory assessment and the new approach. As the annual statement reviews are totally education-focused, we don’t get to know who my child is. I am fortunate enough to be involved in care co-ordination, which looks not only at my child but also his wider world. To have a similar approach in one plan, instead of several different ones, would be far less time-consuming and make life a lot easier for parents and carers.”

So there is good evidence being established in the pathfinders, as demonstrated by that quote from a parent involved, that by bringing the assessment process together and backing it up by legislation—through the Bill, the regulations and the code of practice—we are in a better position to ensure that the assessment and provision of services happens, where required, in a much more holistic way. The legislation and indicative regulations make it clear that assessment should be co-ordinated across the education, health and care landscape.

On that basis, I hope that I have provided my hon. Friend with some reassurance that the points he has raised are addressed through the work we are doing, both through Parliament and in the pathfinder areas. Therefore I urge him to withdraw his amendment.

Robert Buckland (Conservative, South Swindon)

I have listened with care to the Minister. As I did so, I looked again at the draft code of practice—the indicative draft, which was provided to us before the recess. There is a lot of encouraging text in that document, particularly at paragraph 6.5, with an emphasis on a “tell us once” approach, which I entirely endorse because I know from my own experience how tiring it can be for someone to reinvent the wheel every time they see a new agency. However, I urge him to follow up the exhortation at the end of that paragraph, which says:

“This section will be developed further.”

I am sure that his team will work as hard as they can to ensure that those responsible for the assessment understand the full extent of their statutory duties.

I am entirely in sympathy with the argument that we should avoid piling further legislation on further legislation. If, as the Minister has outlined, existing duties bring together and net together these obligations, I, for one, would be content. The key is to ensure that the code of practice, in its particularity, makes it crystal clear to all agencies that that joined-up, global approach to the child and their family is essential if the aims of this legislation are to be met. I am also encouraged by what he said about the Hartlepool pathfinder. I urge him and his team to continue working on this issue, to ensure that by the time the Bill finally emerges it will reflect, as fully as possible, the aspirations that people in this room and beyond all share. On the basis of what I have heard, I beg to ask leave to withdraw the amendment, but I know that his team will work even harder on the indicative draft.

Clause 37 - Education, health and care plans

Edward Timpson (Conservative, Crewe and Nantwich)

I beg to move amendment 62, in clause 37, page 29, line 3, leave out from ‘provision’ to end of line 4 and insert

‘reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs.

‘(2A) An EHC plan may also specify other health care and social care provision reasonably required by the child or young person.’.

Members will no doubt recall that when I introduced amendments 55 and 56, I talked about my intention to introduce a duty on health commissioners to arrange for the health care provision specified in the EHC plan, and I explained how the amendment addresses parents’ long-standing concerns about the lack of accountability on health bodies for the provision specified in statements of special educational needs. I explained that, in my view, the creation of a new education, health and care plan and the new joint commissioning requirement has provided a unique opportunity to address that concern.

The duty on health commissioners has been warmly welcomed. Amendment 62 is one of a series of Government amendments relating to that duty. It amends clause 37(2), which sets out what an EHC plan may specify. The health and social care provision to be specified in the plan is provision that is reasonably required by the learning difficulties and disabilities that result in the child or young person having special educational needs. The amendment is consistent with amendment 58, which relates to the provision that the joint commissioning arrangements must include.

The amendment also makes it clear that local authorities and health commissioners may include additional health or social care provision in plans if it makes sense to do so. For example, if a child with a plan for their significant dyslexia developed an unrelated illness, it might make sense for them, their parents and the professionals supporting them to co-ordinate their care through the plan. That is a common-sense, child-centred approach.

Sharon Hodgson (Labour, Washington and Sunderland West)

I welcome the Government’s amendment, and thank the Minister for introducing it.

Clause 38 - Preparation of EHC plans: draft plan

Robert Buckland (Conservative, South Swindon)

I beg to move amendment 44, in clause 38, page 29, line 27, at end insert—

‘(g) an institution of higher education which the young person has accepted an offer from.’.

The aim of the amendment is to ensure that young people continue to be entitled to an education, health and care plan if they attend university or higher education, which is referred to in the amendment. Under the Bill as drafted, the plan would stop if a young person chose to go to university.

It is difficult to see how the exclusion of universities from the new framework can be justified, particularly in light of the fact that we have rightly accepted that the EHC plan should continue in some cases up to the age of 25. The acceptance that EHC plans should continue into further education is an important part of the argument. In the further education sector—I am glad to say that this is happening in my area as much as anywhere else—the possibility of studying higher education courses is increasing.

I am grateful to my hon. Friend the Minister and the Government for listening. We have accepted that EHC plans should continue when a young person undertakes an apprenticeship, and should continue even when a young person is not in employment, education or training. It seems to me, therefore, that there is a potentially worrying gap, in that the plans do not continue into university.

Many universities already meet the needs of disabled young people well, and the payment of the disabled students’ allowance is often sufficient to meet the needs of those young people. However, some disabled people report that they have to continue to battle to get all the support they need to access higher education, particularly as regards the social care services needed to help them live independently while studying.

Undoubtedly, there would be benefits to young people keeping co-ordinated health, education and social care support while they are at university. The fact that a young person might be moving away from a particular local authority that has made provision under the plan is not an issue. In fact, local authorities are already experienced in maintaining statements of special educational needs for young people who are not being educated in their area. A casual thought shows that to be true in the case of out-of-county or out-of-borough placements in residential schools, which are necessary for a relatively small cohort of young people with SEN.

Amendment 44 would mean that a university that has offered a place to a young person could be named on an EHC plan. If the young person did not have an offer from the university, the university could not be named in the plan. I am not suggesting that disabled young people should not be expected to contribute fees in the same way as non-disabled young people; my proposal is only that they continue to have co-ordinated arrangements for health, education and social care while they are at university, and to have that support reviewed.

I know that the Minister’s intention is for the reforms to create a system in which we have the highest aspirations for disabled young people. That is why it is important to consider how best we can include universities in the new framework. It may not be easy, but what is difficult need not be impossible. I urge the Minister to look closely at the proposal, and to give further consideration to how best we can enable young people with disabilities to gain access to higher education.

Sharon Hodgson (Labour, Washington and Sunderland West)

I speak to the amendment as a mother of a child with severe dyslexia who has just made the move to university, as well as the Front-Bench spokesperson. After a variable experience—to put it mildly—with regard to support throughout my son’s school days, and a poor experience when he was in further education, my husband and I were looking forward to our son going to university, because we knew, or we thought we knew, that provision in higher education is generally much better. In reality, my son’s support package is still not in place, meaning that he is still struggling along, nearly a year into his degree course.

We hope that the equipment and software that he so desperately needs to support him will be approved and will finally be here for at least the majority of the summer term; it is now on order, I understand. When it is in place, it will be the best support that he has ever had in all his years in education, but the delay has been unacceptable, and was totally avoidable, had his FE college given him a proper and professional post-16 assessment, as I now know it should have done but did not—probably as a cost saver, but who knows?

That is the thing with our SEN system: parents learn along the way things that they wish they had known sooner. Parents of kids with special educational needs or disabilities have to be super-parents; they have to learn, fight, and circumvent the system to get their child the support that should have come their way as of right, via the professionals employed across the education system. If that did happen, all kids would be sure to get the support that they needed, not just those with fully fledged super-parents.

As far as I can see, the situation is not all rosy in HE. There are merits in trying to achieve a more joined-up system for a young person until they reach the age of 25, which, for those with the ability, will often encompass their university years. I am not convinced, however, that now is the right time, as much work has already gone into the Bill over the past two years, and I fear that so much more would need to be done to include the amendment.

That said, I am pleased that the hon. Member for South Swindon has instigated the debate, and I would be interested to know the Minister’s thoughts on whether the Government will look at the idea in the medium or longer term.

Caroline Nokes (Conservative, Romsey and Southampton North)

It is a pleasure to serve under your chairmanship again after the Easter recess, Mr Chope. I wish to speak briefly in support of the amendment and the principle of ensuring that provision in a wide range of institutions for young people between 16 and 25 is available to all young people with SEN.

I appreciate how lucky I am to have in my constituency a range of institutions that provide support for children and young people with SEN up to 25. It is critical that we do not pigeonhole people. Too often, there is an assumption that those with SEN will not go on to university. The absolute opposite is true, however, and it was a real privilege for me to meet, just before Easter, a young man who fully hopes to go to university this autumn, who is the head boy of his school, and who has achieved an enormous amount despite his learning difficulties. The National Audit Office can put a fiscal benefit on encouraging and enabling such young people to go off and learn independently, but in my view that is not the most important aspect. The most important aspect is that they should have the same range of choices as their peers. There should not be discrimination regarding further education institutions and whether a young person can go on to university; they should have exactly the same range open to them if they have the support of the education, health and care plan.

Edward Timpson (Conservative, Crewe and Nantwich)

I am again grateful to my hon. Friend the Member for South Swindon for tabling amendment 44, and I am pleased to have the opportunity to clarify how our reforms will work alongside the existing systems of support for disabled young people in higher education. I understand why my hon. Friend seeks to extend the scope of EHC plans to include higher education. I will set out some of the good reasons why that is not desirable, but I hope to provide him with some reassurance about how we can improve the transition into higher education. I will also pick up on some of the points raised by the hon. Member for Washington and Sunderland West and consider how we can engage with universities as we continue with the reforms to ensure that we involve the work that is done in the EHC plan as much as possible through the transition process.

As my hon. Friend the Member for South Swindon will know, unlike in further education, local authorities do not commission places from higher education institutions. It would not, therefore, be reasonable to hold a local authority accountable for securing special educational provision through an EHC plan when a young person is at university, because the institution is entirely independent of the local authority.

I listened carefully to the description that the hon. Member for Washington and Sunderland West gave of her family’s experience. Unfortunately, as she has exemplified, there are still cases of young people not receiving support at the right time. That is one of the reasons why we continue to push to improve the system. There are also examples of the system working well, and we need to spread good practice more widely. For example, “Into Higher Education 2013”, a guide for disabled students who are thinking about studying in higher education, which is published by Disability Rights UK, contains a case study of a young man with Asperger’s syndrome who is studying for a foundation degree. He said:

“Being a disabled student at college has never really stood out as my sole characteristic. Perhaps it is noticeable to some people, maybe even many, but it never really got in the way of anything. Tutors and support workers were always fantastic at what they did. They were supportive and understanding, as well as great people to get along with. If I ever needed assistance, they were always there for me.”

I am sure that the hon. Lady wishes that that had been the case in her situation. The young man continued:

“The support I received was funded through Disabled Students’ Allowances (DSAs). Applying for DSAs with honest answers about my condition and the help I needed meant they could judge what assistance was necessary at college and at home without anything being redundant.”

In the code of practice, we are ensuring that planning for the transition to university—a good outcome that should be in a plan—should be done in February of each year, rather than at the last minute. In that way, the situation that the hon. Lady described can be avoided, and I hope that that provides her with some reassurance. We must, of course, keep a close eye on the situation.

Significant support is available to young people in higher education through disabled students’ allowances. They are not means-tested, they are awarded in addition to the standard package of support, and they do not have to be repaid. They can help to cover any additional cost that a student may incur because of a disability. In the 2010-11 academic year, 47,400 full-time students were provided with DSA support amounting to £109.2 million.

Sharon Hodgson (Labour, Washington and Sunderland West)

I want to clarify that the support that my son has received from the professionals with regard to accessing DSA has been second to none. The problem has mainly been the length of time that the process has taken, because it only started once he had enrolled. FE had not put him through a post-16 assessment, so nothing could be done before his enrolment on the day he turned up at university. It has taken from late September until now to get that support in place. I am grateful to hear that the process should start in the February of each year; however, in that case we need to engage with schools and FE on the post-16 assessment that is necessary, especially for children with dyslexia.

Edward Timpson (Conservative, Crewe and Nantwich)

I thank the hon. Lady for her clarification, and for her support in looking to improve the transition period. She might want to look again at the code of practice to see whether it fulfils that objective, and I am happy to discuss that with her further in due course.

I would also like to assure my hon. Friend the Member for South Swindon that the health and social care support a young person receives will continue, where needed, when they move away to university. Higher education institutions are also, of course, subject to the Equality Act 2010 and have their own systems of support for students with a disability. In most cases, social care will continue to be provided by the home local authority, as young people remain ordinarily resident there. Under the changes in the draft Care and Support Bill, which I mentioned in a previous debate, 18-year-olds who are eligible for adult social care will in future receive a statutory care plan. Health care support will also continue where it is still required. Young people can stay with their home GP or choose to register with the health practice within their university if that is more convenient for them, especially if, as in many cases, their needs are complex.

As part of planning for transition, EHC plans prior to going to university should set out how support will be maintained, including any handover between services—clearly, a crucial period—to ensure that that is planned in advance and managed smoothly. I am happy to explore further with my hon. Friend how we can strengthen the transition, so that universities are fully versed in the individual needs and circumstances of every student joining them from the EHC plan. There is nothing to prevent any university that wants to from using that as a framework for how it then provides the necessary support for each of those students, to ensure that all their needs are being met and students can fulfil their potential as they move through university life to the completion of their courses.

I hope that provides my hon. Friend with some reassurance. I am happy to continue to discuss with him ways in which we can strengthen provision in the period of transition. On that basis, I urge him to withdraw his amendment.

Robert Buckland (Conservative, South Swindon)

I listened with care not only to the Minister but to the hon. Member for Washington and Sunderland West. She spoke, with a great deal of personal experience, about a stage that I have yet to come to, which is the transition from secondary to further education and then on to higher education. We all know that that is far too difficult and vexed. We have a golden opportunity to get that right and ensure that that transition is a matter of achievement and is a smooth process, rather than the challenge that it all too often presents at the moment.

My hon. Friend the Minister talked about the unsuitability of naming universities, bearing in mind the fact that they are institutions that are wholly outwith the control of local authorities. I would urge a little caution about that argument. We already know that particular named institutions that are out of borough or out of county are not within the control or ownership of a local authority; they will often be in the independent sector. We have had much debate in Committee about the importance of the independent sector in providing specialist support for low incidence special needs— in other words, refreshing those parts that, frankly, local authorities, with all their expertise and therefore all the demands upon their services, cannot reach. Therefore, there is an analogy to be drawn between the status of those institutions that are not within the control of local authorities and that of higher education institutions.

I accept, however, that the focus and thrust of this debate has been the need to ensure, first and foremost, that there is proper preparation for a young person’s move to higher education. It is to be hoped—although it cannot always be the case, as there will be individuals with continuing high physical needs—that, as a child or young person with SEN grows up, their ability to live more and more independently will increase. I say those words advisedly; as I have said, that will not always be the case. However, if one accepts that trajectory, the degree of support that would be needed will in many cases lessen.

Having said that, lessening does not mean ending. Therefore there is a continuing concern that we end up in a situation where young people feel that because they will not be covered by the EHC plan—because there is not that continuity of provision—they are unable to go on to higher education. That would be a highly undesirable state of affairs. It would achieve the opposite of what the Government are trying to achieve with the Bill. I look forward to working further with my hon. Friend on these matters. I note that he is in listening mode and it is in that spirit that I beg to ask leave to withdraw the amendment.

Clause 39 - Finalising EHC plans: request for a particular school or institution

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 129, in clause 39, page 30, leave out lines 4 to 10 and insert

‘it is the opinion of the persons or agencies involved in drafting the child or young person’s EHC plan that the school or institution requested is unsuitable for the age, ability, aptitude, desired outcomes, well-being or special educational needs of the child or young person concerned, and that reasonable adjustments cannot be made.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 205, in clause 39, page 30, line 10, at end insert—

‘(4A) Where a local authority considers that subsection 4(b) applies it must, before reaching a conclusion on that matter, consider such incompatibility in a manner that does not discriminate between maintained schools and non-maintained schools.’.

Amendment 130, in clause 39, page 30, line 11, after ‘must’, insert

‘, subject to agreement of the child or young person concerned and their parents,’.

Sharon Hodgson (Labour, Washington and Sunderland West)

Amendment 129 aims to generate debate about the reasons that schools should be able to use to refuse to accept a child with special educational needs, suggesting that the decision could be taken away from them and given to the professionals involved in drawing up the child’s education, health and care plan. As I have discussed before, there are concerns, including those articulated by the Children’s Commissioner, that some schools unfairly reject, either formally or informally, children with special educational needs, because they think they will be too much trouble or will put the school at a disadvantage in terms of league table performance.

We must seek to stamp out this practice, and although I do not intend to push the matter to a vote, I hope the Minister will examine whether such caveats can be removed or modified to reduce the scope for this kind of practice, and place the decision in the hands of those who are more neutral. Amendment 130 to subsection (5) would ensure that where parents try to name a school and a local authority relies on an exception under subsection (4) to refuse to name that school, and then puts forward another school, that second-choice school can only be named on the plan if the young person or their parents agree.

This amendment could equally have been made to subsection (6), which sets out who a local authority should consult before naming a school other than the choice of the parents or young person, but it specifies that only the school should be consulted, not the parents or young person. If this clause were to be applied to the letter, the first a parent or young person would know that a completely different school had been named on the plan would be when they are sent a copy of the finalised version. That would seem to be a drafting oversight, as I cannot imagine that it would be the intention of the Minister that parents should not have the power of veto just because their first choice did not work out.

Conscious of time as we want to make progress, all I will ask of the Minister is that he considers whether Government amendments might be tabled later on this matter. The amendment tabled by the hon. Member for South Swindon seeks to ensure that local authority commissioners do not rule out non-maintained or independent special schools or colleges because they believe, rightly or wrongly, that placing a child in one of those schools will be more costly on a year-by-year basis. I spoke in another debate about the need to encourage commissioning that looks at the long-term impacts of a placement on the outcomes of a child or young person. I did not get a specific response to that point from the Minister, so I ask again whether the Department might look to provide guidance to assist local authorities in being good commissioners, which will ultimately save them money.

Edward Timpson (Conservative, Crewe and Nantwich)

I know amendments 205 and 230 are also in this group. I am grateful to the hon. Lady for giving us the chance to discuss the provision in clause 39 in relation to a local authority’s decision on whether to name the school or institution requested by a child’s parent or by a young person in an education, health and care plan. Clause 39 makes clear that where a parent or young person requests that a particular school or other institution is named in an education, health and care plan, the local authority must name it in the plan unless the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or their attendance would be incompatible with the provision of efficient education for others, or the efficient use of resource.

As the hon. Lady said, amendment 129 appears to be designed to ensure that local authorities take account of the specific needs of the child or young person, including the desired outcomes for them and their well-being. The provisions in the Bill provide for this, in that clause 37 requires the plan to specify the outcomes sought for the child or young person in the special education provision and other provision that they require. The advice obtained from professionals and agencies involved in the assessment of the child or young person’s needs will have been considered and will be reflected in the plan by those who draft it.

The provision for local authorities to have regard to children or young people’s well-being is made in clause 25. In view of their responsibility under clause 42 for securing the provision in a child or young person’s plan, it is right that the decision about the school or other institution to be named in the plan should rest with the local authority taking account of the conditions in clause 39(4).

As we discussed when debating amendment 107 and clause 33, there will be occasions when the attendance of a child at a particular school or other institution would significantly impact on the education of others. The provision in clause 39(4) for local authorities to consider the efficient education of others provides an important safeguard in that respect. Similarly, the requirement to consider the efficient use of resources will inevitably involve consideration of the reasonable steps that might be taken to enable the placement to take place, including any reasonable steps under the Equality Act 2010.

Parents and young people will be consulted all the way through the assessment process and a placement so that they do not learn of a placement only at the end of that process. The hon. Lady is right to raise that because one of the concerns that parents have had of the current system is that they get the information at a late stage when they needed it at a much earlier stage. The whole purpose of the reforms is to have parents involved throughout the process.

I will look, as the hon. Lady has asked, at how we ensure that that takes place and the circumstances in which the school named is not necessarily the one that the parents expected so that they have sufficient time to consider that and make the appropriate arrangements either to challenge that decision or to negotiate with the local authority an arrangement that satisfies them. I hope that, on that basis, the hon. Lady is satisfied and will withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I thank the Minister for his response and his reassurance that parents and children will be included much earlier on in the process. With that assurance, I beg to ask leave to withdraw the amendment.

Clause 40 - Finalising EHC plans: no request for particular school or other institution

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 131, in clause 40, page 30, line 38, at end insert—

‘(2A) In determining which school or institution to name on an EHC plan, the local authority must have regard to—

(a) where the child or young person is ordinarily resident, and the accessibility of the school or institution in relation to this;

(b) the suitability of schools and institutions based on the age, ability, aptitude, desired outcomes, well-being or special educational needs of the child or young person concerned;

(c) the quality of teaching within the school, as deemed by the Chief Inspector; and

(d) any other considerations or preferences stated by the child or young person and their families.’.

The intention behind the amendment tabled by me and my hon. Friend the Member for Wigan is to ensure that where a young person or parent has not indicated any particular preference for an education provider to be named on a plan, local authorities consider a range of factors when deciding which institution to name. The amendment primarily aims to ensure that in cases where, for whatever reason, a parent is not as engaged in the process as they might be, commissioners take decisions on the parent’s behalf that they believe are the best interests of the parents and the child in question, rather than those of the authority. That is particularly important with regard to: whether they want to be in mainstream or special provision; whether a school is close to—or accessible from—a child’s home; and, frankly, whether the school is any good at providing for the additional needs that the child will have.

I am sure that the Minister would not want children or young people to end up with worse provision because no preference was expressed by their parents. I would therefore be grateful for any assurances that he can offer in that regard.

Edward Timpson (Conservative, Crewe and Nantwich)

We discussed some of these issues before in relation to amendments 107 to 109, 129, 205 and 130, and I believe that many of the same considerations apply here. I am grateful to the hon. Lady for raising an important point that transcends all those amendments.

As I reiterated in the previous debate, the involvement of children and young people and parents in decisions about the provision that they require, their wishes and preferences is, of course, a key element in this part of the Bill and is reflected in the general principles at the start of this part of it, at clause 19, and in the specifics of the assessment process thereafter. Indeed, parents and young people have the right to request a particular school or institution to be named in their plan, if they wish. However, clause 40 applies where they do not express any preference, as the hon. Lady said.

Local authorities should and do try to secure provision for children and young people with special educational needs as close to where they live as possible, but, as we know, in some instances that may not be possible, particularly if the child or young person has a high-level low incidence of need. In those cases, it may be necessary for the local authority to secure provision further afield. In view of its responsibility, under clause 42, for securing the provision in a child or young person’s plan, it will necessarily choose an institution that is suitable for the age, ability and aptitude of the child and suitable for the special educational needs of the child. However, it is right that the decision about the school or other institution to be named in the plan should rest with the local authority, taking account of the important conditions in clause 33(2). If the child’s parent or the young person does not agree with the school or other institution named by the local authority, they can appeal to the tribunal. The hon. Lady knows that we are extending the rights of parents, and particularly young people, to make that challenge through the appeal process, over and above what currently exists.

In light of my decision in the previous debate to consider what the hon. Lady said about ensuring that parents have the requisite information and knowledge at a time that they can properly be engaged in the process, so that the right decision is made, and in view of the reassurances that I have given about other elements of the Bill that impact on the matter, I hope that she will feel it appropriate to ask leave to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

Again, I thank the Minister for his commitment to consider the wording. With those reassurances, I am happy to beg to ask leave to withdraw the amendment.

Clause 41 - Independent special schools and special post-16 institutions: approval

Robert Buckland (Conservative, South Swindon)

I beg to move amendment 190, in clause 41, page 31, line 10, at end insert ‘and listed in a local offer.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 191, in clause 41, page 31, line 22, at end insert—

‘(3A) The Secretary of State must give consideration to an institution’s request to be approved if it meets the criteria outlined in Regulations made under this section.’.

Amendment 132, in clause 41, page 31, line 23, at end insert—

‘(4A) The Secretary of State must maintain a current list of institutions approved under this section on the Departmental website, including information on the institution and the nature of special educational provision, health care provision and social care provision available.’.

Amendment 133, in clause 41, page 31, line 23, at end insert—

‘(4B) The Secretary of State must issue notice to local authorities of the designation of an institution under this section within two weeks of said designation, including information on the institution and the nature of special educational provision, health care provision and social care provision available.’.

Amendment 134, in clause 41, page 31, leave out lines 32 and 33 at end insert—

‘(d) further specifying information to be provided to the public and local authorities by the Secretary of State in exercising his duties under subsections (4A) and (4B).’.

Amendment 192, in clause 41, page 31, line 33, at end insert—

‘(e) what recourse institutions will have to appeal or review decisions made by the Secretary of State;

(f) as to what timetable a list of institutions will be adjusted, published and reviewed;

(g) what relation an approved list of institutions has with regulations governing local offers.’.

Robert Buckland (Conservative, South Swindon)

I commend the Government on including independent special schools and post-16 institutions. It is an important and welcome acknowledgement that the independent sector is an essential, integral part of SEN provision, as has been mentioned in other debates. We can all think of examples of how the independent sector is supporting families in the constituencies of Members in this Committee Room and beyond.

The amendments would ensure that as much confidence and clarity as possible can be given to independent service providers that wish to be included in the new section 41 list of providers who can be requested as part of the plan. The amendments would ensure that young people are not denied the full range of choices and opportunities that exist out there.

Amendments 190 to 192, tabled in my name, deal with the nuts and bolts of the process and cover the gamut of the process right through to appeal and deal with how any decisions made can be reviewed. In a nutshell, as much as can be done to tighten up the legislation to make it clear should be done. I look forward to hearing my hon. Friend’s remarks as to how he sees the process working in a way that helps not only the independent sector but, most importantly, the parents, children and young people involved. Yet again, the emphasis must be on clarity, redress and recourse to a review or appeal of any decision. On that basis, I look forward to my hon. Friend’s reply.

Sharon Hodgson (Labour, Washington and Sunderland West)

First, I join the hon. Gentleman in welcoming the clause. The Opposition campaigned with others to ensure that independent special schools and colleges, which are often centres of excellence in providing for children and young people, particularly those with more complex needs, were part of the mix of provision eligible to be named in an education, health and care plan. We are pleased that the designation scheme we suggested has made it into the Bill.

As the hon. Gentleman said, our amendments would ensure that, now that children and young people will have such institutions available to them, they and their parents are informed of that and can access the information they need to decide whether to apply. Specifically, that will require the Department for Education to let local authorities know when a school or college has been approved, so that the authority can put it in its local offer document, and to maintain a central list on the internet to allow parents to research options. That would not be particularly onerous for the Department, and access to that information would be of great benefit to parents. If the Minister cannot accept the amendments, I hope he will set out how the Department intends to publicise that information.

There is concern about the draft illustrative regulations the Department published to accompany the clause, as they seem to relate only to post-16 independent special institutions and not to what we would think of as special schools. Is that an error, or are there other regulations, either to follow or already on the books, that the Department will apply to the clause?

Edward Timpson (Conservative, Crewe and Nantwich)

The clause sets out how the Secretary of State can approve independent special schools and independent specialist colleges with the consent of their proprietor, so that they can be the subject of a request to be named in an education, health and care plan as it is drawn up.

I listened carefully to the points made during pre-legislative scrutiny on whether independent special schools and independent specialist providers should be included in the Bill, and I came to the view that I could accept the Education Committee’s recommendation that they should. As a result, the Bill now gives 16 to 24-year-olds important new rights to express a preference for an education provider that meets their needs and to have that preference reflected in their education, health and care plan.

If those rights are to be exercised, it is important that specialist provision is available to meet a range of needs. A number of independent specialist colleges have expressed concern to me that, in the transition to the new funding arrangements for the academic year 2013-14, which will come into effect from August 2013 and prepare the ground for the new system, local authorities might not commission sufficient places to enable specialist provision to survive. Ensuring that specialist provision is available for those who need it is important and gives good value for money, so we are acting to safeguard capacity by introducing transitional protection for independent specialist colleges.

Before Easter, the Education Funding Agency advised such colleges that we will guarantee funding for the current number of filled places over the next two years, while places that are not filled by local authorities will be funded at 100% of unit costs in the next academic year and 80% in the year after. That will give institutions breathing space and provide time for the new arrangements under the Bill to bed in, thereby protecting provision for the more vulnerable students. In addition, my right hon. Friend the Minister for Schools will oversee a high-level implementation group to look at how the operation of the high-needs funding reforms can be improved.

Clause 41 is included so that we have a simple definition of what it means to be an independent special school or an independent specialist provider for the relevant purposes. That is necessary, as there is not currently a legal definition that we could use. The clause also sets out how the approval may be withdrawn.

I have published indicative regulations to be made under the clause, which set out the principles of how we will approve independent special schools and special post-16 institutions. I assure the hon. Member for Washington and Sunderland West that those will apply to schools as well as colleges, but we will look again to ensure that that is abundantly clear in the indicative regulations. That is our intention, and I think that we are as one in what we want to achieve.

The indicative regulations prescribe what type of institution may be approved, the criteria it must meet, the circumstances in which approval may be withdrawn and how a list of those institutions is to be published. I want the process for approval as a provider under the clause to be as straightforward and unbureaucratic as possible. I am sure that hon. Members agree with such an approach. I can assure the hon. Member for Washington and Sunderland West and my hon. Friend the Member for South Swindon that the amendments are not required.

The indicative regulations make it clear at regulation 7 that

“the Secretary of State must publish a list of all institutions that have been approved on the internet”.

Amendment 132, which is about publishing that information on the Department’s website, is therefore not necessary. The local offer will include information about the provision a local authority expects to be available, both within and outside its area, for the children and young people for whom it is responsible. That will include provision at independent special schools and independent specialist providers, whether or not they have been approved under clause 41, so amendment 190 is likewise not necessary. Amendment 191 is unnecessary because the Secretary of State will have to consider every application made, to ascertain whether the criteria for approval have been met.

Amendment 133 is not necessary either, because the requirement on the Secretary of State to maintain a list of approved institutions, published on the internet, gives the necessary flexibility to keep the list up to date to inform local authorities, parents and young people. Regulation 6, on approval of independent educational institutions and special post-16 institutions, will ensure that where approval is withdrawn, local authorities are notified of that decision, which will not take effect until 28 days after the decision was made. That will allow sufficient time to factor the withdrawal into the continuing discussions with parents, children and young people about their placements. As amendments 132 and 133 are not necessary, there is no need for amendment 134, which relates to them.

The indicative regulations set out the procedures and timetable for the Secretary of State to follow on approving institutions and withdrawing that approval. Under clause 30, the local offer will include information about the provision that is expected to be available within and outside a local authority area. Regulations 5 and 6 set out the procedures for the Secretary of State to follow in withdrawing approval. The regulations do not set out procedures on how to appeal or review the Secretary of State’s decision, but we do not believe those are necessary. Even where an institution’s approval has been withdrawn by the Secretary of State, that does not prevent it from being named in an education, health and care plan if both the local authority and the institution agree that it is able to make appropriate provision available.

I understand the desire to set out clearly in the Bill how the Secretary of State should exercise his functions in relation to institutions approved under the clause, but the clause and the indicative regulations made under it already set out how the Secretary of State should do that. I believe that those requirements should be flexible and responsive, allowing sensible discretion. That is why we have proposed setting them out in a light-touch way in regulations, which can be readily adapted if necessary, rather than specifying requirements on the face of the Bill.

In the light of those reassurances, I urge the hon. Lady and my hon. Friend not to press their amendments.

Robert Buckland (Conservative, South Swindon)

I assure my hon. Friend that I agree with him in principle. Where procedures have been set out in the regulations, I am content. As long as they appear in a document with some legal force, it does not have to be primary legislation. The advantages of flexibility in using secondary legislation are axiomatic.

I listened to what my hon. Friend said about the powers in relation to local authorities and institutions and approval being withdrawn, but there are still potential problems with funding. I can see arguments about whether the DFE would feel that a given institution should indeed be in receipt of any public funding. There may well be a need for absolute clarity in regulations when it comes to resolving those issues, so that when EHC plans are prepared no one is left in any doubt as to the suitability and authorisation of a named establishment. It would be regrettable if an institution found itself in no man’s land, caught between not being approved and being named in an EHC. I urge my hon. Friend to look at that point carefully when finalising the regulations that will underpin the measures. On the basis that I agree with him on the principle of not overcomplicating primary legislation, I beg to ask leave to withdraw the amendment.

Clause 42 - Duty to secure special educational provision in accordance with EHC Plan

Edward Timpson (Conservative, Crewe and Nantwich)

I beg to move amendment 63, in clause 42, page 31, line 34, at end insert—

‘(Z1) This section applies where a local authority maintains an EHC plan for a child or young person.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Government amendment 64.

Amendment 135, in clause 42, page 31, line 36, after ‘provision’, insert ‘and social care provision’.

Government amendments 65 to 67.

New clause 16—Duty to secure social care provision in accordance with EHC Plan—

‘( ) A local authority that maintains an EHC plan for a child or young person must secure the social care provision identified through an assessment under section 17 of the Children Act 1989 specified in the plan.’.

New clause 17—Continuity of special educational provision when a child or young person moves residence—

‘(1) This section applies where—

(a) a local authority (the “sending authority”) maintains an education, health and care plan for a child or young person, and

(b) another local authority (the “receiving authority”) is notified by the child’s parent or the young person that they intend to move residence to the receiving authority’s area.

(2) Where the sending authority is notified by the child’s parent or the young person that they intend to move residence it must provide the receiving authority with a copy of the education, health and care plan.

(3) The receiving authority must—

(a) review the child or young person’s education health and care plan having regard to the need for continuity of provision, and the outcomes specified in the plan; and

(b) provide the child’s parent or the young person with such information as it considers appropriate.’.

Edward Timpson (Conservative, Crewe and Nantwich)

The Government amendments are designed to support the new duty on health commissioners to arrange the provision of the health care services in EHC plans. We discussed this in detail in a previous sitting and earlier this morning. Amendment 63 makes clear the circumstances in which the duty applies, when a local authority maintains an EHC plan for a child or young person. Amendment 64 provides that where a plan specifies health care, the responsible commissioning body must arrange that provision.

Amendments 65 and 66 make clear when a duty on health commissioners does not apply. That happens when parents or young people have made suitable alternative arrangements to cover all or part of the health care provision specified in the plan. That means that the duty can be disapplied wholly or partially. That is consistent with arrangements where parents or young people make alternative arrangements for special educational provision specified in a plan. Amendment 67 clarifies that “specified” means specified in the plan for the child or young person.

Robert Buckland (Conservative, South Swindon)

New clause 16 is designed to explore the extent to which, in principle, a local authority should be placed under a duty to supply social care as specified in EHC plans.

We have already discussed this morning, on a slightly different topic, the operation of the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970. The Minister outlined the nature of the duties and the entwinement of those existing statutory duties. The proposed new clause would require a local authority to set out any social care provision that had been identified under a section 17 assessment. That provision would be set out in an EHC plan, and there would be a further duty on a local authority to secure it.

As we know, the Government have already moved to extend the statutory duty to cover not just educational provision but health care provision; the only part of the equation untouched is the social care element. I believe that the social care services that a family has been identified as needing should be included in EHC plans and that local authorities should be under a duty to provide those services. We know how important social services are in supporting not just disabled children and young people themselves, but their families. We have already talked this morning about short-term breaks and respite care and all the benefits they bring to the well-being of the young person and the carer’s family.

Happily, there are many good examples of social care services but, sadly, there are far too many examples of poor practice. Families get an assessment but not the services identified—expectations are raised that are cruelly unfulfilled. There is often a lack of clarity about which Act social care services for disabled children are provided under, and whether a child and their family should be receiving a particular service. That results in far too many gaps in support and a failure to fulfil entitlements. My amendment would be a major step towards improving transparency and accountability for those services.

As my hon. Friend the Minister knows and as we have already discussed, we in this room are fully aware of the social care duties to individual children under section 2 of the Chronically Sick and Disabled Persons Act 1970, but outside this place there is far too often a misconception that no such duty exists. It is important to use this opportunity to clear up that misconception and at a stroke make the duties clear not only to providers, but to service users and their families, who should be fully aware of their rights in a way that is accessible, rather than working their way through a legislative maze of Acts, some of which are 40 or more years old. My amendment would bring all the services together in a single plan that meets the Government’s objectives and would not place additional burdens on local authorities, and it would deal with misconceptions and provide clarity.

From Ofsted’s thematic inspection of care last year, we know that in many cases there is not the co-ordination of approaches that is needed. I believe that my amendment would not only create clarity for children and young people and their families, but increase accountability for delivering services and create parity between education, health and social care. It would do all that without placing any major new duties on local authorities. If you like, Mr Chope, it is a bit of codification; we like codification and consolidation, even if it is not within the strict rules that apply in this place. As legislators, we should attempt at all times to make the law clear, which is one of our primary duties on being elected, and here is a prime opportunity to do so.

Sharon Hodgson (Labour, Washington and Sunderland West)

I welcome the Government amendments, which are another piece of the jigsaw of amendments that will ensure that health bodies provide whatever is it is decided that an individual child or young person needs. I am happy to say that those amendments have made my amendment 136 redundant, and I have therefore withdrawn it. However, amendment 135 would introduce the final piece of the jigsaw of entitlement to the provision outlined in a plan—social care. I notice that the hon. Member for South Swindon and I have once again attempted to skin the proverbial cat in different ways.

I want to talk about my amendment in relation to new clause 17, tabled by the hon. Member for Romsey and Southampton North, which is intended to improve the portability of education, health and care plans between local authority areas. I am not sure what inspired her to table the new clause, but I am sure that we will find out soon enough. The importance of portability was most powerfully put to me by Michael and Henrietta Spink, founders of the Henry Spink Foundation, a charity that helps parents to cope with disabled children. As some Members may know, the Spinks are the parents of two boys with chronic and multiple disabilities who had the worst battle imaginable to secure a package of social care services from their local authority for each boy, at a huge personal cost to them professionally, financially and emotionally.

The Spinks eventually decided that it would be more financially viable to sell up in London and live permanently in their holiday home in Cornwall, but they were told that their sons could not receive the same package of support in a receiving local authority, especially down in Cornwall—even for a transitional period—and that they would be better off staying in London. They were effectively prisoners in the local authority where they lived and their children had been born, and moving for whatever reason was simply out of the question. That lack of portability for health and social care seems illogical, quite cruel and Dickensian in 21st-century Britain.

Statements are portable, and I am pleased to see in the regulations that the Department has sent to the Committee that education, health and care plans will be too, but neither gives families a right to social care provision. Until they do, families such as the Spinks will continue to be trapped by the fact that they cannot risk losing the provision they have fought so hard to get. It is not just that sorting it all out again would be inconvenient; their sons’ lives depend on that provision. If for no other reason than that, I ask the Minister to consider including an entitlement to specified social care provision under the legal protection that an education, health and care plan will give families, whether by accepting the amendments or by introducing his own at a later date.

I have an excellent book written by Henrietta Spink chronicling her journey through our system with her two boys. It is an excellent and thought-provoking read, and if he has not come across it already, I will happily pass it to my hon. Friend the Minister.

Caroline Nokes (Conservative, Romsey and Southampton North)

I rise specifically to address new clause 17, which has the straightforward aim of making education, health and care plans as portable as possible and removing the element of adversarial struggle that parents may face.

Earlier today, the hon. Member for Washington and Sunderland West referred to super-parents; I think we have all met such super-parents in our constituencies—people who have won the battle to get what they sought for their child. I am sure every Member can attest to the sense of relief in those super-parents, as if a weight has been lifted from their shoulders, when they finally achieve the package of support and care that their young person needs. Families move, however, and they move for a variety of reasons. I will highlight one specific category of families, but there are people who have to move for work, for financial reasons or through choice, and many families find that there is an insurmountable barrier. The types of family I will discuss are service personnel.

We all know that service personnel move far more regularly than other families. They do not move through choice; they are simply sent wherever the Army, Navy or Air Force dictates. For those with children, it is invariably a battle to get them into school. For those who have children with special educational needs, the battle is magnified many times. I always find it regrettable that this Committee has to use words such as fight, battle and struggle, and that we refer to successful parents as super-parents. There are hundreds of families who, when they are confronted with the prospect of having to move because of their employment or because they are in the Army or Navy, are left with no choice but to go back through the whole system again, which can happen many times over the course of a young person’s passage from five to 25.

Middle Wallop in my constituency is the home of the Army Air Corps, and many parents there have approached me about getting their child into a secondary school of their choice. In Hampshire we are very lucky to have excellent secondary schools, but teachers at Wallop primary school often talk about the challenges they face as a result of having an Army base so close. There is a churn of children as new ones come in and others leave mid-school year, which makes it difficult to have any continuity. For parents with children coming in at what might be described as inconvenient times for the local authority, planning for school places is incredibly difficult.

The draft Care and Support Bill contains a helpful clause that sets out a local authority’s responsibilities both when someone moves into an area and when they move out. New clause 17 seeks to echo that clause. Although I concede that it would not be practical to expect local authorities to replicate exactly the provision agreed by another authority, rather than start from scratch, the new provision should be expected to be based on the previous assessment and agreed outcomes.

The hon. Lady mentioned the case of the Spinks, who were seeking to move out of London to Cornwall. I have been contacted by the charity Ambitious about Autism, which has highlighted the case of a family with a 12-year-old son who attends its TreeHouse school in Muswell Hill. It is an excellent school, and I would recommend a visit to any members of the Committee. The family live in a rented flat in Westminster; it is small and has no outside area, so the family are keen to buy a home of their own, but because of Mohammed’s statement and the struggle they went through to achieve it, they feel trapped in a flat with no garden, where there is no space for a growing boy who needs to run around and control his diabetes through exercise. His mother says:

“Both my husband and I work full time, and we want to invest in a home of our own. As we can’t afford to buy in Westminster we started to look somewhere more affordable. But we soon realised we can’t move out of Westminster for fear of losing Mohammed’s placement...We would have to start the assessment process from scratch, even though Mohammed has very complex needs.”

The stress of that, coupled with the fact that they might lose a place at an absolutely brilliant school, has terrified them to the extent that they are staying put, prisoners in their own home, too scared to run the risk of moving. In Mohammed’s mother’s words:

“We’ve been stuck this way for three years now, with no way out in sight.”

I would like the Minister to consider the plight of families who are too scared to move home and families who might be forced to move because of their job or because they are service personnel. They are just asking that they not be penalised either financially or through stress and anxiety. I ask that he make EHC plans as portable as possible and that the receiving authority be obliged to act upon provision previously agreed by the authority out of whose area a family is moving.

Robert Buckland (Conservative, South Swindon)

I am grateful to my hon. Friend for raising that important point. Should not the simplicity of the system come to this: the parent or family seeking to move should have a clearly identified means of contacting the potential new local authority, so that the statement and EHC plan can be sent on and there can be a speedy process by which the new authority can accept the plan in full or decide that it needs to be amended? Would that not be a major breakthrough, which would enable the mobility that my hon. Friend rightly talks about?

Caroline Nokes (Conservative, Romsey and Southampton North)

I entirely agree with my hon. Friend. That is what the new clause seeks to do. It seeks to put in place a practical, swift system whereby an existing assessment and statement can be passed from one authority to another and families do not have to go through the legal battle, and the time battle, once again. I hope that the Minister is able to shed some light on how the Government intend to make that possible.

Edward Timpson (Conservative, Crewe and Nantwich)

First, I will deal with amendment 135 and new clause 16, both of which seek to introduce a duty on local authorities to deliver social care provision set out in EHC plans.

I start by emphasising the importance of the existing legislative provisions for social care support for children and families provided by section 17 of the Children Act 1989. Those provisions already provide important protections for children, and the Bill does not affect those local authority functions. It is right to say that the duty under section 17 is a general duty owed to all children in need rather than an individually owed duty, but it is right that a local authority that has identified social services to meet assessed needs for social care and has specified them in the plan will provide those services. Furthermore, in the case of services for disabled children, under section 2 of the Chronically Sick and Disabled Persons Act 1970, once the local authority is satisfied that it is necessary to provide assistance under the section, the authority is under a duty to provide the assistance. As now, the route for challenge to hold services to account will be through the local authority complaints process and by way of judicial review.

I shall dig a little deeper into the issue that my hon. Friend the Member for South Swindon raised about how the 1970 Act sits with section 17 of the 1989 Act. The 1970 Act forms the basis for the provision of a range of assistance and services, including equipment adaptations and home help. Where a local authority has determined that section 17 provision is necessary to meet assessed need, we would fully expect that authority to provide the social care. If disabled children are assessed as needing support under section 17, section 2 of the 1970 Act applies. That means that local authorities are required to provide for disabled children under section 2 once they are satisfied that it is necessary to provide assistance under that section.

Although there is a relationship between the two Acts, there is no absolute duty on the local authority to provide services. The authority must determine whether it is necessary to make provision and in doing so take into account its own resources and the resources of the family. The section 2 duty requires the local authority to be satisfied that the authority has responsibility for the relevant functions for that child—for example, if they are disabled, under part 3 of the Children Act 1989. They must then consider whether it is necessary for the authority to make arrangements to assist the disabled child. If they are not satisfied that it is necessary to make arrangements, there is a duty on the local authority to provide.

Although I take the challenge from my hon. Friend the Member for South Swindon to look at how we can try to find—as he puts it—the missing piece of jigsaw, I do not believe that this is the missing piece. In introducing the new education, health and care needs assessments and plans, we have made it clear that such assessments will be combined with social services assessments under section 17. The Children Act makes it clear that section 17 assessments may be combined with other assessments, including in relation to special educational needs.

As I have already said, the EHC needs assessment will be an holistic assessment of a young person’s education, health and social care needs. The purpose of that assessment is to identify not only the special education provision required but any health care and social care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs. In deciding whether to secure an EHC needs assessment, the local authority must consult the child’s parents or the young person. As the draft regulations indicate, where the local authority is conducting an EHC needs assessment they must seek advice where they consider it appropriate in relation to the social care needs of the child or young person.

Clause 28 already requires officers of the local authority who exercise the authority’s functions in relation to education and social services to co-operate. It will be for the local authority to carry out an assessment of the child’s or young person’s needs for social care services under section 17 and decide what services to provide and what action to take.

Councils are under a general duty to provide social care services for disabled children and young people. The education, health and care plan offers a co-ordinated approach to assessment for children and young people with SEN across their full range of needs, whether that is education, health or social care. I am well aware that under the status quo, too many children are left without the support that they need to reach their developmental targets and their full potential. I understand the rationale to create a specific duty for local authorities to provide social care services to children and young people where social care is included in their EHC plans. However, there is a large body of legislation in this area. There are duties on local authorities to meet the needs of children in need. Section 17 of the Children Act 1989 sets out that duty, which encompasses a wide range of needs and identifies disability as one of the three criteria for determining whether or not a child is to be regarded as “in need”. We need to improve the performance on the ground, the identification and the early help that is on offer from local authorities so that the service is improved in areas where it still falls short.

Robert Buckland (Conservative, South Swindon)

The Minister has been admirably frank about the precise extent to which the 1989 and 1970 Acts work. Does he agree that in the case of a particular type of provision—let us say an educational provision such as speech and language therapy—we must avoid the depressing scenario where, in a future judicial review case, a local authority is left to argue that the particular provision would not be covered by education but by some of the older statutory duties that are perhaps not quite as clear about the extent of duty to provide as the educational provisions. Does he agree that we need to avoid those artificial and unhelpful attempts by the local authority to minimise their obligations to children and young people?

Edward Timpson (Conservative, Crewe and Nantwich)

My hon. Friend is right in his analysis, which is why, in the case of speech and language therapy, we have been clear as to where the responsibility will lie in future, so that there can be no misunderstanding—to put it at its best—as to who should be delivering that service and held accountable for doing so. We need to recognise that under the duties in the Bill to co-operate and to undertake joint commissioning and by strengthening the complaints procedures we are providing a framework in which is greater joint responsibility for the delivery of education, health and care plans, as opposed to the existing statements. There is a large body of legislation out there, but we need to bring it into a form that leaves no room for manoeuvre, and then it is about how it is delivered. By including young people and parents throughout the process, we leave them in a better position to understand where responsibility lies, which is where the local offer will be of great help, and how they can challenge a decision, having established who is responsible and the what, why, when and how. The Bill, the code of practice and the indicative draft regulations provide the right approach to tackling such issues, without stymieing the local accountability that is important to ensure that services on the ground deliver for local people.

Social care for vulnerable children encompasses a wide range of needs, from disabilities to emotional and family problems, so we do not think it right to prioritise as a matter of course the needs of children with EHC plans over all other children in need. We have already discussed the draft Care and Support Bill, and the extra support that it will provide to young people aged over 18 who are eligible for adult social care and statutory care plans. That is a strengthening for those over 18 who will now fall under the SEN legislation. Both Bills include provisions to improve significantly the transition between children’s and adult social care, to avoid the cliff edge that we see far too often as children move from one system to another.

In a whole range of ways, there is not only a strengthening of the involvement of parents and young people in ensuring that they get the necessary provision, but a bringing together in the assessment process of the planning, the joint commissioning, the duty to co-operate and the local offer. Other elements of the Bill also have education, health and social care bound together holistically and more transparently than has been the case in the past.

To respond to the intention behind the amendment, the definition of a child in need in section 17 is deliberately wide. Decisions about whether a child is in need and what, if any, services to provide are for the authority’s social worker, who will consider all the relevant circumstances and the local eligibility criteria. Creating an individually owned duty under section 17 for one specific group of children—in this case, those assessed as needing special educational provision—has the potential to marginalise other groups of children, such as young carers, asylum-seeking children or children suffering neglect. Local authorities are best placed to make decisions on which services individual children need, based on local professional judgment and with regard to the resources available. The strength of the existing legal protections is sufficient to do that. Government amendments to the provisions on joint commissioning and EHC plans will also strengthen significantly the position of children with SEN who have health care needs.

Following the powerful contribution of my hon. Friend the Member for Romsey and Southampton North on her experience in her constituency and hearing about the experience of Henrietta Spink, I understand that the intention behind new clause 17 is to ensure that, when children or young people with an EHC plan move between local authorities, they continue to receive the provision set out in their plan where appropriate—to make it as portable as possible, as my hon. Friend put it. I completely agree that it is vital to get the transfer right. That is why we have included detailed provision in the indicative regulations. Regulation 3, paragraph 15, entitled “Transfer of EHC plans”, sets out in detail what should happen when a child or young person with an EHC plan moves to another local authority. I encourage my hon. Friend to look carefully at that. If she still has issues that she wants to raise, I will be content to take it up with her again so that it fulfils her objective.

The scenarios that my hon. Friend shared with us are ones that we do not want to see in future. That is the whole purpose of trying to set out in regulations how important it is for local authorities that are transferring responsibility for a child’s welfare, education, health and social care needs from one local authority to another to do so in a way that does not affect the child’s welfare in any way, shape or form. We are trying to address that and I am happy to continue to look at the matter so that we do not miss out on the opportunity of securing the right level of guidance for local authorities.

Sharon Hodgson (Labour, Washington and Sunderland West)

I, too, want to commend the hon. Member for Romsey and Southampton North for tabling the new clause and for the excellent speech that she gave in support of it. I have listened carefully to what the Minister has said. In the case of receiving local authorities, how can we ensure that there is some recourse for parents when they are faced with a local authority that is being resistant and obstructive in receiving the family that is trying to move to that new area, because of the cost implications? Where can parents go in those circumstances? What recourse do they have?

Edward Timpson (Conservative, Crewe and Nantwich)

If the hon. Lady looks at the indicative draft regulations, she will see that they say in paragraph 15:

“The old authority, within 15 working days beginning with the day on which it became aware of the move, shall transfer the EHC plan to the new authority...The new authority shall within 6 weeks of the date of the transfer notify the child’s parent or the young person informing him—

(a) that the EHC plan has been transferred;

(b) whether it proposes to make an EHC needs assessment”

and so on. There is a clear transition process set out in regulations that the local authority must follow. Complaints procedures are in place for parents if they feel that it is not being followed as it should be.

Again, I encourage the hon. Lady to consider what is in the draft regulations to ensure that they fulfil what we are all trying to achieve in improving the movement of any plan around the country, so that it does not get lost in bureaucracy or in ignorance of what should happen. It is incumbent on all of us to make sure that that takes place. As I said, I am happy to continue to look at that to make sure that we get it right. I hope I have reassured the Committee that we take seriously the points that have been raised, but we believe that we have reached a position in the legislation that best fulfils what we are seeking to achieve. I therefore urge hon. Members not to press their amendment and new clauses to a Division.

Clause 43 - Schools and other institutions named in EHC plan: duty to admit

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss new clause 7—

Edward Timpson (Conservative, Crewe and Nantwich)

I would like to speak first to clause 43 and then to proposed new clause 7.

Clause 43 ensures that where an institution for which a parent or young person can express a preference is named in an education, health and care plan—

Christopher Chope (Conservative, Christchurch)

Order. Just to clarify, I am not sure that new clause 7 is in the Minister’s name. I do not know whether he wants to adopt it, but he can speak to it.

Edward Timpson (Conservative, Crewe and Nantwich)

That was the intention, Mr Chope. I am grateful to you for making that crystal clear for all to hear.

As I say, clause 43 ensures that where an institution for which a parent or young person can express a preference is named in an education, health and care plan, that institution must admit the child or young person in question. The clause for the first time extends the duty to admit to children and young people aged nought to 25. The range of institutions for which a parent or young person can express a preference under the clause includes maintained schools, maintained nursery schools, academies, FE institutions, non-maintained special schools, approved independent special schools and independent specialist colleges. Schools and other providers will be consulted before being named in the child or young person’s plan.

I would now like to speak to proposed new clause 7, which was tabled by my hon. Friend the Member for Romsey and Southampton North. I thank her for raising this important issue. My hon. Friend the Member for New Forest East (Dr Lewis) has on a number of occasions impressed upon me the case for increasing the number of days a week spent in an FE college, on behalf of young people and their parents in his constituency. I agree that it is critical that young people aged 16 and over with special educational needs should receive provision that appropriately meets their needs. That is why the Bill is introducing a seamless system for young people aged up to 25, extending their rights and protections in the further education sector, all of which has been universally welcomed.

It should reassure my hon. Friend the Member for Romsey and Southampton North that our new system will ensure that young people receive the appropriate amount of education, training and support to meet their needs. Part of that is the new right to request that a particular college be named in their EHC plan. A local authority will meet that request, provided that it is suitable and represents an efficient use of resources. If a young person is not happy with the provision set out in the plan, they will of course have the new right to appeal their concerns at a tribunal.

Chapter 6 of the indicative code of practice states that in agreeing the content of a plan for young people in further education, local authorities may

“consider the need to provide a full package of provision and support—including for independent study—that covers five days a week where that is appropriate to meet the young person’s needs.”

Where appropriate, courses normally offered over three days may need to be spread over four or five days to enable the young person to maximise their ability to learn and reach the educational milestones we all want to see reached. There is sufficient funding available to support that longer period in each case, where required.

Of course, not all young people in further education want their learning spread over additional days, as it may not be in their best interests and may mark them out as different from their peers. There need to be sensible local answers available to ensure that decisions reflect individual student preferences as well as needs. Although I agree with the principle raised by my hon. Friend, I do not believe that prescribing an exact amount of time at a college will always be the most effective way forward for all young people.

Education, health and care plans are developed to set out the most appropriate provision in meeting the individual young person’s needs. The code of practice suggests the amount of time in college that may be appropriate and which the local authority should consider, but making the right provision available for each young person must be at the heart of the plan, which is made in consultation with parents and the young person themselves. Given those safeguards and assurances, I urge the hon. Lady to consider whether she wants to press her new clause to a vote, and I therefore propose that clause 43 stand part of the Bill.

Caroline Nokes (Conservative, Romsey and Southampton North)

I welcome the Minister’s comments about the way in which EHC plans will be tailored specifically to the needs of individual young people.

New clause 7 was tabled in my name and that of my hon. Friend the Member for New Forest East, who, as the Minister mentioned, has raised this issue many times. He has been largely provoked by an excellent organisation in the New Forest called SCARF—Supporting Special Children and their Relatives and Friends—which works very closely with Di Roberts, the principal of Brockenhurst college. Members may recall that Di gave evidence to the Committee, and I have been privileged to work with her on a number of issues.

Brockenhurst college serves my constituency and is regarded in Hampshire and in Dorset, which contains the Chairman’s constituency, as one of the best places to go if a 16 to 18-year-old has special educational needs. It is regarded widely in the county as the leader on the issue. The principals of Brockenhurst and other colleges, as well as some of my constituents, have raised a significant challenge highlighted not only by professionals in the FE sector but also by parents, which is that of the yawning chasm that arises when a young person turns 16. I will highlight one case from my constituency of a primary school head teacher whose son will turn 16 this year and leave full-time education in July. Despite excellent support from staff at his secondary school, the family has no certainty over where their son will go in September, because as it currently stands, there will be no educational provision that meets his need for the entire duration from Monday to Friday. A primary school head teacher—I hasten to add that he is male, because hon. Members will recognise the problem we have in recruiting male staff to primary schools and providing positive male role models—is seriously considering giving up work so that he can be available to look after his son when he is not in college.

Up until 16, parents have certainty that their child will be in a safe environment and suitably stimulated, educated and looked after for five days a week. Post-16, however, there is a yawning chasm. I welcome the Minister’s comments that the issue will be addressed. I welcome the extension of provision to 600 hours a week. I sincerely hope that the EHC plans can be sufficiently tailor-made to provide the additional supervision that young people with special educational needs might require. Di Roberts makes the point, fairly, that college students without special education needs can be left to their own devices quite happily with periods of private study in the library or in various quiet areas in the college. Unfortunately, however, young people with special educational needs may need extra assistance or supervision.

Andy Sawford (Labour, Corby)

These issues were strongly raised with me by the Corby autism support group, so I welcome the hon. Lady’s raising them today with the Minister.

Caroline Nokes (Conservative, Romsey and Southampton North)

I thank the hon. Gentleman for that contribution. The problems exist not only for children with learning difficulties but also for students with disabilities, who just need an extra bit of help. It is critically important that the EHC plans enable them to be in college for a suitable amount of time. The Minister is of course absolutely right that there will be those who do not want to be in education for five days a week and for whom that is not appropriate, but there will be those who need to be there for more than three days simply to allow their parents to get on with their lives. Those super-parents need to be able to carry on caring for the rest of their families, to carry on going out to work and living their lives without being absolutely terrified of the yawning chasm that approaches when their child or young person turns 16.

The Association of Colleges made the interesting comment that it had no objection in principle to educating young people with SEN for four days a week, but it was quick to point out that the funding and support has to follow.

Edward Timpson (Conservative, Crewe and Nantwich)

My hon. Friend is making a strong case for ensuring that all children who move through the education system get the appropriate support that they need—whether that is two, three, four or five days a week. Funding for high needs students was £585 million in 2011-12 and will be £639 million in 2013-14, so the funding is there to try to support the right amount of time that a young person needs for their education.

Caroline Nokes (Conservative, Romsey and Southampton North)

I thank the Minister for that intervention. I am coming to the close of my comments and I promise not to keep him too long on this point. Families of children with special educational needs cope, usually quite brilliantly, but in order to be able to keep on coping they need certainty, and they need to know that their young person is in a safe environment where he or she will receive appropriate support. These young people do not want to be nurse-maided by their parents or by their colleges, but their parents need to have the confidence to be able to go out and to get on with their lives without worrying whether those looking after the young people have the necessary support and whether the colleges are receiving funding¸ as the Minister has just indicated.

I know that my hon. Friend the Member for New Forest East has raised this matter many times with the Minister and I am sure he will do so again when the Bill reappears before the House, but I hope that the Minister’s reassurances will be enough to satisfy him. They have certainly been enough to satisfy me this morning.

Edward Timpson (Conservative, Crewe and Nantwich)

I am very grateful. This has been a helpful debate, and has clarified the support that the Government are giving.

Clause 44 - Reviews and re-assessments

Robert Buckland (Conservative, South Swindon)

I beg to move amendment 45, in clause 44, page 32, line 18, after ‘maintains’, insert ‘, or has ever maintained,’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss amendment 186, in clause 44, page 32, line 36, at end insert—

‘(b) about circumstances in which a local authority must or may review an EHC plan as a result of responsibility for all or part of a child or young person’s EHC plan being transferred between teams in a local authority.’

Robert Buckland (Conservative, South Swindon)

Amendment 45 relates to how we deal with young people who have fallen out of education but need to return to it. That does happen. Young people with autism take time out of education for a whole range of reasons. Sometimes they have health issues, such as underlying anxiety, or, in some cases, mental health problems that mean that they cannot access education. Sometimes—and this is really depressing—young people with autism are excluded from college, or, because of a lack of appropriate support in the college sector, they exclude themselves. Under the Bill as drafted, if that happens, those young people will lose the package of support that they have been receiving, so the question of support to get back into education is germane. How will those young people be supported back into education if the package ends?

My amendment tries to deal with that scenario. The words “has ever maintained” will deal with that problem in a simple way. I look to the Minister to address those issues, so that the good intentions of the Bill are not frustrated when it comes to the reality of life for the many young people with disabilities whose ability to access to education fluctuates according to their needs.

Amendment 186 seeks to ensure that the Bill is as clear as possible about the regulations relating to reviews and reassessments of EHC plans. In particular, it addresses the issue of transition. We have heard much about the cliff edge; we all know it is there. Rather than just talking about it, we need to make sure that action is taken. We should ask: why is it there? So often it is because, however well intentioned the departments in a local authority are, there is not enough synthesis between them at the key moment of transition. For example, children’s services in my borough are brought together in a co-ordinated way by local health providers and the local authority, and that works extremely well. My local authority is now making concerted attempts to ensure that there is a crossover early in young people’s lives, and that discussions are held and plans are made by children’s and adult services. They should not wait until the age of 16; the work can start at 15, 14, or even earlier in some cases.

Amendment 186 goes to the heart of that point. It sets out the issue of the transfer of responsibility between teams in a local authority. It will, in my submission, help to focus the minds of those drafting the regulations, and put those issues beyond any doubt. Where there are examples of bad practice, the regulations can deal with them, and authorities that are somewhat behind the times can be exhorted to ensure that early work goes on, so that we do not end up with difficulties at transition. That is the purpose of amendment 186. I look forward to hearing from the Minister.

Edward Timpson (Conservative, Crewe and Nantwich)

First, I shall speak to amendment 45. My hon. Friend spoke about the importance of ensuring that it is as straightforward as possible for young people with special educational needs aged 16 to 25 who are not in education, employment or training to re-enter education, where it is appropriate for them to do so. Where they already have an education, health and care plan, it is sensible that that is used as the starting point for considering further support. Local authorities must maintain the plans of young people aged 16 or 17 who drop out of education or training while still subject to compulsory participation, and must seek to re-engage them in education or training as soon as possible.

Where a young person is past the requirements of compulsory education, is over 18, and is not in education, training or employment, local authorities must review their plan. They must consult the young person and decide whether it is in their best interests to remain in formal education or training. In reaching that decision, local authorities must consider whether further time is needed for the young person to complete or consolidate their learning and to prepare them for adulthood. If the review determines that the young person wants to complete their learning, and that re-engaging them in education or training is in their best interests, the local authority should maintain that person’s plan and find them a suitable placement as soon as possible. Importantly, there would be no need for a reassessment in either of those circumstances.

It is right to say that where a young person has left education for employment or another destination and later seeks to return to education, that warrants a new assessment for an EHC plan, if one is requested, rather than a reassessment. Young people in such circumstances generally will have completed their formal education and transitioned to adulthood. Local authorities will need to consider carefully with the young person whether returning to formal education is the right thing for them to do. It is entirely possible for local authorities to draw on earlier assessments and plans if that would help inform the new assessment process. I will look carefully at how we ensure that that is made clear in the code of practice and the regulations.

Further information on what local authorities need to do for young people who become NEET and want to re-enter education is set out in regulation 17 of the draft regulations on assessment and planning, and in paragraph 6.15 of the indicative code of practice. As ever, as those documents are still in draft form, I will endeavour to ensure that they achieve what we have set out to achieve. I hope that I have reassured my hon. Friend that the Bill, the draft regulations and the code of practice are clear that reviews and assessments should be carried out for young people with special education needs who become NEET, so I ask him to withdraw his amendment.

On amendment 186, which my hon. Friend also asked me to consider, I agree that, when some or all of the elements of an EHC plan are transferred between teams within a local authority, that is a sensible time to review the plan. That is most likely to be when young people are transferring from school to further education, or from children’s to adult social care services.

The Bill already contains regulation-making powers for when reviews must or may take place, and we have used that to provide further details in the corresponding draft regulations and the indicative code of practice. Regulation 19(5) of the indicative regulations is clear that when a young person is likely to leave education within the next two years, the review should consider the support they need to prepare them to make that transition. I hope that later versions of the code will also contain additional information on the specific transition between children’s and adult social care services that my hon. Friend identified.

We will continue to learn from the 20 pathfinders about best practice and assessing and reviewing education, health and care plans. If that work indicates that we need to be more explicit about when reviews of plans must take place, we will include additional guidance in the code of practice. I hope that reassures my hon. Friend that his points are being addressed, and that education, health and care plans will be reviewed regularly and at all appropriate points, including when young people move between different local authorities. We will continue to use the pathfinders to inform our development of the code. On that basis, I urge him to withdraw his amendment.

Robert Buckland (Conservative, South Swindon)

I am very grateful to my hon. Friend. It is quite clear that the purpose of the amendments is being met. He rightly refers to the indicative draft, and he has once again reassured me that it is a work in progress that will be further refined as we get to a final position. On that basis, I beg to ask leave to withdraw the amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 137, in clause 44, page 32, line 29, at end insert ‘and prior educational outcomes’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 138, in clause 44, page 32, line 31, after ‘child’, insert

‘, the child themselves where appropriate,’.

Amendment 142, in clause 45, page 33, line 20, at end insert ‘and prior educational outcomes’.

Sharon Hodgson (Labour, Washington and Sunderland West)

I will not detain the Committee long on these amendments, as they echo others that I introduced earlier. We debated amendments similar to amendments 137 and 142 at the end of the last sitting, and the Minister assured me, and the hon. Member for South Swindon, that the Bill would not allow local authorities to use a young person’s age—we are particularly concerned with young people aged 18 to 25 here—as the basis for cutting short their education before they had achieved reasonable goals or outcomes.

I recognise that the draft regulations include a specific reference to outcomes with regard to reviewing a plan, although not with regard to ceasing one, but I would like to test the Minister a little further. At many points in the regulations, the local authority has leeway to cease a plan if a young person is over 18 and wishes to return to education. In such cases, the local authority is allowed to judge whether it thinks ceasing the plan would be appropriate. That leaves it open to it to make a decision based purely on age. If the Minister is not minded to accept these amendments, I would be grateful if he looked again at the regulations to ensure that they are as watertight as they can be, with regard to ensuring that young people are given all the education and training that they need, while they still want it.

Amendment 138 would give children a right to request a reassessment for themselves. That might be necessary in only a handful of cases that I described in previous debates—for example, where the parent does not have the inclination, capacity, or the level of engagement with their child’s development and education that we might expect. These are not the super-parents that we often refer to. I see no good reason why a child in such a situation should not have their request listened to because they have not reached a certain age.

We will discuss allowing children to launch their own appeal cases, in pilot schemes, later in the Bill. That is welcome. It would be consistent with that direction of travel to make this improvement to children’s right to be heard and to self-determination by making this change to the clause. I hope that the Minister agrees. I suspect that he will not take the amendment on, but I hope that he will at least think on it between now and the Lords stages.

Edward Timpson (Conservative, Crewe and Nantwich)

Amendments 137 and 142 are about the importance of educational outcomes. I agree with the hon. Lady that it is important to ensure that the achievement of educational outcomes is integral to decisions about reviewing, reassessing or continuing education, health and care plans. That is important for everyone, not just young people aged 18 or over. The decision should not be based on the young person’s age alone. That is why it is clear throughout the Bill that supporting children and young people to achieve outcomes is of primary importance—a point urged on us by Opposition Front Benchers on Second Reading.

We want the clause to prompt local authorities, once a young person is aged over 18 and is no longer subject to compulsory participation in education or training, to take a thorough look at whether outcomes have been achieved and the young person has made a successful transition to adulthood. Where that is not so, and the young person wants to remain in education and needs more time to achieve their outcomes, the local authority must maintain the EHC plan. The relevant regulation in the draft plan assessment regulations sets out that, when undertaking reviews, local authorities must consider the child or young person’s progress towards achieving the outcomes specified in the EHC plan, and whether those outcomes remain appropriate for the child or young person. Paragraph 6.15 of the indicative code of practice provides further detail on considering whether outcomes have been achieved when carrying out reviews and assessments.

Clause 45(3) already requires local authorities to have regard to whether the educational outcomes specified in a plan have been achieved when they are considering whether to cease maintaining a plan. Again, this is for everyone, not just young people aged 18 or over. The indicative code of practice provides further detail on that in paragraphs 6.17 and 6.18. I am happy to take up the hon. Lady’s suggestion that I look at that carefully, to establish that it is providing the right level of detail on how—

Christopher Chope (Conservative, Christchurch)

I remind the Committee that with this we are discussing the following:

Amendment 138, in clause 44, page 32, line 31, after ‘child’, insert

‘, the child themselves where appropriate,’.

Amendment 142, in clause 45, page 33, line 20, at end insert ‘and prior educational outcomes’.

Edward Timpson (Conservative, Crewe and Nantwich)

To deal briefly with amendment 138, I wholeheartedly agree with the hon. Member for Washington and Sunderland West that it is hugely important to involve children appropriately in decisions regarding their lives. That is why clause 19 sets out the principle that the local authority should have regard to the views, wishes and feelings of children and to the importance of children participating as fully as possible in decisions. The legal responsibility for children under 16 rightly remains with parents, however. Clarity about whom the local authority formally consults during reviews and reassessments is important. I hope that the clear and proper importance we are placing on outcomes and the appropriate consideration of the views, wishes and feelings of children throughout the Bill and elsewhere comforts the hon. Lady. I urge her to withdraw the amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

With that reassurance from the Minister, I beg to ask leave to withdraw my amendment.

Clause 45 - Ceasing to maintain an EHC plan

Robert Buckland (Conservative, South Swindon)

I beg to move amendment 46, in clause 45, page 33, line 5, leave out from ‘authority’ to end of line 6 and insert

‘must maintain an EHC plan for a child or young person up to their 25th birthday unless’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 38, in clause 45, page 33, line 18, leave out subsection (4) and insert—

‘(4) A local authority may only cease to maintain an EHC Plan if—

(a) the authority has completed a transition review meeting with the child or young person and their family, at which there is agreement from all parties that the specified outcomes to the EHC plan have been achieved; and

(b) a transition plan has been completed in partnership with the child or young person and their family and other agencies, which supports their progression into the next phase, including higher education or employment.’.

Amendment 210, in clause 45, page 33, line 18, leave out subsection (4) and insert—

‘(4) In determining whether it is no longer necessary of an EHC Plan to be maintained for a young person aged over 18, a local authority must have regard to the young person’s right to the continuation of an EHC Plan up to the age of 25 and access education provision in an age-appropriate setting.’.

Amendment 39, in clause 45, page 33, line 35, at end insert—

‘(d) the procedure to be followed for transition review meetings and transition plan development.’.

Robert Buckland (Conservative, South Swindon)

The clause relates to when an education, health and care plan is no longer maintained. The subject of amendment 46—the expectation of the extension of EHC plans for children and young people until the age of 25—at very least needs proper debate. The sector understands that the extension is not a blanket approach that will automatically cover everybody who is not covered at the moment, but it is important to send a clear message, not only to those responsible for provision but to the young people and families themselves, that there is an obligation on those authorities that have made plans to maintain them unless certain circumstances, outlined in clause 45(1)(a) and (b), apply.

The amendment is not an attempt to seal EHC plans as tablets of stone; local authorities will still have discretion to cease to maintain them if, for example, they are no longer responsible for that young person, or they determine that it is no longer necessary to maintain the plan. A greater degree of clarity in the wording would help to meet expectations and lead to greater understanding of the provisions.

Amendments 38 and 39 relate to the process of ceasing a plan. Current regulations require local authorities to use the annual review meeting when a young person is in year 9 to create a transition plan and to review it as part of future annual reviews. The indicative draft code and regulations remove that requirement. Does my hon. Friend the Minister agree that, although transition must be central to the planning and reviewing of support for young people, the current requirements provide a useful tool for families to prompt local authorities to plan in the way we have outlined, or to start working on the transition at the earlier stage, if they have failed to do so? Does he also agree that the focus of this part of the Bill is on securing improved outcomes for young people with special educational needs and that the step between leaving education and getting those outcomes is crucial? So that people do not fall at the final hurdle, the local authority should be under a duty to support people in that phase; otherwise, the work done prior to that point will have been in vain.

I am trying to find a new phrase to replace cliff edges. Precipices? Voids? Gaps? We know what we are talking about.

Graham Jones (Labour, Hyndburn)

Crevasse?

Robert Buckland (Conservative, South Swindon)

I like it. I will adopt that. I said on Second Reading that we are all aware of the danger of moving the edge from 19 to 25. The importance of reviewing support before ceasing an EHC plan is self-evident: it is an opportunity for everyone maturely to consider the situation, and only after a review should a decision to cease a plan be made. Amendment 38 is all about ensuring that there is a proper meeting with the child or young person and their family and an agreement that the plan’s specified outcomes have been achieved, so that there is a sense of completion and progression before the final decision to cease the plan is made.

To achieve that, the Bill would require only a small amendment, as I have outlined. It would not place an undue burden to the local authority but would entrench best practice in fulfilling the aim of ensuring that service users—the young people themselves—are involved in every step of the decision-making process.

Before I leave amendments 38 and 39, let me remind the Committee of a possible real-life scenario. A 24-year-old man with autism has limited cognitive ability but enjoys a quality of life in a placement some miles from his home. He perhaps does not understand why he cannot be with his parents, but he is clearly in a place where he gets support. Bearing in mind that anxiety and a lack of well-being can often be key symptoms of autism, surely it is important to ensure that the young man and his family are very much involved in the decision making and that the next steps are explained to them as clearly as possible. In the lives of people with autism, what happens next is often of overwhelming importance and can drown out any enjoyment of the present. Uncertainty about what happens next is something that people with autism live with every day.

Amendment 210 supplements the proposals I have already outlined. It exhorts local authorities to have regard to a young person’s right to the continuation of a plan up to the age of 25, entrenching what I would regard as a best practice consideration for local authorities making such important decisions. Let us not forget that by the time a young person reaches the age of 24 or 25, they might well have been the subject of a plan for many years. It will have been part of the furniture of their life and the lives of their families and carers, so the decision to cease must be taken as carefully, transparently and fairly as possible. It is in that vein that I advance the amendments.

Edward Timpson (Conservative, Crewe and Nantwich)

I share my hon. Friend’s desire to ensure that local authorities do not cease an EHC plan simply because the person is aged over 18, or without ensuring that they have made a successful transition to adulthood. As I stated previously, I also completely agree that planning for transition is of paramount importance for young people approaching the end of their time in formal education or training. We all recognise that the current system does not do that well, and I want to ensure that our reforms improve significantly the longer-term outcomes for young people with special educational needs.

Regulation 18 of the draft regulations, along with section 6.15 of the indicative code of practice, makes it clear that when reviewing an EHC plan local authorities must, in consultation with the young person, consider carefully whether or not they have achieved their outcomes and successfully completed their time in formal education. As part of that review, local authorities should also consider whether the young person wants to remain in education, as they will no longer be subject to compulsory participation. If the young person has not achieved their outcomes, wants to remain in education and still requires special educational provision to be made for them, the local authority must maintain their EHC plan.

We are not adopting the blanket approach my hon. Friend described. We are not creating a statutory entitlement to education until the age of 25 for young people with SEN—the Select Committee on Education asked us to clarify that point—because doing so would not be in the best interests of many young people with SEN who, like their peers, want to complete their education and progress into adult life and work. That is why it is vital that EHC plans are outcome focused and set out clear plans for how children and young people are supported through education and into adulthood.

My hon. Friend will see that we have made that clear in the draft regulations. Regulation 19(5) will ensure that when the child or young person is expected to leave education within the following two years, the regular review of the EHC plan will consider what provision is required to assist in preparing them for adulthood and independent living. Local authorities will have to set that out in the plan, along with the related agreed outcomes, and consider whether those outcomes have been met before they can cease to maintain the plan. Transition planning is therefore already an integral part of the EHC plan process. That has the added advantage of ensuring that young people retain all their rights and protections as they access the provision and support that will help to prepare them for adulthood. Furthermore, the local authority will continue to have statutory responsibility for maintaining the plan and for securing the special educational provision specified in it.

I will, however, look at the wording in the code mentioned by my hon. Friend to ensure that transition is as strongly focused as it can be on achieving and building on the good outcomes that we all want for young people. I hope that he is reassured that the plans will provide a clear transition for young people who are coming to the end of their formal education and that those who need to remain in education over the age of can do so. I therefore urge him to withdraw his amendment.

Robert Buckland (Conservative, South Swindon)

I am grateful to my hon. Friend for his response to my probing amendments. As he has conceded in other respects, the indicative draft regulations are still a work in progress. The code of practice will be key to ensuring that all local authorities adopt a common approach to making such important decisions. I look forward to seeing further work done on that important document, and I will continue to work with him to ensure that the best outcome is reached in relation to such decisions. On that basis, I beg to ask to leave to withdraw my amendment.

Clause 46 - Maintaining an EHC plan after young person’s 25th birthday

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 217, in clause 46, page 33, line 41, at end add—

‘(3) Where a young person is completing a programme of study, supported internship or apprenticeship which does not conform to academic years, a local authority may continue to maintain an EHC plan for that young person until the end of that programme where this programme has been commenced by mutual consent of—

(a) the young person;

(b) the local authority; and

(c) any health bodies contributing to support delivered by virtue of the young person’s EHC plan.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss new clause 24—Inclusion: apprenticeships—

‘(1) The Apprenticeships, Skills, Children and Learning Act 2009 is amended as follows:

(2) After section 12(2) insert new subsection—

“(2A) The requirements specified should not adversely affect the participation of young people with special educational needs or disabilities in apprenticeship schemes, if they are able to perform at the prescribed occupational standard required by the apprenticeship framework.”.’.

Sharon Hodgson (Labour, Washington and Sunderland West)

As the Minister will know, the Opposition welcome the increase in the age limit for education, health and care plans to 25. We believe that 25 is the right age at which local authorities should aim to have prepared a young person for the next stage of their life, whatever that may be.

I recognise that the clause does not state that that support will be guillotined on the young person’s 25th birthday, which might be in the middle of an academic year in which they are still studying, and I welcome the fact that that is not in the Bill. I heard from one independent residential special college, where severely disabled pupils are placed, whose local authority tried to cut all funding as soon as pupils turned 18, with no regard to whether their goals had been achieved, they were ready to leave, or their family was ready to have them back full-time. Amendment 217 would simply provide a further caveat in that spirit. It would allow local authorities that extra bit of flexibility in determining the end point of the educational support that they provide to a young person. If it were accepted, it might be invoked only a handful of times a year, but it would allow greater emphasis on the needs of the young person, rather than a bureaucratic structure that may hold back some local authorities from going above and beyond to help a young person achieve their goals.

Not all programmes conform to academic years and not all supported internships may do so in the future. The point of the amendment is simply to say to local authorities, “We don’t want to limit you to one arbitrary date or another. If, within reason, you think course x is going to be valuable to this young person, and you’re happy to support them in that until its completion, then you are free to do that.” I may be straying dangerously close to localism in saying that, but I hope the Minister will consider the amendment. If he does not feel he can adopt it at this point, I hope he will assure me that he will give some thought to how we can make the termination of plans better fit the circumstances and wishes of the young person in question and their local authority.

New clause 24 would amend the Apprenticeships, Skills, Children and Learning Act 2009, which you will remember, Mr Chope, as we served together on the Bill Committee, which famously sat through the night in 2009. The new clause would ensure that apprenticeship frameworks do not adversely affect the ability of young people to access apprenticeship opportunities, provided that they have the capabilities required to do so. One of the Government’s goals in this part of the Bill is to support the preparation of young people to live independently and to gain employment where possible. The Opposition share that goal. One excellent way of achieving that for many young people is through apprenticeships that are valued and recognised by employers.

Since 2009, the number of young people with SEN enrolling in apprenticeships has decreased substantially. The Little review found that the proportion of young people with learning difficulties and disabilities undertaking an apprenticeship fell from 11.1% to 8% between 2005-06 and 2010-11. Peter Little’s report specifically recommended that the completion criteria for English and maths skills should not be made more stringent, lest the problem be exacerbated. The Government rejected that recommendation and others, such as that tests should conform to the requirements of the Equality Act 2010 and that one-to-one support should be available for those apprentices with learning difficulties or disabilities who require it. The Government committed to a raft of best practice sharing and guideline reviews with regard to other recommendations, but, to the best of my knowledge, they did not commit to any firm action off the back of the report to make apprenticeships more inclusive or to allow more young people with learning difficulties to access them.

If a young person with special educational needs can, at the end of their apprenticeship, complete all the practical elements that they are supposed to have learned and have mastered the paperwork involved to the degree that would be expected of them in the trade they wish to enter, surely they have successfully completed the apprenticeship and all the necessary certificates and payments can be given out? If they have to complete numeracy and literacy tests, should not reasonable adjustments be made to those tests? It is not about making it easier for those young people; they should be judged by the same standards as their peers in fitting a boiler or building a wall, but there must be some leeway on the written examinations to take account of the unique challenges they face.

As I mentioned, the Government committed to a number of measures as a result of the Little review, and I would be grateful if the Minister gave us a summary of what has been achieved. I also hope that he will give the amendment some thought, given that apprenticeships are such an important part of the post-16 mix and particularly given the goals expressed in this part of the Bill to ensure that young people with SEN are able to get the support and qualifications they need to strike out on their own as an adult in the workplace.

Edward Timpson (Conservative, Crewe and Nantwich)

Over and above the hon. Lady’s endorsement for localism, which I suspect was slightly tongue in cheek—it was none the less welcome—this debate has provided an opportunity for us to focus on the important issue of how we ensure that young people with a special educational need can benefit from the quality learning contained within apprenticeships and other work-based programmes.

In amendment 217, I understand that the hon. Lady’s intention is similar to that behind clause 26. In cases where a young person with an education, health and care plan turns 25 and is still in education, it is helpful if local authorities have some flexibility to maintain their plan until the end of the academic year. I would be concerned about introducing an amendment that takes us much further beyond that point, but I appreciate that the hon. Lady is trying to be helpful, and I want to be helpful to her, too. The definition of “academic year” in clause 46(2) gives us some flexibility to adjust the matter by regulation. I am happy to assure the hon. Lady that, when we come to make those regulations, we will look at the range of programmes of study that a young person may undertake and consider whether we can define the academic year flexibly for different purposes to try to accommodate the scenarios that she has rightly highlighted.

New clause 24 would amend the Apprenticeships, Skills, Children and Learning Act 2009 to specify that the requirements of an apprenticeship framework should not adversely affect the participation of young people with special educational needs or disabilities, where they are able to perform to the required standard. That is, of course, already the case. Young people with SEN or disabilities can undertake an apprenticeship where they meet the required standard, and the apprenticeship “offer” in the Education Act 2011 ensures that their training will be funded as a priority when they have found a place. None the less, there are concerns about the levels of participation and success among this group of young people. We are working hard, and with some success, to widen access and remove barriers to entry. In the 2011-12 academic year, there were 40,130 apprenticeship starts by learners with a learning difficulty or disability, 12,630 of which went to learners aged between 19 to 24, which is up 10.4% on the previous year and by 23.8% on 2009-10 figures.

In 2010-11, the National Apprenticeship Service and the Skills Funding Agency funded 16 pilots across the country to test new methods for engaging individuals from under-represented groups in apprenticeships. Half of those pilots were focused on disability and led to some helpful new initiatives, including: tailored information, advice and guidance to map apprenticeships to jobs, which we all want to see; preparation training for young people who have been unsuccessful in their applications for apprenticeships to give them additional support to improve their prospects of success on future applications; and new guidance for providers to encourage recruitment policies in skills training and apprenticeships, which promotes equality and diversity, particularly for those with a disability.

We have also responded positively to a number of the recommendations contained in Peter Little’s review “Creating an Inclusive Apprenticeship Offer” to which the hon. Lady referred. In particular, the redefined offer prioritising funding for disabled apprentices up to the age of 24 will come into effect in April 2013. The National Apprenticeship Service is exploring whether the two ticks scheme can be used within the apprenticeship vacancies online service, and we are improving how we record data for young people with special educational needs and disabilities. Of course we need to continue to look to see where we can do more.

For young people with SEN who are not able to secure a place on an apprenticeship, we are developing traineeships and supported internships. I hope that the range of activity and the increased options available to young people with special educational needs or disability, coupled with the approach that we have taken to apprenticeships within the EHC plan structure, reassure the hon. Lady that progress is being made and that we have an ongoing commitment to apprenticeships for young people with special educational needs. I take on board all the valid points that she has made and I urge her to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I thank the Minister for the clarification he has given the Committee this afternoon. Hopefully, all young people with SEN who are looking to apply for an apprenticeship will be reassured as well. It is pleasing to hear that the numbers are on the increase, and I hope that trend will continue. With the reassurances that I have received, I beg to ask leave to withdraw the amendment.

Clause 48 - Personal budgets

Caroline Nokes (Conservative, Romsey and Southampton North)

I beg to move amendment 223, in clause 48, page 34, line 39, at end insert—

‘(k) a local authority must offer the support of a dedicated key worker to a child or young person for whom it prepares a personal budget.’.

I confess, Mr Chope, that I was not expecting the amendment to come under this clause, and I do not have with me the piece of paper that tells me what the amendment is on. I wonder whether one of my colleagues would remind me. [Interruption.] Ah, yes. One of the problems for young people who have special educational needs is that they often feel as though they are pushed from pillar to post, and what they require is the assistance and support of one identified person. Parents have raised with me the point that although personal budgets can bring freedom for them, they are concerned about how they will cope with the additional responsibility of managing a personal budget if they do not have a dedicated person to assist them with the preparation of that budget and to help them learn how to manage it. At the moment, 25% of local authorities provide key workers to help with that process, but that means that 75% do not.

Through the amendment, I am trying better to understand the Government’s thinking on the level of support that will be available for parents and other carers on the management of personal budgets. I know from constituency experience that that can come across as an enormous hurdle. In addition to the practical challenges of managing a budget, there is almost a cultural barrier, in that the sheer prospect of preparing and working through a budget can be a daunting deterrent. How does the Minister envisage the support working to ensure that personal budgets do not become too much of a burden on parents?

Edward Timpson (Conservative, Crewe and Nantwich)

In the amendment, my hon. Friend has quite rightly recognised the legitimate concern of parents in her constituency that families and young people may not have the knowledge and confidence required to manage a personal budget without independent help and support. That is why our policy statement on personal budgets makes clear our intention that regulations under clause 48 will require local authorities to provide information, advice and support in relation to the take-up and management of personal budgets, including information about independent organisations that may be able to provide advice and assistance. That is in addition to the general requirement, in the indicative regulations under clause 36, on local authorities to provide any support that they consider necessary for parents or young people to take part effectively in the EHC needs assessment. Those requirements are also clearly set out in the draft code of practice.

We are wary of specifying support in the Bill, because that would require a definition, in some detail, of what a dedicated key worker actually does. That might constrain local models of provision, which have developed to take on a whole range of guises, and which come at different points of the system. In particular, we must take into consideration the suitability of some voluntary and community sector services to provide on behalf of the local authority. We are testing several models of personal budgets, not all of which will require key working support.

Be that as it may, we are very much aware of the importance of key workers in supporting families. I have met a number of parents who have children with special educational needs, and they have made abundantly clear how important key workers have been in enabling them to navigate the system, and the importance for them of being able to call on such support when they required it. That is even more the case for families with children who have the most complex needs, who need to be able to take advantage of these reforms, including the personal budgets. In drawing up regulations under clause 48, we will look carefully at feedback from the pathfinders and the findings of the formal evaluation of the pilot scheme, which will examine, among other issues, the views of families and young people on the support that they have received in connection with personal budgets. In the context of that, we will also consider whether we need to put any further specific guidance in the code of practice to support the availability of key workers.

In addition, as I mentioned in an earlier sitting, pathfinders have successfully developed targeted independent navigators to help families with more complex needs through the whole new system. We will look at ways to make those and one-stop shops more readily available across the country, particularly at crucial entry and transition points in the system. I am happy to continue to discuss that with my hon. Friend as we develop our thinking and understanding in this area. With those assurances, and with the re-emphasis on the importance of key workers in implementing the reforms, I hope that my hon. Friend will feel able to withdraw her amendment.

Caroline Nokes (Conservative, Romsey and Southampton North)

I am particularly pleased to hear the Minister use the term “one-stop shop”, because one of the enormous barriers for families is that there seem to be too many agencies and too many people that they have to enrol with. Given that he says that the point will be set out clearly in regulations, and that there will be pathfinder projects, I am happy to beg to ask leave to withdraw the amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 143, in clause 48, page 35, line 3, at end add—

‘(6) This section will not have effect until an Order is made by the Secretary of State, subject to affirmative resolution by both Houses of Parliament.

(7) Before making an Order under subsection (6), the Secretary of State must lay a copy of a report before both Houses of Parliament detailing findings from the pathfinder authorities established under the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012, including but not limited to—

(a) the impact on educational outcomes for children and young people;

(b) the quality of provision received by children and young people;

(c) the value for money achieved;

(d) the impact on services provided for children and young people without EHC plans, or those for whom direct payments were not made.

(8) The Secretary of State may not prepare a report under subsection (7) until September 2014.

(9) An Order made under subsection (6) may amend this section as the Secretary of State deems necessary to ensure the effective operation of personal budgets, having had regard to the finding of the report produced by virtue of subsection (7).’.

From day one—since the Bill was a Green Paper—I have offered the Government qualified support for personal budgets. As a parent of a son who, as Committee members have heard, had a statement for severe dyslexia, I would have welcomed the opportunity to find appropriate specialist support for him and have that funded. As it happened, I eventually found him specialist support—although unfortunately I had to pay for it out of my own pocket—to help him get through his GCSEs, which he did. I am pleased to say that he achieved all Cs, including in English. If I had been told, when he was nine and first statemented, that he would get a C in English GCSE, I would have sung “Hallelujah!”, as I did when he achieved it. The money was well worth it.

Many other parents will have had similar experiences to mine, and will like the idea. That is why we supported the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2011, in spite of the many concerns expressed in response to the Green Paper. People were rightly concerned, and felt that provision for children whose parents do not want to manage their own budgets should not be adversely affected, and that there should be sufficient independent, good quality advice out there for all parents. I sought and was given reassurances on those points by the Minister’s predecessor when the 2011 order was debated. The problem is that, 15 months later, we are discussing the enabling legislation but we still have no firm understanding of how devolving budgets will work practically. The pilots took a long time to get off the ground, according to the anecdotal evidence that I have from around the country, and when they got going, the volume of cases in which direct payments were made was small, and the scope of those payments was limited.

I received an e-mail last week from a parent in one of the pilot areas, saying that after threatening judicial review, she was finally given direct payments—this was in one of the review areas—but the professionals she then commissioned to provide the support her son needs have yet to be paid by the local authority. I think it was for this reason that the Minister extended the pilots for another 18 months, which was sensible.

We are scrutinising a clause that has so many potential ramifications, in terms of how local services are structured and funded, without a good idea of what might actually happen. We need to be confident that the effect of the clause will not be that the quality of provision will fall. We need to be confident that, in these times of huge cuts to local authorities, with probably more to come in the comprehensive spending review, the effect of the clause will not be increased costs caused by the fragmentation of budgets and loss of economies of scale. The Minister will also be aware of concerns that schools and colleges have about their funding, allied to that. We also need to be confident that the effect of the clause will not be the emergence of a new kind of ambulance-chaser—a wave of brokers popping up offering the world to families if they will sign over their budget to them. Providers need to be accountable in more ways than just the age-old market way of people voting with their feet.

I am not confident at the moment, and I do not think that the Minister is confident either, hence the extension of the pilot schemes until the back end of next year. Given that we are not confident, the amendment in my name and that of my hon. Friend the Member for Wigan is intended to ensure that the section, as it will become, will not commence until we are confident—that is to say, after the end of that extended pilot period, and after the evaluation that the Government have commissioned has addressed the fears I have outlined.

The clause represents a key plank of the Government’s reforms, and we do not want to vote against it. When those evaluations are in, and are positive, I will happily support the order that the Secretary of State will need to make if my amendment is agreed to. We just want to be sure that this is the right thing to do, before it becomes law and is rolled out across the country. I hope that the Minister will accept the amendment in the spirit in which it was tabled.

Edward Timpson (Conservative, Crewe and Nantwich)

Again, I thank the hon. Lady for her support, albeit qualified; I understand why she is not free-flowing in her endorsement. I am sure that her agreement that this is a sound principle to take forward is partly influenced by the evidence that has come from the piloting of individual budgets for disabled children. The families taking part reported back that they had an increased sense of choice and control over the services that they were using—for instance, around improved access to social care—greater satisfaction with the services that they received, and a shift in the type of services that they used, including a greater use of community resources, so there is already a sound evidence base with which we are taking this proposal forward.

I recognise the genuine concerns that the hon. Lady has about this innovative approach, and those concerns are reflected in the amendment. Of course, it is imperative that we get this right. That is why our policy statement shows that the regulations about personal budgets will include the important safeguards currently set out in the pilot scheme, including a need for local authorities to consider value-for-money issues—a matter she raised—and the impact of direct payments on other service users.

I want to reassure the Committee, if I can, that we will continue to develop the regulations as the Bill progresses through Parliament, taking account of the implementation lessons of the pilot scheme, building on the strengths and approaches that we know work well, and addressing any issues that may arise. We are also considering whether we need to amend the clause in light of the amendments to impose a duty on health commissioners, and we will bring forward an amendment on Report if necessary to reflect just that.

In doing so, we will also draw on the findings of the formal evaluation of the pilot scheme, which the hon. Lady has told us about. It has been commissioned as a discrete element of the evaluation of the SEN pathfinder programme, and it will meet the commitment that we gave to the other place and to the Committee to evaluate the pilot scheme. That evaluation will be available in May, before the Bill passes on to the other place; that will give the Commons an opportunity to consider that element of the evidence.

The evaluation is focusing on the development processes and challenges involved in setting up direct payments for special education provision, and it will provide an evidence base covering the level of demand from families, the practicalities of introduction and the implications for wider provision. These issues and others are reflected in chapter 6 of the interim pathfinder evaluation report, which was published in October last year. It set out the initial findings in relation to the start-up work being undertaken by local authorities named in the order.

The report in May will provide a full update on the progress made in implementing the pilot scheme. To do that, it will draw on a series of in-depth consultations with families, allowing us to understand better their experience of the SEN direct payment processes, and their views on the support that they received and the difference that the use of direct payments has made towards achieving their desired outcomes. The report will capture the work of a group of accelerated pathfinders, established and supported by the Department, working with its delivery partners, to speed up the in-depth testing of the use of direct payments for special educational provision. Learning and case studies from that group of local authorities will also be made publicly available through the pathfinder website.

The hon. Lady reminded us of the extension that I gave to the pathfinder pilots. Of course, that is not just in relation to personal budgets; that is right across the spectrum of activity taking place in pathfinders, including activity around assessment and the planning of the local offer.

It is important that we continue to learn from those experiences. For example, in relation to understanding the powerful difference that a direct payment can make, we already know from one of the pathfinders of a young person of college age who is wheelchair-dependent and who struggled to get to college unaccompanied to study for their A-levels. Although they had a personal assistant, that assistance only related to the time when they were at school, so they attended school only one day a week on average. The local authority education department agreed to a direct payment for a personal assistant managed by the family, to support the young person in getting to and from school. That is a good example of how we know personal budgets, through one form of direct payments, can make a huge difference; that young person now attends college four days a week.

I reassure the Committee of our commitment to take full account of the findings of the evaluation report and the ongoing work of the pathfinders when developing regulations made under this clause and the code of practice. I hope that I have reassured the hon. Lady that there will be a full evaluation of the direct payments pilot scheme before direct payments are introduced under the Bill, and that she feels able to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

The amendment is very important. I listened carefully to the Minister, and I welcome his commitment to tabling amendments on Report. Even with his reassurances about consultation at the end of the pilots, I am disappointed that he has not taken on board the amendment to ensure that we do not make bad legislation. I do not wish to divide the Committee on the principle of the clause, on which we are in full agreement, but I feel strongly that Parliament needs to have the evidence that the reform can work before it makes a final decision. I will therefore divide the Committee on the amendment. I hope that any Government Members who want to make sure that we are not legislating for an unworkable reform will consider joining us, but I am realistic about how these things work.

Clause 50 - Appeals

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 144, in clause 50, page 35, line 24, at end insert

‘or the failure to do so within a prescribed time scale’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss amendment 145, in clause 50, page 35, line 37, at end insert

‘or the failure to do so within a prescribed time scale’.

Sharon Hodgson (Labour, Washington and Sunderland West)

The clause is welcome, and we have no objection to it in principle. All that my amendments seek to do is help those families who have been messed around—those who have waited and waited for their local authority to respond to their request, but whose local authority keeps on obfuscating. The amendments would ensure that where that was the case, families would be able to use the threat of tribunal—perhaps not even the tribunal process itself—to encourage the local authority to come to a decision either way. It is no good saying, “That will automatically happen, because we have put time scales in the code of practice and the regulations”; if things happened as they should automatically, we would barely need the tribunal service at all.

One of the biggest frustrations that parents can face is being fobbed off time and again while a local authority refuses to make a decision, all the time knowing that, because there is no actual decision to appeal against, there is not very much the parents can do. When they come to their MPs, or to our councillor colleagues, there is nothing we can do to get things moving if officers are determined not to play ball. Being able to go down the tribunal route if their council has failed them would give parents just that little bit of extra power, and make councils just that little bit more accountable to them. If the Minister is not minded to accept these changes, I hope that he will tell the Committee how the Bill will tackle the problem.

Edward Timpson (Conservative, Crewe and Nantwich)

Parents’ and, in future, young people’s right to appeal to the special educational needs and disability first-tier tribunal is an important part of the SEN system, and we have preserved that in the Bill. Amendment 144 seeks to add to that right by giving parents and young people the right to appeal if a local authority fails to inform them of its decision not to secure an EHC assessment within a prescribed period. Members will have seen that the draft regulations propose a six-week time limit for local authorities to tell parents and young people whether they will carry out an assessment or not, replicating the time limit set out in the current regulations; as now, local authorities will be in default of a duty if they fail to meet that time limit.

Parents do not currently have the right to appeal to the tribunal if a local authority does not comply with the six-week deadline. The tribunal’s role in special educational needs appeals is to come to a judgment about local authority decisions on whether to carry out assessments, whether to draw up SEN statements, the contents of those statements, ceasing statements and other matters. The tribunal does not have a role in enforcing the prescribed process for carrying out assessments, drawing up statements and so on. Complaints about a local authority failing to comply with, for example, the prescribed time limits for the process of dealing with requests for assessments, carrying them out and drawing up statements can be made to the local government ombudsman, on the grounds of maladministration, and to the Secretary of State, on the ground that the local authority has failed to carry out a statutory duty. The Secretary of State can give a direction to the local authority to carry out its duty.

The amendment would not be effective or helpful to parents and young people. The tribunal is aiming to reduce the time it takes to turn around SEN appeals, but an appeal on the grounds that a time limit has not been met would nevertheless need to be registered with the tribunal; the paperwork would then have to be assembled and a date set for the hearing. Such a process is not suitable for appeals about failure to comply with a time limit, as it is likely that the local authority would have notified the parent or young person of its decision by the time the appeal was heard. In contrast, an appeal to the Secretary of State and an initial inquiry to the local authority are more effective ways of getting the local authority to carry out its duty.

Amendment 145 differs from amendment 144 in this respect: there is no time limit on when local authorities must have told parents and young people whether they will carry out a reassessment in the current regulations or in the draft illustrative EHC assessment and plan regulations. It is important that we consider the draft regulations ahead of consultation, in order to decide whether to impose on local authorities a parallel time limit for telling parents whether they will carry out a reassessment or not. On that basis, I urge the hon. Lady to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

Given the reassurance that the Minister offered before the suspension, I beg to ask leave to withdraw the amendment.

Robert Buckland (Conservative, South Swindon)

I beg to move amendment 35, in clause 50, page 35, line 42, at end insert—

‘(g) the social care provision specified in an EHC plan;

(h) the healthcare provision specified in an EHC plan.’.

The amendment is a fairly straightforward proposal that would give the first-tier tribunal additional powers to hear appeals on the content of the health care and social care elements of education, health and care plans. As we are creating a single plan that cuts across education, health and social care, it is logical to create a single point of appeal for the content of those plans.

As the Bill is currently drafted, parents and young people will need to appeal or take complaints to different agencies depending on the part of the EHC plan to which a problem relates. The obvious place for a single point of appeal is the first-tier SEND tribunal, which sits in the health, education and social care chamber. It is not a big leap of faith for that tribunal to hear appeals on all three parts of a plan. Surely that is preferable to sending parents off to different parts of the system, which can only sow confusion and the sort of problems that we are trying to overcome with the Bill.

In the existing system of SEN statements, in which the education parts are statutory, it makes sense for the tribunal to hear only education-related issues, but that will not be the case in future, particularly when parents or young people appeal, say, the education and health elements simultaneously. We are trying to avoid the rather depressing spectacle of separate appeals for different elements of a plan.

We are happy that there has been a resolution on speech and language therapy, but it is sometimes difficult to disentangle health from education, and vice versa. In practical terms, we envisage that separate hearings will not only be inconvenient and impractical for children, young people and families but will make it difficult for the tribunals themselves to deal with cases where the outcome of one appeal depends on what is happening in a separate hearing.

A simple system of accountability is needed to accompany the single EHC plan. I am interested to hear my hon. Friend the Minister’s observations on the proposal, or on any other way that he thinks a single point of redress could be created, which would improve transparency and accountability and go a long way to meeting the objectives that we all share.

Edward Timpson (Conservative, Crewe and Nantwich)

I understand from my hon. Friend’s tacit remarks that this is in effect a probing amendment to explore whether the first-tier tribunal for SEND could be a single point of redress for parents and young people appealing the provisions in their EHC plan. The amendment would widen the tribunal’s jurisdiction from education provision to include health care and social care provision. I understand that a single point of redress for all the provisions in an EHC plan is considered helpful for the reasons that he has set out.

EHC plans will be for children and young people who have special educational needs, and it is therefore right that the tribunal’s jurisdiction should be focused on decisions about special educational needs. It should be remembered that when a health care or social care provision set out in a plan is wholly or mainly for the purposes of education and training, it is to be treated as a special educational provision. Parents and young people will be able to appeal to the tribunal about such provisions. My hon. Friend mentioned speech and language therapy as an example. There is no reason to extend the tribunal’s powers so that it can deal with appeals on health care and social care more generally. There are already procedures that can hear appeals in relation to the health care and social care that will be set out in plans and not treated as special educational provision.

For health complaints, NHS bodies are under direct duties to involve patients in the decisions about their care, to consult patients and to uphold the NHS constitution that sets out patients’ rights and pledges from the NHS about how it will deal with complaints. Locally, patient advice and liaison services help to deal with complaints about NHS care, including how to get independent help with a complaint. Of course, we have a duty in the Bill around health, which will strengthen the hand not just of parents but of local authorities in ensuring that health needs are met.

For social care complaints, as now, the main route for families to bring social care services to account will be through local authority complaints systems and the judicial review process. The joint commissioning clause includes a specific requirement for local authorities and their partner commissioning bodies to make arrangements for considering and agreeing how complaints about education, health and care provision can be made and are to be dealt with. That will provide families with a more accessible and co-ordinated way to complain about all aspects of their care.

The Committee has been provided with the indicative draft of the new SEN code of practice. Members will see that in the chapter on redress we will give details of the complaints processes for health care and social care provision in order to bring all routes of redress into a single accessible point of reference. I spoke in the previous debate about the one-stop shop in the development of a single interface for parents and young people, which they see very much as a first step to ensuring that they understand where they can go, whatever their issue—education, health care or social care—to get the advice and guidance that will triage them through the system in a much more transparent and effective way than at present.

I hope that reassures my hon. Friend that much closer fusion is generated by the legislation and the code of practice. In some of the pathfinder areas, we have seen, through the development of closer co-ordinated assessment, better understanding of each agency and the part it plays, and an improvement in communication that has led to improving services. That has prevented the need to go further into the point of complaints and redress, which we all want to avoid. The legislation is designed to try to avoid that at all costs.

Robert Buckland (Conservative, South Swindon)

My hon. Friend is right to say that the amendment is probing. I make these observations about the indicative draft. I do not think at the moment that there is enough clarity in the draft about what precisely happens to cases that need to be dealt with in a health or social care scenario. It may be that the indicative draft of the code of practice is not the place for that provision.

There may be a need to draft some provisions in the tribunal’s rules of procedure to cover that point. For example, if a practice direction was applied by tribunals to what were seen as mixed issues of health, social care and education, the court would allocate a particular hearing to determine that or, better still, would resolve to sit in a way that was convenient and led by the facts of the case rather than by what I hope we can avoid—the often arcane and thorny paths that can be taken with such appeals.

I appeal to the Minister to ensure that deep, proper consideration is given not only to the indicative draft but that there is proper liaison with Her Majesty’s Courts and Tribunals Service to ensure it elects to deal with those mixed issues when they come before the tribunal and the hearing. I beg to ask leave to withdraw the amendment.

Edward Timpson (Conservative, Crewe and Nantwich)

I beg to move amendment 221, in clause 50, page 36, line 11, at end insert—

‘(5) A person commits an offence if without reasonable excuse that person fails to comply with any requirement—

(a) in respect of the discovery or inspection of documents, or

(b) to attend to give evidence and produce documents,

where that requirement is imposed by Tribunal Procedure Rules in relation to an appeal under this section or regulations under subsection (4)(a).

(6) A person guilty of an offence under subsection (5) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Clause stand part.

New clause 20—Tribunal service: information on cases related to special educational needs—

‘(1) The Secretary of State must collect information on all cases related to special educational needs which are considered by the Tribunal Service, including—

(a) the local authority involved;

(b) the cost to the Tribunal Service;

(c) the amount spent by the local authority on fighting each case;

(d) the nature of each case; and

(e) the outcome of each case.

(2) The Secretary of State must collate and publish information collected in the exercise of his functions under subsection (1) once a year.

(3) The following bodies must make arrangements to provide such information to the Secretary of State as is necessary to enable him to perform his functions under this section—

(a) the Tribunal Service;

(b) local authorities.’.

Edward Timpson (Conservative, Crewe and Nantwich)

Government amendment 221 complements the rules that govern the working of the first-tier tribunal. Those rules provide for the tribunal to issue summonses on parties to an appeal, either the parents and young people or the local authority or witnesses on their behalf, to act as a witness or to produce documents when that is necessary for the proper consideration of a case. The amendment provides for fines to be imposed up to level three on the standard scale—£1,000—if someone fails to comply with a summons.

The amendment is necessary on two counts. First, it re-enacts two subsections in the Education Act 1996 contained in section 336 that largely apply to Wales and the Welsh tribunal. A consequence of the Bill is that there will be separate legal frameworks for England and Wales and we need to re-enact this provision for England.

Secondly, the amendment supports the effective working of the tribunal by imposing a sanction where a summons to act as a witness or to produce documents is not complied with. Members may find talk of imposing fines of up to £1,000 somewhat draconian on the face of it. It should be remembered, however, that it is very much a backstop measure of last resort. We expect very few, if any, fines to be imposed as we expect very few, if any, people to be in breach of a summons issued by the tribunal. It should also be borne in mind that the tribunal rules limit the occasions when a summons can be issued. No one can be compelled to give evidence or produce a document if they could not be so compelled for trial in a court of law.

I am sure that hon. Members would wish for cases to be heard by a tribunal panel in possession of all the evidence and documents that it needs to make a just decision. I urge the Committee to accept the amendment.

In relation to the clause, I know that there has been concern about maintaining parents’ rights. The clause preserves the right of parents of children with special educational needs to appeal to the first-tier SEND tribunal about local authority decisions in relation to assessment and what will be EHC plans. In addition, it gives the right of appeal to young people themselves—including those in school—rather than to their parent. That is a key part of the improved rights and protections for young people, particularly those in further education and training who will now be able to appeal to the tribunal while they have a plan. Parents of children under two will also have a right of appeal for the first time. The clause is complemented by the indicative appeals regulations that we have published for the Committee’s attention.

We hope that more disagreements will be resolved without recourse to the first-tier tribunal, through greater involvement of parents and young people in the assessment and planning process, and through mediation. It is right that young people should be able to appeal a decision themselves. I hope that the Committee agrees that the clause should stand part of the Bill.

Sharon Hodgson (Labour, Washington and Sunderland West)

The new clause would make local authorities more accountable, both to local families and also, in this case, national campaign groups and organisations.

Just as the information published as a result of the Special Educational Needs (Information) Act 2008, which I tabled as a private Member’s Bill, has helped campaign groups to spot where there are gaps in provision and where outcomes are better or worse than we might expect, my intention with the new clause is to build a national picture of where there is the most conflict in the system. Tribunal cases are not the only symptom of conflict; there is a lot of conflict leading up to that point and, as we know, many cases do not get to tribunal because families lack, or believe that they lack, the knowledge, time or energy or the financial means to take the case to that level.

The new clause, and the reporting that it would entail would not, therefore, provide a perfect picture of the level of conflict that remains in the system. However, in the absence of any real way of measuring that dissatisfaction, reporting on tribunal cases would give us a good idea of where there may be problems and, on the flipside, encourage local authorities to try harder to reach satisfactory outcomes with parents before cases get to that stage.

This idea has not come out of the blue; it came from the SEN policy review that I conducted last year. We heard from many parents who had been down the tribunal route and were understandably embittered by it. In many cases, just trying to get the right support for their child by taking their local authority to tribunal brought real stress and financial hardship on the parents, only for them to turn up on the day and find that the council’s lawyer conceded instantly, or requested an adjournment.

There is also anecdotal evidence of local authorities who routinely do not abide by the letter of the law and the code of practice in an effort to keep their costs down, in the knowledge that only a small proportion of parents will take them all the way to tribunal. There are further anecdotal examples of councils spending tens of thousands of pounds on legal fees just to avoid spending a much smaller amount on provision.

Today, I received a memorandum submitted by Paula Jewes, who has a 15-year-old daughter on the autistic spectrum. Paula is a trustee of Merton Mencap and backs up exactly what I have said:

“Families of disabled or SEN children are extremely vulnerable and are less able than average people to advocate for themselves. On the other hand, some Local Authorities are highly motivated to avoid their legal obligations…Local Authorities often perceive SEN legislation to be unjust because it requires them to meet an individual’s assessed need without consideration of their own limited resources…There is currently no effective means of addressing widespread abuse of the Tribunal System by Local Authorities. This is because the tribunal can only give directions on a case by case basis. Whilst their judgements set legal precedents and clarify general understanding of the law, widespread abuse of the system occurs prior to judicial decisions e.g. attempts to bully parents…by taking cases to the tribunal door and then negotiating, talking hearings through to a second day (normally not timetabled and so heard some months later), and using poor evidence or ‘long shot’ cases in order to delay delivery of an expensive provision.”

I am sure that I could find hundreds of such examples.

There were calls by parents, as well as by the SOS!SEN hotline, to bolster the power of tribunals to impose financial sanctions on local authorities, but that is not necessarily the best way to tackle the behaviour. After all, when councils are fined it is ultimately their residents who have to pay, either through their rates or through suffering cuts to services. However, there needs to be something to discourage local authorities from allowing cases to get to the point where they go to tribunal.

We will never eliminate the tribunal stage entirely, because there will always be cases in which the parents may be in the wrong and making unreasonable demands. I recognise that that will sometimes happen, but if local authorities know that the information will regularly be made public—information about not just whether they have won or lost, but about how much they have spent in fighting cases—those that are overrepresented in that regard will re-evaluate their practices. That would not require much of the bodies involved—the councils, the tribunal service and the Department. The information could be published in digital format, and be collected as part of other audits that the Department undertakes, such as that which provides the data for the reports on special educational needs in England. It would also fit well with the Government’s transparency agenda.

For such minimal effort, there could be genuine savings to the public purse, as a result of a lower case load for the tribunal service, a lower spend on legal aid, and a lower spend by local authorities on their own legal representation. Most important though, it could spark an improvement in relationships between local authorities and the families of children and young people with special educational needs. That is one of the goals that the Government rightly have for the legislation—“less adversarial nature” are the words that we all remember from the Green Paper—but it is one area in which parents are still sceptical about anything changing.

I know that the Minister shares my ambition to reduce the need for cases to go to tribunal, and in subsequent clauses we will be discussing mediation, which is another part of the solution. I therefore hope that he will either accept the new clause, or make a commitment to return to the Department and examine the possible benefits and drawbacks that tabling his own amendments to that end might involve.

Edward Timpson (Conservative, Crewe and Nantwich)

I understand the hon. Lady’s argument about new clause 20—that the more information that is available about SEN matters, and the more we know about the provision for children and young people with SEN and the actions of the parties involved in the system, the better. In general, I agree with such sentiment, but I do not think that the new clause would provide a useful addition to the available body of evidence, for the following reasons. The Ministry of Justice and Her Majesty’s Courts and Tribunals Service already publish information on the number of appeals registered, the outcomes, the type of special educational need to which the appeals relate, the number of appeals registered against each local authority, and other information, including judicial costs, venue costs, administration costs, the cost to a local authority defending a tribunal case and so on.

A few months ago, I was privileged to be invited to a SEND tribunal to sit in on a case and be present for the hearing. The case I saw was one in which the arguments and the issues were very finely balanced. I was genuinely impressed by the consideration that the appeal panel gave and the way in which it handled the case. Although I am of course not at liberty to give details of that case, I fear that, depending on the level of detail of the “nature of each case” that the Secretary of State would be obliged to publish, the proposed new clause has the potential to undermine what are meant to be private proceedings.

Looking back at that case, I can see that the information that the new clause would require to be published would not necessarily fairly represent what went on. It would just be recorded that such-and-such a local authority was the defendant, that the tribunal and the local authority spent so much on the case, that it was about this issue, and what the outcome was. That would misrepresent the case, in which, as I say, the arguments were finely balanced. It was both reasonable of the parent to bring the case and reasonable of the local authority to defend it, and for a decision to be made.

I understand the argument that highlighting which local authorities have most cases registered against them and what those cases are about could be used as a lever for improving provision and reducing the money spent on appeals to the tribunal. However, I do not think that publishing such information would necessarily achieve that, and I think that the Bill offers other and better ways of doing so. As I say, the Ministry of Justice and HMCTS already publish annual figures on the number of registered appeals, broken down by local authority. I am happy to provide that information to the hon. Lady, although it is available on the website. I am not aware that it has had any effect on the provision made for children across the country.

Sharon Hodgson (Labour, Washington and Sunderland West)

I am grateful to the Minister for letting members of the Committee know where we can find this information and that some of it is already available. I was not aware of that, and I wonder how many parents and people involved in the SEN world are. How accessible is it to parents? Where is it available? Is it widely known that it is in an easy-to-find place on some website, or is it hidden away where someone would have to know where they were looking?

Edward Timpson (Conservative, Crewe and Nantwich)

I have not recently navigated around the webisphere and discovered for myself the precise web address, so I am unable to give the exact details for this information, but it is on the Ministry of Justice website as well as the HMCTS website. Obviously, the very fact that we have had the opportunity to highlight that fact during this debate will be of use in bringing that information to the fore.

Clearly, we must consider how we can provide access to a wider audience who would be interested in this information, perhaps through parent carer forums and other groups set up to advise and guide parents and young people who have a special educational need. The practical guidance offered will also be a way of enhancing the opportunities for people to learn more about what happens in their local area and to invest some time in looking at this information. There is a whole range of figures, depending on which part of the country we are talking about and which local authority area we are interested in, so I can reassure the hon. Lady that information is available online at the Ministry of Justice website, with the usual clicks to find one’s way to the relevant page. I will be very happy to provide her with the exact web address once I have had an opportunity to familiarise myself with it.

To the extent that appeals are currently registered with the tribunal as a result of poor relations between parents and the local authority during the assessment and statementing process, I believe that the improved process for assessment and drawing up plans which put parents and young people at its heart will address that. To the extent that appeals are registered because there is inadequate provision locally, parents and young people will be able to bring that to the local authority’s attention through their role, set out in legislation, in developing the local offer and provision in the area.

The hon. Lady rightly pointed out that a large number of cases—about 80%—that were registered with the tribunal were withdrawn by parents or conceded by the local authority. Our proposal about mediation information, which the hon. Lady has already said we will come on to, is the most effective way of tackling that problem. There are many reasons why cases are registered with the tribunal. Many parents and their representatives will say that local authorities are prepared to fight cases because they are more interested in finances than in meeting children and young people’s needs. On the other hand, I know that some local authorities would say that parents and their advisers register a case with the tribunal as a tactic to up the ante. I take the view that the publication of information for which there could be a number of competing explanations heightens contention in this area rather than reduces the adversarial nature of the system, which is one of the aims of the Bill. However, there is information out there, as I have said, which helps to address the concerns that the hon. Lady raised. I therefore urge her not to press her new clause.

Clause 51 - Mediation

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 146, in clause 51, page 37, line 13, at end insert—

‘(7A) All correspondence sent and received and documents produced by a mediation adviser or mediator in respect of a case must be made available to—

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

(b) the local authority; and

(c) the First-tier Tribunal.

(7B) The First-tier Tribunal must have regard to documents supplied under subsection (7A) in consideration of a claim brought to it under section 50 (appeals).’.

I rise to speak to the amendment in my name and that of my hon. Friend the Member for Wigan. Before I speak to the amendment, I should acknowledge the improvement that the Government have made to clause 51 by ensuring that the mediation process is not mandatory. In an ideal world, mediation would be the end point of a dispute. Both sides would come to the table in good faith, and would be open to compromise with the intention of abiding by whatever the outcome of the mediation is. Unfortunately, as we know, by the time a case gets to the point at which mediation becomes an option, there has often been a complete breakdown in communication and relations between the local authority and the family. If mediation is simply about getting people who have not been able to agree around a table with an independent mediator— whose independence is questionable, given that they are paid by the council and are therefore reluctant to be seen as problematic—it will not achieve very much. It will simply delay the inevitable course that the case will take, and will therefore extend the period during which a child or young person does not get support and, if they are out of an educational establishment, education.

As the Committee knows, those points were made by the Select Committee on Education during its scrutiny of the draft clauses, as a result of the weight of opinion in the sector and of parents. To the Government’s credit, the Committee was listened to. As a result, parents are now required to consider mediation before they apply to the SEND tribunal, a compromise that is widely supported. The amendment in my name and that of my hon. Friend the Member for Wigan does not, therefore, seek to make any substantive change to that arrangement. Rather, it seeks to ensure that when mediation is entered into, the process is documented properly and the documents are made available to the tribunal if a resolution is not found to help inform the judge’s decision. That paperwork should also be available to the parents and the local authority to assist them in putting their cases together.

The primary reason why I believe the amendment is necessary is to ensure that tribunals arrive at the right decision by ensuring that they have all the relevant information available to them when they arrive at their decision. However, I believe that there are two allied benefits. First, both parties will be more likely to take part in mediation in a meaningful way if they know that their actions and contributions to the process will be known to the tribunal judge. That might influence the decision that is ultimately made.

Secondly, it will ensure that the mediation system is transparent, and that parents, in particular, have access to all the notes about the case. I do not think that it will place any additional burdens on any of the parties involved. A mediation adviser would, by necessity, be producing that paperwork and sending it to the tribunal. The involvement of the local authority and the family would not be more than sending an e-mail. However, the benefits that the proposal could bring are significant. I therefore hope that if the Minister asks me to withdraw the amendment, he will assure me that the purpose behind it will be adequately covered in regulations or that he will consider Government amendments further down the line.

Edward Timpson (Conservative, Crewe and Nantwich)

I understand that the purpose behind the hon. Lady’s amendment is to ensure that all parties in a tribunal appeal are aware of all that took place at the mediation stage. However, the amendment would not have the beneficial effect that the hon. Lady wants.

Proposed new section 7B would require the tribunal to have regard to the documents, but seemingly not the correspondence, during the mediation process. That would be a retrograde step. Let us briefly consider a potential scenario. Supposing that a parent decides to go to mediation but they fail to reach an agreement with the local authority. What regard should the tribunal have to a certificate from the mediator which says that mediation has taken place that was clearly unsuccessful because an appeal was still registered? Should the appeal panel conclude that the parent was being obstructive by not accepting the offer from the local authority or that the local authority was being obstructive by not offering more? If the panel concludes one thing or the other, should that affect its decision in the case? Clearly, it should not.

It is right for the tribunal panel to look just at the facts of the case and come to its decision on those facts. That is why in other courts of law negotiation and mediation happen on a without-prejudice basis, which then does not affect or fetter the role of the judge in hearing the case when there are clear facts at his or her disposal on which to base their decision. We are discussing decisions that can determine a child or young person’s educational provision, and they should not be affected by any conclusions that panels may draw from whether a parent or young person has decided to try mediation or from the local authority’s willingness to accept a mediated agreement.

Amendment 146 would also increase bureaucracy and is in part unnecessary. The people who need to see the certificates saying that mediation information has been given or that mediation has taken place would get to see them anyway. I cannot see how any correspondence about the date and venue of a mediation meeting is going to throw light on the case. Mediation is meant to be informal and independent, offering the parties the opportunity to be candid about their disagreement in a way that they cannot at the tribunal. I do not want that to be affected. I fear that if the participants felt that their discussions and disagreements were all going to be reported to the tribunal, the amendment would undermine the positive role that mediation can play.

For all those reasons, I urge the hon. Lady to withdraw amendment 146.

Sharon Hodgson (Labour, Washington and Sunderland West)

I listened carefully to what the Minister said, but I still do not agree with him. I cannot see how making such information available would not be helpful when moving to the next stage. I still think that it would help the judge and those making the decision in a tribunal to know what took place during mediation. I will not divide the Committee at this stage, but I will reflect on that and perhaps revisit this discussion on Report. I beg to ask leave to withdraw the amendment.

Clause 56 - Special educational provision otherwise than in schools, post-16 institutions etc

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 155, in clause 56, page 40, line 16, leave out from ‘be’ to end of line 17 and insert

‘in the best interests of the child or young person and their family’.

The amendment was tabled primarily to get clarification from the Minister about the scope allowed to local authorities by the wording of subsection (2), under which a local authority can arrange for special educational provision to be made for a child outside school or college if it is

“satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.”

We had a long, excellent debate on inclusion before the Easter break, with speeches from most Committee members present, and there was consensus that there are real positives for many children from their inclusion in mainstream education. My concern about the wording of earlier clauses is mirrored in relation to that of this clause.

What does “inappropriate” mean in the context, and how can parents influence and challenge what their local authority takes it to mean, given that the word is so vague and open to interpretation? A local authority might believe that it is appropriate for a certain child to be kept at home and receive their special educational provision there because it would be much cheaper and easier for it to administer, and not necessarily because that offers the child or young person the best outcomes or is the best option for their family. That would not be the best option for most children or families, as I think the Minister would agree.

There will, of course, be cases where that arrangement is the best option, and I do not want councils to be limited in making that work for such families, but they need to be clear that the primary concern in deciding whether to make provision outside a school or college must be whether that is in the best interests of the child or young person. That may well be the Government’s intention behind the wording, and indeed I hope that that is the case. I also hope that the Minister understands why I am concerned about the wording and will provide assurances that he will have another look at it, or ensure that the regulations are much clearer for parents and local authorities alike.

Edward Timpson (Conservative, Crewe and Nantwich)

I agree with the motives behind the hon. Lady’s amendment. Placement decisions should always be made after taking into account the interests of the child or young person, who should not simply be placed in alternative provision because that is convenient for the local authority. Throughout our debates on this part of the Bill, we have heard examples of circumstances in which placement decisions have not always gone right, and we need to guard against that.

Clause 56 will help local authorities to make the best arrangements for children and young people with special educational needs, but it does not apply just to the child or young person’s placement. It may not always be appropriate for some of a child’s or young person’s special educational provision to be made in a school, post-16 institution or early years provider. When that is the case, the clause will enable local authorities to make alternative arrangements that meet the individual’s needs. Before a local authority does so, it must consult the child’s parent or the young person themselves, which is in keeping with our commitment to ensuring that young people and parents are involved in the decisions that affect them, as exemplified by clause 19.

There is scope in the clause, and the hon. Lady will have seen that the indicative code of practice includes a marker for home education, which is one of the alternative settings in which it may, in some cases, be appropriate for a child or young person to be educated. There is an ability to develop that as the code is drawn up and, on that basis, I urge her to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I thank the Minister for his response and with the reassurances that he has given me, I beg to ask leave to withdraw the amendment.

Clause 59 - Supply of goods and services

Edward Timpson (Conservative, Crewe and Nantwich)

I beg to move amendment 222, in clause 59, page 41, line 43, leave out ‘another authority or any’ and insert ‘any authority or’.

This is a minor and technical amendment, designed to remove any ambiguity about who can supply goods and services. It will make it clear that a local authority may supply goods and services to a Welsh local authority to assist it in making special educational provision for an English child who is receiving relevant early years education in Wales. That replicates the position under section 318(3) of the Education Act 1996. There is a risk that the original wording could be interpreted as permitting an English authority to supply goods and services only to another English authority, which is not the intention. The amendment will clarify the position.

Clause 60 - Access to schools, post-16 institutions and other institutions

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 161, in clause 60, page 42, line 13, at end add—

‘(4) A local authority should contact the governing body of a school, post-16 institution or other institution at which education or training is provided before accessing their premises, unless doing so would negate the purpose of the visit.’.

We are flying and making excellent progress. The clause is a sensible one, with which I do not have an issue. Local authorities should have the right to go into schools and colleges where they are funding provision for a particular child or young person to ensure that that student is getting what the council is paying for and to investigate any complaints received. I welcome the fact that the provision will include academies and free schools, which have less accountability to local authorities on a day-to-day basis than maintained schools. Amendment 161 simply presses the Minister to describe what he feels will be best practice in performing such checks.

The Association of Colleges has concerns that local authority officers who make unannounced checks could disrupt the education of the child or young person concerned, as well as that of their classmates, particularly if the check occurs when something else is going on, such as an Ofsted inspection or a one-off event, or when the pupil has a planned absence or is otherwise out of school. In such cases, it might not be the best use of the officer’s time to visit on that particular day. There would undoubtedly be some benefit to negotiating a mutually convenient time for observations to be made.

There may well be reasons why an officer may want to arrive unannounced, to ensure that they do not benefit from the Ofsted effect of freshly painted classrooms and organised paperwork. If they receive complaints about provision, it is reasonable that they will want to get a good idea of what that provision is like on an ordinary day, and not give the school or college the opportunity temporarily to do what they ought to be doing anyway. Although there is a lot of value in allowing unannounced visits for extraordinary reasons, there is also value in giving notice for routine visits, both to ensure that the officer’s time is not wasted, and so that schools and colleges are able to prepare and plan staff time, so that the visit does not disrupt the school day.

The clause as it stands will not prevent a local authority from giving notice, but neither does it make it part of the process. I do not expect the Minister to accept my amendment—I might be wrong; he may do so—so I would be grateful if he clarified what he thinks will be the best practice for local authorities in visiting schools and colleges, and whether there will be specific guidance to address the concerns I have outlined.

Edward Timpson (Conservative, Crewe and Nantwich)

I thank the hon. Lady for her considered and constructive contribution. It is very much a hallmark of her efforts to provide a sensible and meaningful approach, to ensure that the Bill receives the right level of scrutiny and to cast a reasonable and pragmatic eye over what the Bill seeks to achieve.

The clause will allow a local authority to access premises to monitor the education or training provided as part of a child or young person’s education, health and care plan. In fulfilling that role, it is important that the local authority can assure itself, if need be, that the provision set out in each plan is being delivered in individual cases.

Ofsted, of course, has the primary role of inspecting education or training provision in England. That vital role remains unchanged by the clause. I can see that there would be a benefit to providers in having some notice ahead of any visit from the local authority. We expect the power to be used very infrequently by local authorities, and only as a back-stop when they deem it necessary. I would not want to constrain local authorities or unduly fetter their discretion to act, given the wide range of circumstances that they face, by being prescriptive on how they make use of a back-stop power, but I have been clear that I expect the power to be used infrequently. I will, however, be making it clear in the SEN code of practice that authorities should generally give 48 hours’ notice, unless there is good reason not to.

The Committee will be aware that the Home Office consultation on the code of practice on powers of entry closed on 5 March and that the responses are being considered. The draft code seeks to provide a framework for the consistent use of powers of entry across Government and local authorities. It proposes reasonable notice, usually not less than 48 hours, but it is clear that if pre-notification of the visit would defeat the purpose of inspection, officers, provided they have the statutory power to do so, can still visit unannounced, providing they act within the limitations of the power.

The draft code recognises that unannounced visits may be needed for the purposes of gaining a picture of the ordinary day-to-day processes of an institution, rather than a prepared or manufactured impression, and of safeguarding children and vulnerable groups. The amendment would go against the intention behind the clause to ensure that there is a back-stop to protect the best interests of a vulnerable group of children and young people. A statutory requirement to give notice before entry would also take precedence over the code of practice. Given that position, I urge the hon. Lady to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I thank the Minister for the reassurance with regard to including the 48 hours’ notice where possible in the code of practice. That will be very welcome and will ultimately achieve what I was trying to achieve with the amendment. In the light of that, I am happy to beg to ask leave to withdraw the amendment.

Clause 61 - Using best endeavours to secure special educational provision

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 162, in clause 61, page 42, line 28, at end insert—

‘(2A) In fulfilling its duties under this section, the appropriate authority must provide a report of how it has done so for a registered pupil or a student at a school, where such a report is requested by—

(a) the local authority responsible for the education of a child or young person;

(b) the family of a child or young person;

(c) the young person;

(d) the First Tier Tribunal; or

(e) the Education Funding Agency.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following: amendment 163, in clause 61, page 42, line 28, at end insert—

‘(2B) The appropriate authority must have regard to any advice regarding its duties under this section, where such advice is issued by—

(a) the Secretary of State;

(b) Her Majesty’s Chief Inspector of Education;

(c) the local authority; or

(d) the Education Funding Agency.’.

Amendment 216, in clause 61, page 42, line 28, at end insert—

‘(2A) In using their best endeavours to meet special educational needs, the school or other institution must provide a graduated response through using the School Action and School Action Plus stages.’.

New clause 23—Inclusion within mainstream schools and post-16 institutions—

‘(1) This section applies where a child or young person with special educational needs attends a mainstream school or post-16 institution.

(2) The relevant authority should use its best endeavours to ensure that—

(a) the child or young person is able to access mainstream courses and qualifications within that institution;

(b) all staff working at the school who may have contact with the child or young person are aware of the needs of that child or young person;

(c) all web-based content provided by it or on its behalf meets British Standard 8878:2010; and

(d) all students in attendance at the institution are able to play an active role in school life.

(3) The relevant authority should produce and publish a document explaining how it meets its duties under this section.

(4) The Secretary of State should, within one year of the commencement of this Act, produce guidance for schools and post-16 institutions to assist them in fulfilling their duties under this section.’.

Sharon Hodgson (Labour, Washington and Sunderland West)

The amendments are designed to improve and bolster the clause, rather than fundamentally change it. It is, of course, important that schools and colleges make every effort to secure the best possible support for children and young people with SEN. In fact, we expect schools and colleges to make every effort to provide the best possible education for all of their pupils.

There is concern, however, that with specific regard to pupils who do have SEN or disabilities, where the nature of their SEND means that they are entitled to a certain level of provision, the school or college should be under a duty to provide that support, not simply to use their best endeavours to support them. I do not think we necessarily need to go that far. It is true that the term “best endeavours” is slightly open to interpretation, but rather than remove that, I think it would be more useful for schools to be up front about how they have interpreted it if they are called upon to do so.

Where there are complaints—where families do not believe that schools have been using their best endeavours—it would be for the relevant body to decide, based on the report that the school provides, whether the complaint has merit. The new subsection would also place an obligation on schools to account for themselves to parents, and the young person where appropriate. Having to account for one’s actions and efforts in this way can only be a good thing and will lead to better provision in schools. I will therefore be grateful if the Minister tells me how that will be achieved if he does not accept the amendment.

Amendment 163 is similar in intention. It would place a duty on schools to heed the advice of bodies that may become involved in a case as a result of concerns being flagged by parents, young people, or indeed an Ofsted inspector, about how well the school is meeting its obligations under this part. The aim is to ensure that problems are rectified at the earliest possible opportunity by whichever agency receives a complaint. This is particularly important when it comes to free schools and academies and, for that matter, colleges, where the local authority’s challenge and support role ordinarily does not extend. Again, if the Minister is not minded to accept the amendments, I hope he will go into some detail with regard to how local authorities in particular can effect change in the provision that a child or young person gets from their school or college.

New clause 23, tabled by the hon. Member for South Swindon, is another attempt to make education more inclusive, not just in terms of whether a school will admit a child or young person with special educational needs, but whether that school provides a fully inclusive environment. That means not only pupils being able to access mainstream courses and qualifications, but the entire faculty knowing about a child’s particular needs or perhaps the manifestation of their difficulty, such as if they have Tourette’s, so that they are not told off for things they cannot help or punished in a way which would cause them undue stress.

As I so often do, I will use my son as an example. As the Committee will know he is severely dyslexic and he was once punished basically for being dyslexic. He had done something wrong in class and had not written down something off the board and he was sent home to write out the school rules line by line. When I came home late that night from London, I found him at the kitchen table where he had been sat all night writing out the school rules. When I challenged the teacher the next day he said he had no idea that Joseph had dyslexia, despite the fact that I had asked the school from the outset to ensure that all his teachers were made aware of this. Obviously there are problems with the training of that teacher, who did not spot an obviously dyslexic child, but that is a debate for a later point.

Facilities also need to be inclusive. Here are laws in place about physical access, but many school facilities are now web-based, such as cloud-based study resources and internal social networks and e-mail accounts. As we have discussed previously, there are gold standards for web-based services in terms of their accessibility for people with disabilities or learning difficulties, and I think that if they should be applied anywhere, they should be applied by schools and colleges, particularly given the importance of such services to modern education and indeed young people’s social development. I hope that the Minister will see the merit of this new clause in the principles that it will set for schools on inclusion. If he does not see the need to accept it and enshrine those principles in primary legislation, I hope that he will provide assurances that they will be covered by statutory guidance or regulations.

I do not want to spoil the speech we are about to hear from the hon. Member for South Swindon on amendment 216, which I am sure will be excellent, but I would like to assure him and inform the Minister and the rest of the Committee that the Opposition have a great deal of sympathy for that amendment. We heard from Brian Lamb during the witness sessions that it did not really matter whether we have a two-step system, whether it is called School Action, School Action Plus or whatever. I can see what he means by that: if the single category has the flexibility and clear processes and lines of accountability that the School Action system has, then to some extent what it is called is irrelevant. As long as those children with SEN who are on School Action or School Action Plus—1.4 million according to the Government’s latest figures, many of whom will have genuine and life-limiting learning difficulties or disabilities—get the support that they need to access the curriculum, I do not mind what it is called or whether it is a single category or two or more. The problem is that we simply do not know whether those children will get that support.

We are losing a system which is bedded in well, which parents and educators understand and which is more or less trusted across the board. I concede that there may be children on School Action who do not have a learning difficulty but who have problems at home. I am sure the Government have a stockpile of seemingly ridiculous reasons that children have been put into the School Action category, and perhaps we will be treated to some today. The problem is that in the vast majority of these cases, they will have been put on School Action because they are clearly falling behind and their teacher does not know how to meet their needs. Whether they have a learning difficulty or are just having difficulty learning, putting them on School Action is the only way that teacher can ensure that they get a bit more support.

If we want to reduce the numbers on the SEN register, we need to address the base level of expertise on learning difficulties among educators, particularly through initial teacher training and continuous professional development; we cannot do it on an arbitrary basis, based on a few exceptional anecdotes. People are wary that that is what the Government might be doing, as I am sure the Minister recognises, so it is imperative that we know as soon as possible what will replace School Action and School Action Plus.

I am also keen to ensure that those children whose progress and outcomes are at the moment tracked and reported on under the Special Educational Needs (Information) Act 2008 will continue to be monitored in that way. I asked the Minister about this during the evidence sessions, when he might not have had the relevant briefing to hand, but I am sure it will find its way to him today. I know that those within the single category will continue to be tracked, which is good, but will we no longer track those who have been on School Action but do not make it into the single category? Taking children off the register does not mean that they will stop having difficulty accessing the curriculum for some reason, but it does mean that they lose certain guarantees that being in that category affords them.

Until we know the answers to those questions and are confident that the new single category will be at least as good in terms of the tailored support it will afford children and young people with SEN, the Opposition will support the hon. Member for South Swindon in his calls for the current system to be retained.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Lady for previewing some of the things I want to say. I will not repeat what she said, because she made very well the point that we need to avoid getting too hung up about the descriptions of the stages, and whether it will be one or two stages. That is not the issue; as she said, the issue is making sure that teachers and other professionals have the training and awareness to identify any need properly.

As the hon. Lady said, some needs will not amount to special educational needs. Indeed, the Ofsted report, “A statement is not enough”, which caused quite a controversy when it was published about 18 months ago, made that very point: there is a degree of incorrect identification. The identification of a particular issue does not have to be dealt with as a full-blown special educational need, and in many cases should not be. My amendment relates to that point.

The current code of practice, which was drafted in 2001 and so is now 12 years old, is clear about the process relating to the initial identification of a special educational need. It states that as part of their standard offer to all children, schools should be differentiating the curriculum, providing behaviour management interventions, making adaptations for disabled children and providing alternative learning environments. The code is clear that those standard interventions should not be seen as part of the SEN process, and in many schools that is exactly what is happening: provision is being made for that approach within the curriculum and the mainstream. Referrals to School Action should occur only if the teacher feels the child is not making progress despite use of the differentiated curriculum and other additional support. The problem that Ofsted found was that some schools were jumping straight to the SEN register without first going through the standard interventions.

My worry is that the creation of a single SEN category, and the removal of School Action and School Action Plus, will not solve the problem of initial identification. The two-stage approach is designed to provide a graduated response to meeting special educational needs once a pupil has already been identified as having SEN. The problem is therefore not so much with the stages as with practice and training.

Parents place great value on the code of practice. The guidance in the current code about School Action and School Action Plus provides clear structures for the additional levels of support and for ensuring that parents, children and young people are closely involved in each step of the process. It is well established and clearly fundamental. We therefore need to think clearly about root-and-branch reform to the system without looking at the evidence for how things would improve. As my hon. Friend the Minister is aware, there is concern that the removal of School Action and School Action Plus will result in fewer children and young people with SEN getting the support that they need. The Government have not advocated a policy of a targeted reduction in the number of children and young people with SEN; they have rightly relied on the principle of better identification and therefore a better approach, without getting too hung up on labels, processes and nomenclature, but instead looking at the outcome, which is so important.

I am interested and keen to hear from the Minister how he sees the proposal as a way to improve identification of SEN. Could there be some other ways that might be more effective, without a complete uprooting of the existing framework?

Edward Timpson (Conservative, Crewe and Nantwich)

The amendments relate to the critical issue of the support available to children and young people with SEN but without an EHC plan. The Bill maintains existing duties for that group, and extends them directly to academies, as mentioned. That specifically includes the duty to use best endeavours to secure special educational provision, to have an SEN co-ordinator to notify parents where SEN provision is being made and to publish information on how SEN and disability policy is being implemented. The Bill also makes provision for statutory guidance in the form of a revised code of practice to which schools and others must have regard when making their best endeavours. The indicative code sets out the proposed approach for pupils with SEN but no EHCP.

I want to reassure the hon. Member for Washington and Sunderland West about one of the issues that she raised on ensuring that all those who teach pupils with SEN are aware that the children have special educational needs. It dovetails with the issue of identification within the code, which was rightly raised by my hon. Friend the Member for South Swindon and which we will come on to; it is something that we referred to at one point, and I recall the hon. Lady taking some ownership of the phrase about ensuring that all teachers are SEN teachers—that is reflected in the code. Paragraph 5.6 sets out precisely the specific reference to schools and ensuring that all those who teach people with SEN are aware of their special educational needs.

The indicative code also makes it clear that the single category is not a smaller category. Quite rightly, my hon. Friend the Member for South Swindon spoke about not getting hung up on labels and processes, but we have to be clear in the debate that the definition of SEN remains the same. All those children with any special educational need will continue to be tracked as they are now. This is not an attempt to suppress somehow the number of children or young people who have a genuine educational need; it is to improve identification, for all the reasons given by my hon. Friend, and to ensure that throughout the education system and within schools there is responsibility, ownership and a better understanding of the importance of identification and of putting in the individual, personalised support that we know is most effective.

School governors must, first and foremost, be accountable to parents, carers and young people for what they provide. Clause 63 requires that parents or the young people themselves must be notified when special educational provision is made for a pupil. The draft code of practice sets out that education settings should have a clear plan for the support being put in place for children and young people with SEN, including the all-important outcomes to be achieved. This should be reviewed regularly, and the parent or young person should be involved in the process right from the beginning.

The reviews will allow the graduated approach to tackling need to be maintained, but in a way that focuses more on the individual and on whether outcomes are improving, rather than following a set process. We know from successful programmes such as Achievement for All, the expansion of which my Department is continuing to fund, that such regular reviews that closely involve parents and a wider group of teachers within the school can have a dramatic impact on outcomes. The code also sets out that schools and the local authority should work together to agree funding arrangements and a local approach for accessing different types of additional SEN support.

Before consulting publicly on a full draft of the code of practice and laying it before Parliament, we will continue to work with teachers, special educational needs co-ordinators and the many organisations that have huge expertise in this field, as well as with parents and young people, to make sure that the code provides the right framework to ensure that children and young people without education, health and care plans receive the right support.

Amendment 162 would make all education settings report on what they are doing when requested to do so by a wide range of people. I have described how the indicative code sets out a process for schools and others to work with and report to families, young people and local authorities. That is backed up by the requirement on schools to issue annual reports on pupils’ progress.

The other two bodies listed already have suitable powers to request information where appropriate. The first tier tribunal can already request information on what provision is available and how it is meeting children’s needs in relation to an appeal, in particular where schools and local authorities are arguing that a statutory assessment or an EHC plan is not required. The Education Funding Agency is not a separate statutory body but acts on behalf of the Secretary of State in considering complaints about academies. It already has the necessary powers to investigate these bodies and to ask for relevant information. I hope that is reassuring for hon. Members.

Amendment 163 would place a duty on school settings to have regard to advice issued by the four sources listed. To avoid confusion, we think the code of practice is the right place for statutory guidance on these issues, and the code will be consulted on and approved by Parliament in a way that the guidance proposed by amendment 163 would not be. Such scrutiny can help to ensure that the code is comprehensive, not only on this issue but on many other issues that the Committee has explored.

Of course, local authorities and Ofsted can issue guidance on how they carry out their duties. For instance, Ofsted’s inspection framework contains influential information on how it will inspect provision for pupils with SEN. However, I would not want to undermine the authority of the code by setting up alternative sources of statutory guidance that do not receive parliamentary scrutiny.

Amendment 216 would preserve School Action and School Action Plus approaches to managing SEN that are set out in the existing code of practice. We are changing the system because, as my hon. Friend the Member for South Swindon has already mentioned, Ofsted’s 2010 review of SEN found that

“current systems focus too much on whether pupils receive additional services, and too little on the impact of their support”.

Some schools meet pupils’ needs effectively, but others miss the opportunity to involve specialists where a child is in School Action, or they neglect the contribution that they can make for a child at School Action Plus. Our new approach aims to keep the best aspects of the old approach, as identified by Brian Lamb, while renewing the focus on individuals and the outcomes that they should achieve.

Finally, new clause 23 seeks to prescribe in detail how mainstream schools and post-16 institutions should use their best endeavours to support children and young people with special educational needs, and to require them to publish a document explaining how they have done so. In addition to the best endeavours and information publication duties, clause 35 provides that children and young people with SEN should be supported to engage in the activities of the school together with other children. Taken with the content statutory guidance in the code of practice, they have a similar effect to the new clause.

Specifically, as I indicated in responding to amendment 106 to clause 32 and as the Committee will no doubt recall, the stipulation for “relevant authorities” to use best endeavours to ensure that web-based content is accessible would be covered by the duties that bodies have under the Equality Act 2010. Clearly, the provision and support for pupils who have SEN but no EHC plan is vital, if for no other reason than that—as the hon. Member for Washington and Sunderland West pointed out—we are talking about a large cohort of children whose individual needs all need to be met.

As we all know, early intervention can prevent escalation of problems and every child deserves to get the best support to make as much progress as they can, to put them on a sound path to adulthood. For the reasons that I have set out, the provisions in the Bill, combined with coherent statutory guidance in the code of practice, provide a strong framework and one that the variety of schools and other bodies supporting them can adapt to their own circumstances, to give everyone a sense of ownership of early identification, strong support and a personalised response for each child and young person through their education journey. I hope that addresses the issues that have been raised by hon. Members, and that the hon. Lady will feel able to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

This has been an excellent debate about some issues that greatly concern people out there in the sector as well as children and families, so I am very pleased that we have had it. It has covered a lot of issues.

I have listened to what the Minister has said with regard to the code of practice, which is coming into its own. The fact that we now have the code of practice for the journey of the Bill through the House is good; it has proven to be much-needed. I cannot imagine how we would have been able to scrutinise this legislation without the code of practice. The Minister made the right decision to ensure that we had a code of practice for the scrutiny of the Bill, and I commend him for that. As he mentioned, the code of practice contains the phrase, “All teachers are teachers of children with SEN” and I am proud to say that I have used it in the past. Hopefully, it will address some of the concerns that we have all raised about ensuring that teachers know how to identify and recognise children’s needs that may have gone unidentified for many years.

The noble Lord Ramsbotham talks at great length and with great expertise about the young people in the criminal justice system and in prisons. I think between 70% and 80% of prisoners have unidentified speech and language and communication problems, and between 60% and 70% have undiagnosed dyslexia, so getting the identification right in schools is of paramount importance with regard to early intervention.

I am also pleased and reassured to hear the Minister say that this is not about getting rid of School Action and School Action Plus. It is not about suppressing the numbers of children and young people identified as having an SEN, which was one of the early worries. Some of the maybe misguided press at the time hinted that that was what the Green Paper and ultimately the legislation would be about. I was pleased to hear the Minister say that it is about ensuring that needs are assessed and then ultimately met. We are in total agreement with him and hope the Bill will achieve that.

I am also pleased that the code of practice seems to be a living and breathing document, which the Minister is willing to improve and amend during the passage of the Bill through the House. Hopefully, such a process will continue afterwards as well.

Robert Buckland (Conservative, South Swindon)

I need not repeat what the hon. Lady has said. She has explained clearly why we can all withdraw the amendments that we have tabled to the clause. I entirely agree with her that publishing the draft passage was an extremely important part of the process.

Sharon Hodgson (Labour, Washington and Sunderland West)

In the light of the reassurances that we have received today, I beg to ask leave to withdraw my amendment.

Clause 62 - SEN co-ordinators

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 164, in clause 62, page 42, line 39, after ‘staff’, insert

‘who shall be a qualified teacher.’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 165, in clause 62, page 42, line 41, at end insert—

‘(2A) The SEN co-ordinator designated under the provisions of subsection (2) must be, or on designation must become, a member of the senior management or leadership team within the school.

(2B) The SEN co-ordinator designated under the provisions of subsection (2) must be a qualified teacher.’.

Amendment 286, in clause 62, page 42, line 41, at end insert—

‘(2A) The appropriate authority must designate a member of staff who shall be a qualified teacher and must have undertaken training to include a mandatory module on special educational needs, including dyslexia at the school (to be known as the “SEN co-ordinator”) as having responsibility for co-ordinating the provision for pupils with special educational needs.’.

New clause 47—Teachers—

‘(1) This section imposes duties on the appropriate authorities of the following schools in England—

(a) mainstream schools;

(b) maintained nursery schools.

(2) The appropriate authority must ensure all new teachers have undertaken in their initial teacher training a mandatory module on special educational needs, including dyslexia.

(3) The “appropriate authority” for a school is—

(a) in the case of a maintained school or maintained nursery school, the governing body;

(b) in the case of an Academy, the proprietor.’.

Sharon Hodgson (Labour, Washington and Sunderland West)

SENCOs play a vital role in delivering support for the children we have been talking about: the 1.4 million children and young people who have special educational needs but who do not have a statement so will probably not have an education, health and care plan. SENCOs also have a vital role to play in supporting many of those children and young people who do have a statement and an education, health and care plan.

Our amendments seek to place in primary legislation two stipulations that the draft code of practice seems to suggest that the Government support. They seek to ensure that SENCOs are qualified teachers and senior members of staff. I welcome the fact that the first of those is made explicit in the draft code of practice, but, if I was honest, I would much rather the Government put it in the Bill. We need to ensure that SENCOs have been taught how to teach the full class first and therefore have experience of leading learning. Preferably, they should have a few years’ experience of that, although I would not wish to specify that exactly. Such experience is important because we expect the SENCOs to be able to drive improvements in teaching practices and policies in the school at which they are employed. They will find that difficult if they do not have that knowledge and experience themselves, and they will be less likely to be listened to by their colleagues who do have that knowledge and experience.

If they are to be successful in making those improvements, which can often mean having to convince colleagues of the need to change their own style of teaching and long-established methods, I strongly believe that it would also help if SENCOs were on the senior leadership or management team of a school.

There are two reasons for that. Children with special educational needs need the most help, so we should want the best teachers to aspire to take on the role of SENCO, and we also want head teachers to give that responsibility to the best teachers at their disposal. However, anecdotal evidence suggests that that is not always the case. I have heard many professionals and parents describe how, particularly in primary schools, heads give the job to teachers they do not know what else to do with or sometimes to newly qualified teachers because none of the more experienced staff wants the role. It is as if being a SENCO is a derisory job that is done under duress.

By raising the status of SENCOs by saying that they should be part of the senior management team within a school, I believe we can positively influence the choice of individual to perform the role, at the same time as incentivising good teachers to work towards becoming a SENCO. This measure, in increasing the clout that SENCOs have, will vastly improve the quality of provision for children and young people in mainstream settings.

As Jane Friswell from Nasen said in the witness session, there is evidence to suggest that many of the new generation of SENCOs who are taking the national award currently are doing so as part of their path to further senior leadership roles, which means that over time we will have more heads and more deputy heads who have the experience of being a SENCO, and who will therefore recognise the importance of having school policies that cater for children and young people with special educational needs, which is greatly encouraging.

The amendments are common-sense improvements to a clause that we otherwise agree with. They follow the weight of evidence that the Committee heard a few weeks ago, and I suspect that the Minister agrees with them, so I hope he will allow them to be made. If he cannot, I hope he will give assurances that the requirement for SENCOs to be teachers, including in free schools, where even the teachers and head teachers do not have to be teachers, will remain in subsequent drafts of the code of practice, and that he will look at what the Department can do outside of the process to encourage more of the best teachers down the SENCO route.

Robert Buckland (Conservative, South Swindon)

May I briefly add my support to what the hon. Lady says about SENCOs? Being a SEN liaison governor in a secondary school, I can pay personal testament to the value of having an experienced teacher whose dedication to SEN was second to none. It is encouraging to hear that more and more teachers are using the SENCO route to seek leadership. That will, I am sure, lead to great results. Like everybody else, I am impatient for change and I want to ensure that fully qualified teachers are SENCOs here and now.

Sharon Hodgson (Labour, Washington and Sunderland West)

I thank the hon. Gentleman for his intervention and support of what I am endeavouring to do with the amendments. We all agree that anyone who has personal experience of a child with SEN and has to deal with SENCOs knows how important it is for SENCOs to be as highly competent and highly trained as possible. They also need to carry clout within the school. Like the hon. Gentleman, I am impatient and want this now. We need to set in train the changes for the future as well. Some of what we hope to do here today will bear fruit in as little as three to five years, as some of these SENCOs train and over the following five years become deputy heads or head teachers. In 10 years’ time we could see a very different situation. The Bill could be the start of that.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I endorse the hon. Lady’s comments. I am not sure which is the best way to achieve what she seeks. Many of us can mention our own examples, and my experience 10 years ago was of a relatively young SENCO. It struck me then that it is not just about being respected: unless one has a senior position in the school, one does not have that clout. A SENCO can be as well qualified as possible, but if older members of staff do not wish to recognise dyslexia, for example, nothing can be done.

Sharon Hodgson (Labour, Washington and Sunderland West)

I am very grateful that we are achieving such consensus, and I am sure the Minister will take notice of that. I look forward to his comments on those points.

I have a great deal of sympathy for the other amendments in the group, which were added last night, particularly new clause 47. The single biggest factor in determining the quality of provision in schools for all children and not just those with special educational needs is the quality of the teachers who work there, as we have said on numerous occasions. As we have discussed, however, that is particularly true for children with special educational needs. Every teacher is expected to teach children with special educational needs, but not every teacher enters the classroom with the benefit of knowing how to identify and adapt their teaching to meet the needs of those children. Some trainee teachers may spend as little as a day on SEN during their entire course and I have heard that some shockingly spend even less time than that, because it is an option. That is hardly sufficient when one in five children is identified as having some form of SEN or disability.

I am confident that there would be real merits if the Government increased the time available, including for much better identification and early intervention. As we know, that would save resources further down the line. I therefore look forward to my hon. Friend the Member for Sefton Central putting forward his case for amendment 286 and new clause 47, and to the Minister’s response.

Bill Esterson (Labour, Sefton Central)

I am grateful to my hon. Friend for her comments on amendment 286 and new clause 47, which are in my name and that of my hon. Friend the Member for Nottingham North (Mr Allen). I completely agree with the important points that both my hon. Friend the Member for Washington and Sunderland West and others have made about the difference that having a senior experienced teacher as the SENCO can make in giving special needs credibility within a school.

Amendment 286 and new clause 47 would address the need for not just experience but qualification when it comes to SEN-dedicated teachers. As well as agreeing that it is best done by experienced teachers, they call for the SENCO to be a qualified teacher and I look forward to hearing the Minister’s response. They deal with dyslexia in particular.

My hon. Friend the Member for Washington and Sunderland West earlier gave an example of how there can be misunderstanding. The amendment and the new clause would reduce the chance of a misunderstanding and inappropriate action being taken by teachers. The example that she described is sadly all too common in our schools. It should have been long ago consigned to the history books.

The Minister said earlier that all teachers should be SEN teachers, and that was an important statement to make. New clause 47 would address that by requiring a much stronger degree of training in what is available to all new teachers. I hope he agrees that such a proposal would help achieve the goals he set out. I look forward to his response on that.

It is important that proper recognition is given to how we identify dyslexia and the difficulty it can cause in educational attainment. My daughter has dyslexia and I know from personal experience how difficult it can be to help her in her education. Many good tools are available in schools and beyond, and there are many good teachers who know how to use those tools. Through amendment 286 and new clause 47, I am trying to find a way of ensuring that those tools are more widely available and recognised, that there is better identification, and that support is given. As my hon. Friend said, well-qualified teachers are the single most important way of achieving that goal.

A delay in identifying dyslexia—I am thinking of personal experience—is a problem and may have a significant long-term effect on the child or young person’s education and life chances. That is why it is important to address that and other special needs. I hope that the Government will seriously consider how to take on board the suggestions for training for SEN co-ordinators and teachers because that would make a huge difference. I look forward to hearing the Minister’s response.

Andy Sawford (Labour, Corby)

I shall speak only briefly because my hon. Friends have clearly made the key arguments for the amendment, and I appreciate their raising the issues. I must declare an interest because my wife is a special educational needs co-ordinator in a primary school. She is a member of the leadership team and would expect no less of me than that I stand up in support of the amendments and make it clear that she believes, as do I from meeting SENCOs in the primary and secondary schools that I visit in my constituency, that they play an absolutely vital role.

The argument seems to have two strands. One is the nature of the role as it exists today. The way it has developed in recent years has been welcome and it has become much more significant. The Committee’s proper role is also to look forward at the changing landscape in which SENCOs operate in schools. They need a seat at the table when curriculum and funding decisions are made, not least because of the bearing that might have on special needs provision. Specialist provision in a school needs to be considered in relation to planning, staffing arrangements and so on. One critical role that a special educational needs co-ordinator has in a school involves teaching assistants and volunteers. Having that role on the leadership team is vital.

The skills that a special educational needs co-ordinator requires—leadership skills, communication skills, and the ability to sub-direct in their work—to carry out their role effectively are fostered in a leadership team and are appropriate to being part of that leadership team. It is also crucial to have authority within the school. If a SENCO is to work with teachers, learning assistants and other staff members in a school to ensure a proper focus on meeting the needs of children with special educational needs and to have strong relationships with external partners, it is vital that someone has the authority of being on the leadership team with the skills that come with being part of the school’s leadership.

The critical point about the changing landscape is that although in the past SENCOs may have been the deputy head, the head teacher or a member of staff not on the leadership team, we may have had some confidence in the relationship with the local education authority in maintained schools and the way they worked with schools to ensure inclusion, but those relationships are changing. Now is not the time to debate the pros and cons of that, and we must accept that that is how it is and that with the move to academies, free schools and other arrangements the relationship with the LEA is becoming weaker in many areas. The Government’s vision is that it will be replaced by other connections between schools and networks of support, but we must recognise that the schools for which really effective SENCOs are most important are those that are most likely not to have a SENCO on the leadership team or strong relationships with other organisations, whether as part of a chain or a federation of schools. They are often the schools that will be left behind, which is why it is so important that we ensure that children in such schools have at least a fighting chance.

A relationship exists between the quality of the special needs co-ordinator, the performance of the school and the quality of the special needs education provided, and the importance of improving special needs education in schools. It would be interesting to know if the Department has ever looked into that. Guaranteeing that the SENCO will be part of the leadership team would be welcomed by people around the country, including those in vital roles trying to meet the needs of children with special needs and those with special needs and their families. I hope the Minister accepts the amendment. I apologise in advance, but I must nip out of the Committee, so I will not hear all of his response, but I will read it on the record.

Edward Timpson (Conservative, Crewe and Nantwich)

Amendments 164 and 165 would require all special educational needs co-ordinators to be qualified teachers and for them to be appointed to school senior management teams. Those are issues where I am very much of a mind with the hon. Member for Washington and Sunderland West. Provisions to require SENCOs to be qualified teachers—including SENCOs in academies, which includes free schools as well—are in not only the code of practice, but the draft regulations for clause 62. The SENCO plays a key role, with the head teacher and governing body, in determining the strategic development of SEN policy and provision in the school. We must remember that the SENCO is not acting in isolation; the head teacher and the governing body, as part of fulfilling their duties and responsibilities to deliver strong and consistent SEN provision for children in their school, have a duty to ensure that the school makes certain that the SENCO has a valued role.

Sharon Hodgson (Labour, Washington and Sunderland West)

The hon. Member for South Swindon mentioned that he was a governor with responsibility for children with SEN. Is having such a governor a requirement on all governing bodies or do some schools just choose to go down that route?

Edward Timpson (Conservative, Crewe and Nantwich)

It is not a requirement on all governing bodies. I have pleaded in the past for particular posts on governing bodies. Schools will clearly feel that they want some roles for specific groups of children, but we are not in the business of stipulating precisely how that should manifest itself on each governing body. I know from my constituency and talking to school governors that a large majority of schools have governors who, partly through having experience of special educational needs themselves, fulfil that role, often in conjunction with other roles, on the governing body. There is nothing to prevent that. There is a good case for governing bodies looking carefully at the merits that would flow from such an arrangement. The SENCO, the head teacher and the governing body need strong communication to ensure that they offer the provision we need to see.

It is important that the SENCO is a qualified and experienced teacher who can provide related professional guidance to colleagues and work closely with the head teacher, the governing body, staff, parents, carers and other agencies to secure high-quality teaching for children with SEN. Regulations, rather than the Bill, are the best place for detailed requirements on the role and qualifications of the SENCO. That replicates the way in which the provision is structured under current legislation.

Our intention that all SENCOs will have to be qualified teachers is clear. There is no intention to change that despite some wishing us to do so. To change the requirement, any future Government would have to amend the regulations, which are subject to parliamentary approval, so there is an insurance policy for the future. It is clear that SENCOs can be particularly effective where they are part of a school’s senior leadership team. That point was made by the hon. Member for Corby from his knowledge of his wife’s role as the SENCO within the senior leadership team in her primary or secondary school—

Andy Sawford (Labour, Corby)

Primary.

Edward Timpson (Conservative, Crewe and Nantwich)

Okay. That arrangement gives SEN provision a clear priority and influence over the strategic planning of teaching and staff development, and the indicative code of practice has been published to reflect exactly that. It states:

“SENCOs can be particularly effective when part of the leadership team.”

There is therefore a clear steer in the code of practice.

It is right that schools should be able to decide their own management structures. Including such a provision in primary legislation would require a definition in legislation of what constitutes a school’s senior management team. As we know, their nature varies from school to school, depending on the size and complexion of the school, so it is not practical or desirable to enshrine in legislation where SENCOs sit. However, the code of practice and regulations will give schools a strong steer about how much we value the role of SENCOs, and about how we believe that they should be given sufficient clout in the school environment to make their role as meaningful and productive as possible. Over and above that, however, schools are obliged to have regard to the code of practice in meeting their duties to pupils with SEN, and the advice that it sets out will therefore be a strong and sufficient prompt.

Amendment 286 and new clause 47 would require schools to ensure that all new teachers and all SENCOs have undertaken mandatory training in special educational needs, including dyslexia. I share the desire of the hon. Member for Sefton Central, particularly from his experience of children with dyslexia, to ensure that teachers and SENCOs have the necessary training to support and teach children with SEN. We are committed to improving the quality of teacher training to enable them better to identify all areas of special educational needs and disabilities, so as to overcome the barriers to learning faced by some children and young people. We want teachers to be able to develop the skills and knowledge to teach children with a broad range of SEN and disabilities, as well as to have opportunities to focus on specific areas of SEN, such as dyslexia.

Of course, it is up to schools to decide what training their staff need, but we are providing specific practical help for teachers and support staff so that they can better identify and recognise pupils with dyslexia and other special educational needs. For instance, through the National College for Teaching and Leadership and its predecessor, we have developed specialist resources for initial teacher training and new advanced level online modules on dyslexia to enhance teachers’ knowledge, understanding and skills. We are working with key dyslexia organisations to ensure that those resources stay up to date and are widely used by teachers. I am happy to provide the hon. Gentleman with an update on progress in that area, which he touched on in his speech.

We have also agreed a £1.4 million national contract over the next two years with the Dyslexia-Specific Learning Difficulties Trust. It will assist schools, professionals and local authorities to improve the support available to dyslexic pupils, and draw on the evidence of effective programmes that we know work, so building their skills in the process. Through the national scholarship fund, we are supporting teachers to undertake postgraduate level qualifications in specific impairments, and many of them have applied to undertake masters level training in dyslexia.

Bill Esterson (Labour, Sefton Central)

The Minister has announced a range of investments and initiatives, which are all important and admirable. However, what we have heard whenever dyslexia is mentioned in the debates is a cultural issue around a lack of understanding or possibly even an unwillingness to understand. Does he accept that a cultural change is needed, which is what amendment 286 really drives at, and that we must somehow achieve that cultural change to make a real difference for children?

Edward Timpson (Conservative, Crewe and Nantwich)

The hon. Gentleman makes a fair point. As I went around many parts of the country to talk to parents and visit pathfinder areas, that theme cropped up again and again. I said on Second Reading and in earlier debates in Committee that, important as the legislation is in setting the framework and putting in duties where they are needed in the system, we also need to be able to ignite a cultural change not only through the Bill, but by trying to change attitudes and improve the training on the ground, so that those on the front line in schools and agencies working with schools are under no illusions about their role and how they can best fulfil it. That includes having the best possible knowledge and understanding of the types of children—no two children are the same—so that they are not ignorant of the many manifestations of the challenges faced by children in their care.

To complete the suite of activity we have to try to tackle the issue that the hon. Gentleman has raised, a similar scheme for support staff was launched in 2012, and 274 support staff have undertaken SEN specialist training. That is clearly not going to solve the problem completely, but it demonstrates that there is engagement and effort to improve practice on the ground. A further round of that scheme was launched on 8 April, so there is ongoing commitment to improve the specialist training of SEN among support staff.

In addition, the Department is supporting high-quality teaching of systematic synthetic phonics, which has been proved to be effective for teaching dyslexic pupils to read and write. Funding is matched for up to £3,000 for approved phonics materials for key stage 1 pupils and a phonics screening check was introduced in July 2012 to help teachers to identify pupils who have not made the progress that we would hope to see.

On SENCOs, there is already a commitment for all new SENCOs to undertake a mandatory qualification. Regulations to be made under clause 62(3) will retain that requirement. Since 2009, almost 10,500 SENCOs have been funded to complete the national award.

I hope that that provides hon. Members with reassurance both on our intention to ensure that the SENCO is a senior and influential member of staff, and that both SENCOs and other teachers have the knowledge, understanding and skills to support children with special educational needs, including dyslexia. Furthermore, I hope that I have persuaded hon. Members that our approach represents a strong and practical way of doing that. I hope, therefore, that the amendment will be withdrawn.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I wish to ask what is perhaps an obvious question. It has always concerned me that many courses are advertised and there is much potential for continuous professional development, but that does not necessarily mean that courses are being taken up. The Minister has covered in part the mandatory requirements for SENCOs, but does he know whether there are records of actual take-up of the various courses on offer?

Edward Timpson (Conservative, Crewe and Nantwich)

I am happy to write to the hon. Lady to give her the facts and figures on that. We are clear that there is the mandatory qualification. Mandatory means mandatory, but I am happy to write to her to provide more detail on that point.

Sharon Hodgson (Labour, Washington and Sunderland West)

I was very interested to listen to the Minister. There is much consensus on this issue, as there has been on many issues in this Committee, especially with regard to the SEN clauses. That is welcome and how it should be; the very point of this measure is to take away the adversarial nature of the journey for parents, so it is appropriate to take away the adversarial nature of the journey of the Bill through Parliament.

I was pleased to hear the Minister say that the draft regulations, as well as the code of practice, will contain guidance that says that without question, SENCOs have to be teachers in all schools, including academies and free schools. That is to be welcomed. I acknowledge that he said that regulations on the role of SENCOs are better than having the matter in the Bill. He may be right in that, but we do not want that role to be watered down at any point in the future. However, as long as either he or I are in the job, that would not be the case.

The Minister said that the regulations would improve the role of SENCOs and their position in the school’s structure to ensure that they had sufficient clout. I look forward to reading the wording; perhaps we can develop that during the Bill’s journey through the House to ensure that it is as tight as possible.

I also welcome the fact that there will be mandatory training for SENCOs and teachers to ensure that all teachers are able to teach children with SEN. The Minister is committed to improving the quality of training, which is welcome, but when we talk about mandatory training, are we talking about one afternoon or one day a year? How much training will there be?

On continuing professional development after initial teacher training, I coined a phrase a few years ago, “One in five for one in five,” which I thought was rather catchy. For those who have not caught on already, one in five children has SEN and there are five INSET days a year. Would it not be a good idea to use one of those five INSET days to train the work force for the one in five children in schools who have special educational needs? I was thrilled when, having discussed it with Lorraine Petersen, Nasen decided to adopt the proposal as one of its campaigns. Members might have come across the campaign, which is now running nationally. Does the Minister have any thoughts on that? Does he think it is a good idea, and does he want to adopt it in the regulations or the code of practice?

The British Dyslexia Association, the Dyslexia-SpLD Trust and Dyslexia Action have worked together to develop training modules. Earlier, my hon. Friend the Member for Sefton Central spoke about amendment 286 and new clause 47, and I understand that the training modules are ready—they are on the Department’s shelf, or on its website or whatever. They are ready to go, so the Minister might want to point people towards them in the regulations and guidance.

In light of the enormous reassurances that the Minister has given to me and the Committee today, I beg to ask leave to withdraw the amendment.

Clause 63 - Informing parents and young people

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 166, in clause 63, page 43, line 14, at end insert ‘, an institution within the further education sector’.

Christopher Chope (Conservative, Christchurch)

With this it will be convenient to discuss the following:

Amendment 169, in clause 63, page 43, line 23, after ‘school’, insert ‘, an institution within the further education sector’.

Amendment 170, in clause 64, page 43, line 28, after ‘schools’, insert ‘institutions within the further education sector’.

Sharon Hodgson (Labour, Washington and Sunderland West)

I do not intend to spend too much time on these amendments, as I tabled them more as a means of asking a question than to seek substantive changes.

Taken together, the amendments would amend clauses 63 and 64 to establish the same duties for post-16 institutions as will be conferred on schools, including high schools with sixth-form colleges. I received a briefing last night saying that colleges do not want those duties and that the Association of Colleges therefore does not support them. The association said that the argument against the duties is that young people who are taking GCSE-level courses, or who are on certain training programmes, might fall into the definition of being in receipt of special educational provision. Colleges would struggle to tell all those young people that they were in receipt of special educational provision.

The association also pointed out that it would be detrimental to young people’s self-esteem and morale if they heard that they were receiving special educational provision. That makes me wonder whether my understanding of special educational provision, as defined by clause 21, is different to the Government’s understanding, which they have been communicating to stakeholders. I do not consider courses that are not level 3 or A-level equivalent to constitute special educational provision. I would therefore be grateful if the Minister could shed some light on that. What exactly does SEP mean in the context of post-16 institutions?

That was not my initial question, however. My initial question was why post-16 institutions were not included in clauses 63 and 64 from the beginning, given that school-based sixth forms are. It is not my intention to place unrealistic burdens on further education colleges, but I am curious about why they should not be expected to tell a student that they are making special provisions for them, when the same student would need to be informed if there were doing a similar course in a sixth form.

Similarly, I wonder why the Government would not expect FE colleges to make information about their facilities and policies available to prospective students in the same way as a high school sixth form down the road would rightly be expected to. That seems to be an anomaly, so if it is intentional and I have not got it totally wrong I would welcome an explanation from the Minister to set my mind at ease.

Edward Timpson (Conservative, Crewe and Nantwich)

Clause 63 replicates an existing duty on mainstream schools and pupil referral units and requires the governing body, proprietor or management committee to tell the child’s parent or the young person that special educational provision is being made. It does not apply where a child or young person has an education, health and care plan, as they will already be aware that such provision is being made for them by virtue of the plan. Clause 64 requires proprietors or governors of institutions covered by it to prepare a report containing information on special educational needs, and we will come on to that in a moment.

I recognise that although the two clauses place duties on schools, and in the case of clause 63 on pupil referral units, they do not place the same duties on the further education sector. I am also aware of the briefing from the Association of Colleges, to which the hon. Member for Washington and Sunderland West referred, in which the association sets out its concern that such duties would place a significant bureaucratic burden on FE colleges and indicates that there are a number of impracticalities.

The Bill does, however, places important new duties on FE colleges, which significantly extend the rights of young people as part of the new 0-25 system. In brief, the duties are to co-operate with a local authority, to admit a young person if they are named in an EHC plan, to use best endeavours to secure special educational provision, and to have regard to the code of practice. Those duties are crucial in giving young people their rights under the new system, but we have not assumed that every duty placed on schools should automatically be placed on FE institutions. The latter operate differently and cater for a different age range, and young people in further education access their provision in a different way, choosing specific courses. The Association of Colleges made many of those points in its briefing.

Amendments 166 and 169 are to clause 63, which replaces section 317A of the Education Act 1996, which was introduced to ensure that schools kept parents informed about any special educational provision for their child. However, that has not always been the case, with parents sometimes being completely unaware that their children were receiving special educational provision. The position is different in FE colleges because young people experience for themselves what provision they receive, and will therefore know if it is different from or additional to that received by others. It will also be rare that a young person will receive special educational provision for the first time when in an FE college, and that will be more likely as we move to a 0-25 system.

We have maintained the current duty on schools because that is where special educational needs are most commonly identified in the first instance. We do not want to rush into imposing new duties on the FE sector, particularly where it is unlikely that FE institutions are in a position to have to take action in response to the duty. That broad position also applies to amendment 170. Further education colleges already publish details about their provision for students with special educational needs in their prospectus and on their website. Like schools, the FE sector will be included in the local offer, reinforced with a duty to co-operate with the local authority.

Having given those assurances, I urge the hon. Lady to withdraw her amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I am happy with the Minister’s reassurances, but I am still unsure about why the Association of Colleges has taken the position it has. I suppose I can talk to the association about that—it is not for the Minister to explain it. I beg to ask leave to withdraw the amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

I beg to move amendment 168, in clause 63, page 43, line 19, at end insert—

‘(2A) In performing its duty under subsection (2), an appropriate authority must—

(a) attempt to do so as soon the decision is taken;

(b) ensure that the child’s family or the young person are made fully aware of the reason for and the process behind the decision being taken;

(c) engage fully with the family or young person in making further decisions with regard to educational provision for the child or young person; and

(d) inform the local authority in which the child or young person residents.’.

I do not intend to spend a significant amount of time on the amendment because it is fairly self-explanatory. Opposition Members agree with the intention behind the clause: a child’s family or a young person should of course be told if special educational provision is being made for them. If a school or an individual teacher has reached the point with a child where it is felt that additional support is required, I would have thought that the first thing that teacher would do would be to arrange to meet the child’s parents to discuss the issue. Where a teacher believes a young person has the ability to comprehend it, I would have thought they would sit down with them to discuss the matter.

We probably should not need the clause at all; it should just be common sense, and in the vast majority of cases I am sure it is. However, the Department obviously feels that the clause is necessary to ensure that informing parents and young people happens in all cases; I think the clause should go a little further in describing the process that schools should go through.

As it stands, the clause would allow a school to start making provision in September but not tell the parents until the child’s end-of-year report card is sent out in July. Technically, a school would have fulfilled its duties under the clause if it put just a few words to that effect in the report card. While we are adding a stipulation about informing parents to the Bill, we should also put in the stipulation that parents and young people should be informed as soon as possible after a decision has been taken, and that the school should engage fully with them in explaining the reasoning behind the decision and the implications of it.

Of course, in an ideal world the parents or the young person themselves would have been part of that decision—it would be something that the school did with them rather than to them. That is the kind of partnership working that parents have every right to expect from schools, as well as from the other agencies with which they might come into contact. However, we do not live in an ideal world, as we know, which is why we are sat here, so while we are debating a clause that the Government obviously feel is necessary, let us make sure that it is strong enough to provide that, as far as possible, parents are given timely and comprehensive information about the education of their children.

Edward Timpson (Conservative, Crewe and Nantwich)

The amendment would place requirements on how an educational setting should inform a parent or young person that special educational provision is being made. The hon. Lady is, understandably, seeking to ensure that children and young people, and their families, are involved from the earliest point. The amendment also seeks to strengthen the involvement of parents and young people in subsequent decisions about that support. Not for the first time, I entirely share the intention behind the amendment; however, I am concerned about the practicality of writing the measures into primary legislation. Such a level of detail about parents and young people, and how they will be informed, is most appropriately dealt with in the code of practice.

As it currently stands, the clause replicates existing protections for parents and young people in current legislation, so that they should be informed when special educational provision is made. The expectation made explicit in the code of practice is that that needs to be the sort of engagement between the educational provider and the family that the hon. Lady is seeking to achieve. Paragraph 5.6 of the indicative code of practice states that the first steps taken by a school or other educational provider should be to ensure that

“parents of children are fully engaged, consulted and informed and agreement is reached on how the child’s needs will be met”.

The code of practice sets out an identical requirement with regard to young people themselves.

There is a significant risk that by including the suggested measures in the Bill we would limit a school or nursery’s ability to respond quickly to special educational needs and to the wishes of parents and young people. Organisations could interpret a legal duty as having to be fulfilled before appropriate support could be arranged. Delays in being able to notify the local authority or engage fully with the family could unhelpfully add to the delays that parents already report as being very frustrating and that we want to avoid at all costs.

We are at one with the intention behind the amendment. The code of practice makes clear how that intention should be fulfilled. I hope that, on that basis, the hon. Lady will feel reassured enough to withdraw the amendment.

Sharon Hodgson (Labour, Washington and Sunderland West)

We are learning more and more about how important the code of practice will be in ensuring that the legislation achieves what we all hope it will. Going forward, it will be interesting to see how everything we hope the code of practice will do will come to fruition, and whether it will be a strong, living and breathing document that people will adhere to and abide by in the way that we are discussing. We will continue to monitor the code of practice to ensure that it is as strong as we want it to be, but given the Minister’s assurance that that is the best place to address my concerns, I beg to ask leave to withdraw the amendment.