AEP amendment on special academies debated in the House of Lords on December 17th 2013
As members will know we expressed concern about plans in the Children and Families Bill and the draft SEN Code of Practice which would allow a CYP with SEN but without an EHC Plan to be admitted to special academies/free schools if they had the same “type of SEN” as those which the special free school/academy was designated to admit. Baroness Howe agreed to lay down an amendment to the Bill when it was debated in the House of Lords – please find below a report of that debate which also included a range of other issues:
“Debate on Special Academies
Baroness Howe moved the AEP’s amendment in order to raise concerns that draft regulations under Clause 34 allow a child or young person to be placed in a special school without an Education, Health and Care (EHC) assessment and plan on an indefinite basis, provided that the placement is reviewed termly. Reading from the AEP’s briefing, Baroness Howe expressed her fear that not enough safeguards will be in place to stop children or young people being admitted without their needs being fully assessed and agreed by a range of professionals with the child or young person and their parents. Baroness Howe reiterated the concerns she expressed in Grand Committee that the proposal contradicts the Government’s stated commitment to apply the SEN framework equally to maintained schools and academies, as well as bypassing the decision-making process built into an EHC plan which gives parents a right to request the school at which they would like to have their child’s needs met, and a right of appeal against the decision of the local authority.
Baroness Howe added that the draft SEN Code of Practice confirms that an educational psychologist on their own might support the placement of a child or young person in a special academy, but commented that “it is unlikely that an EP on their own would be happy to advise in this way”. She also stated that “there could also be a situation where special academies increasingly enrolled pupils with less complex needs, which would beg the question of where children with complex needs would go”, as well as that it could result in medical labels determining whether a child would secure a place in a special academy. Baroness Howe insisted that if this sub-clause is to remain regulations should also state that parents must have ready access to specialist advice that may fully explain both the potential beneficial and negative outcomes of any such decision for the child or young person. Lord Low spoke in support of the amendment and expressed concerns that this creates a “high risk of inappropriate placement” and “risks a return to a time when parents could be pushed into accepting a special-school place for their child, not because it is the best placement for them but because the mainstream school had not, for whatever reason, provided the appropriate support”.
Lord Nash responded that Clause 34(9) of the Bill, which the AEP’s amendment proposed to remove, is “designed to improve provision for those without plans and reflects the Government’s general desire to encourage innovation and promote greater choice and flexibility in their free schools and academies programme”. He said that the Government will ensure safeguards are in place to prevent these scenarios occurring, including that a special academies funding agreement must stipulate that it may admit only children or young people without plans who had a particular type of SEN set out in the agreement. He confirmed that any changes that suggested reducing the number of places for children with statements to enable the admission of children without statements would not be approved unless the case was supported by the local authority, by parents, and a lack of demand for statemented places could be demonstrated. The Minister added that a child or young person would only be admitted to the academy if their parents or the young person had applied to go to it, and at their particular needs and their admission should be supported by a relevant professional opinion, such as that of an educational psychologist.
Lord Low’s amendment to place a legal require on local authorities to ever-increasingly encourage access to an inclusive school system for disabled children was pushed to a division. Shadow Education Minister Baroness Hughes offered her support for Lord Low, describing it as a “matter of legislative housekeeping” that would “drive the major strengthening of the code of practice on inclusion which is required”. The amendment was defeated.
Expanding the scope of the Bill to include disability
Lord Nash introduced Government amendments to expand the scope of the Bill to include disabled children and young people within the Bill’s joint commissioning arrangements, review functions, and local offer duty, acknowledging the concerns raised by the Every Disabled Child Matters campaign. The amendment included an extension of duties for local authorities to identify disabled children and young people, a duty on health bodies to inform local authorities and parents that a child may have a disability and a duty relating to the integration of education and training provision with healthcare provision and social care provision for children and young people with SEN and disabled children and young people. The duties on local authorities and their partner commissioning bodies to make joint arrangements for the commissioning of education, health and care provision for children and young people with SEN was also amended to include disabled children and young people. The expansion did not go as far as including disabled persons with EHC Plans, which Shadow Education Minister Baroness Hughes commented was disappointing, but she did welcome that the Government had come “part of the way”. It is also worth being aware that the definition of disability applied to the provisions covered is to be that given in the Equality Act 2010.
Wholly or mainly issue resolved
Following concerns that had been raised regarding the issue of “wholly or mainly”, relating to the circumstances in which provision that would otherwise be health or social care provision should be treated as special educational provision, the Government introduced amendments to further clarify their intention to maintain the current case law following the legal advice provided to them by the Royal College of Speech and Language Therapists. Although Lord Ramsbotham was not present to move his amendment that offered alternative wording, Crossbench Peer Countess of Mar spoke in his stead and conveyed support for the Government amendment on this issue.
Joint Commissioning for children and young people without plans unresolved
Lord Ramsbotham was not present to put forward amendments he had tabled with the intention of ensuring that those the joint-commissioning duties are expanded to those without EHC Plans, as well as being made transparent. Speaking for the Government, Baroness Northover said that this was unnecessary because of the responsibilities on education and health bodies to support children’s education, health and care needs, emphasising that the NHS is a comprehensive universal service and already has an “absolute requirement” to meet the health and care needs of children and young people. Baroness Northover said that the integration duties the Bill legislates for will also ensure the health and education bodies work together to meet those needs.
SEN support in schools
SEN support in schools was discussed by Lord Nash briefly in a discussion on inclusion. The Minister said that chapter 6 of the draft SEN Code of Practice provides strong guidance to all mainstream early-years settings, schools and colleges to ensure they have high expectations for all pupils and students, provide high-quality teaching, have clear systems for identifying those who need additional support and provide that support as quickly as possible. He commented that Chapter 6 of the draft SEN code of practice makes it clear that schools are responsible for setting their own priorities for the continuous professional development of their staff and the Government recognise the key role played by the SEN co-ordinator in this and in other ways. Lord Nash seemed to be setting out the basis of the Government’s response to concerns about these issues when they are raised at the next day of Report on 7th January.