Clause
49Persons
detained in youth accommodation: further
provisions Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this it will be convenient to discuss the
following: Government amendments 351 and
352. Government
new clause 17—Persons detained in youth accommodation:
further
provision. Government
new clause 19—Release from detention of child or young person
with special educational
needs.
Mr.
Hayes: I am delighted to be called to speak on this
clause, Mr. Chope. No doubt the Minister will want to draw
on her expansive notes to explain the purpose of the amendments and new
clauses.
I want to draw
new clause 17 in particular to the attention of the Committee. It will
insert new chapter 5A, entitled “Persons detained in
youth accommodation”, into the Education Act 1996. The new
clause goes a considerable way towards addressing some matters that we
raised earlier today, as the Minister is acknowledging. It answers some
of the questions that I raised on clause 47 and is therefore
welcome. However, I have a number of particular questions that I hope
she will
address. Proposed
new section 562B(3)(b) is of particular concern to the Standing
Committee for Youth Justice, which highlighted the short period in
which young people are kept in detention and the necessity of planning
their reintegration on the first day of release. Will the Minister give
guidance as to how that is likely to be ensured, given the wording that
she is proposing is,
“where it
appears to the home authority appropriate for them to do so, making
arrangements for provision, on the person’s release from
detention—(a) of
education”? That
is an extraordinarily vague proposal when what is needed is clear
guidance. Where it appears for the home authority to act appropriately
does not assure me that the preparation for the release of the young
person and a reintroduction into society is going to be dealt with the
rigour and certainty that we would expect.
The second
question relates to proposed new section 562C(3). We welcome
provision for learners with learning difficulties but this again is
quite weakly and, in my judgment, poorly worded. It says
that, “The
host authority must use best endeavours to secure that appropriate
special educational provision is made for the detained
person”. What
precisely does the Minister mean by “best endeavours” and
what does she expect the outcome of these best endeavours to be? Will
statemented children with special needs and other children with special
needs get the educational provision they so desperately need? Where and
how will “best endeavours” be more clearly
defined?
My third
query concerns, in appropriately chronological fashion, proposed new
section 562C(4)(c). This gives the power to the host authority to
assess whether the special educational provision in a statement of a
learner remains appropriate and to take amending steps as necessary.
With no provision for updating the statement in this clause, how will
the authority judge whether the existing statement is appropriate or
accurate or, indeed, inaccurate? Does this not simply mean that local
authorities will judge what is necessary according to what they can
provide? There are real differences between authorities in terms of the
number of statements they issue, the speed with which statements are
dealt and the effectiveness of their provision. It seems the Bill will
enshrine those vagaries in law in an unhelpful way. We need clear
guarantees about how local authorities will behave and what will be
expected of them. I am not sure that the Bill as currently worded does
that.
My fourth
question concerns proposed new section 562E(1). The SCYJ and
the AOC have both highlighted the need for sharing information to
ensure best provision for those in detention. With this in mind, why
does the clause
say, “Any
person who has provided education or training for a detained
person...may provide information relating to the detained person
to—(a) the home authority, or (b) the host
authority.”?
Surely, the Bill should
say “must” rather than “may”. Is this not
again rather weakly and ineffectively worded? The provider should be
required to share information or the weaknesses of those LEAs who drag
their feet will have a detrimental effect on the interests of learners.
If there remains uncertainty about LEA involvement of the kind that I
highlighted in our discussion about clause 47 and if these Government
proposals are designed to firm up the provision to respond to those
criticisms—and I guess they would not have been tabled if that
was not the intention—then surely they need to be fit for
purpose. I am not sure that they are as
drafted. You
will be pleased to know that this is my final question, Mr.
Chope; the Minister will certainly be pleased. It deals with proposed
new subsections 562G (5) and (6). We welcome the requirement
on a host authority to notify the home authority if it believes that a
child in detention in its area has special needs, but could the host
authority not be given the right to assess those needs, in line with
existing, well established statementing practices? In raising these
questions we want to ensure that the Government’s proposals are
sufficiently rigorous and robust to improve the legislation along the
lines that most third parties and we, the Opposition, feel is
necessary. 5.30
pm
Sarah
McCarthy-Fry: As drafted, clause 49 places a duty on the
child or young person’s home local authority to promote the
fulfilment of that person’s learning potential while in custody
and on their release. Amendment 344 removes clause 49, and
new clause 17 replaces it and inserts proposed new chapter 5A into the
Education Act 1996. Through new section 562B, the chapter also places a
duty on the child or young person’s home local authority to
promote the fulfilment of that person’s learning potential while
in custody and on their
release. The
proposed new chapter also includes a power to regulate to modify
provisions of the 1996 Act in how they apply to persons detained in
juvenile custody. That is necessary where it is inappropriate for
certain provisions of the 1996 Act to apply. For instance, the duty on
parents to cause children of compulsory school age to receive full-time
education should be disapplied while the child is in juvenile
custody. The
new chapter makes further provision for persons detained in relevant
youth accommodation and significantly strengthens the requirements
relating to persons in juvenile custody with special educational needs.
If, prior to detention, a person had a statement of special educational
needs, proposed new section 562C now requires the host LEA to use its
“best endeavours”. The hon. Member for South Holland and
The Deepings asked about that phrase; it reflects the fact that it will
not always be possible to supply the exact provision in the statement
and it is the same as the duty on governing bodies of maintained
schools. We will be issuing guidance on what it
means.
Mr.
Hayes: That is interesting. It highlights the reason why I
raised the matter in the first place. When a statement is issued, as
the Under-Secretary knows, there is an obligation on the authority to
meet the needs identified in that statement by providing adequate
provision.
Should it be impossible to make that provision within the local
authority’s compass, the local authority must acquire
additional resource from outside its boundaries. Why should that be
different for people who are detained?
Sarah
McCarthy-Fry: A statement may require a young person to
attend a particular school or include provision for one day a week at
an FE college. By virtue of the fact that these young people are
detained in a custodial environment, it may not always be possible to
deliver everything in the SEN statement, which is why we have the words
“best
endeavours”. Proposed
new section 562C also requires the authority maintaining the statement
to keep a copy of it while the person is detained. New section 562F
provides for the transfer of SEN statements and makes provision to
ensure that the host authority is aware that an authority was
maintaining a statement of special educational needs for a person prior
to detention. An LEA maintaining a statement for a person who then
enters juvenile custody must, on request by the host LEA, send a copy
of the statement to the host authority. The provisions are designed to
ensure that the relevant authority has a copy of the person’s
statement so that it can exercise the duties set out in the new
chapter. When
the person is released, new requirements have been put on the host LEA
to inform the home LEA of the person’s release or, if different,
the LEA that was responsible for maintaining the statement prior to the
person’s detention. The provisions will help to ensure that the
appropriate authorities are aware that the person has been released so
that, where necessary, special educational provision can be made for
the person in the
community.
Mr.
Hayes: The hon. Lady says that the LEAs will be required
to make information available, but the wording that she proposes says
that they “may” provide information, not that they
“must” or are required to or should. How does she
reconcile what she has just said with what it says in the
amendment?
Sarah
McCarthy-Fry: A statutory duty cannot be imposed without a
means of enforcing it, so it would require criminal sanctions when a
body is not a public body. I will undertake to write to the hon.
Gentleman to clarify that.
New section
562A also facilitates the transfer of relevant educational information
relating to the detained person in order to ensure that information
relating to the person’s prior education and particular needs
can be transferred between appropriate persons so that education and
training in juvenile custody can, as far as possible, meet the young
person’s needs and build on their prior
learning.
Mr.
Gibb: Will the Minister confirm what that relevant
educational information will include? Can she confirm that it will not
include confidential notes of pastoral- type discussions
between the former teacher and the young
person?
Sarah
McCarthy-Fry: I envisage that it will be educational
information, but we will clarify that in guidance. We do not envisage
that it will include anything other than educational
information. Specifically,
the new clause enables those providing education or training for the
young person prior to or during their detention in juvenile custody to
share educational information about the person with the home and host
LEA, and requires LEAs to comply with any requests for information as
soon as practicable. It also requires Welsh Ministers to provide a copy
of any relevant assessment reports on request by a home or host LEA.
All the provisions will help to ensure that relevant information about
the education of children and young people in custody can be
transferred so that we can achieve the ends that I am sure we all
desire.
Mr.
Hayes: In respect of new section 562G, there may well be a
difference of approach between the home and the host authority. The
approach that different authorities take to statementing and special
educational needs varies immensely. Why should the host authority not
be given a right to carry out an assessment of needs along the lines
that I propose? I do not understand why that would not be a positive
measure in the interests of the young
person.
Sarah
McCarthy-Fry: The practical answer is the length of time
that young people spend in custody, which in many cases is limited. The
time needed for an assessment would be better spent on using the
information that we have and ensuring that they have some education
while they are in custody, which is the point that was being
made.
Mr.
Hayes: With respect, if the host authority has a
responsibility for the young people and it is uncertain about the
information that is passed to it about their needs and the provision
necessary to cope with those needs, any responsible local authority
would want to assess the young person concerned. It might not be a full
re-statementing, but some kind of assessment, to ensure that it was
living up to its statutory responsibilities in terms of providing
adequate education or training. That would be fundamental. If I were
running a host authority, I would certainly want that to happen, and I
am sure that the Minister would too.
Sarah
McCarthy-Fry: I do not disagree. I thought that the hon.
Gentleman was referring to a statutory assessment in the statementing
sense. We will certainly develop in our framework guidance something
like the more informal assessment to which he
refers. I
would like to move Government amendment 351, a technical
drafting amendment consequent on amendment 344. I would also
like to move Government amendment 352, which relates to the provisions
in new clause 17 requiring local education authorities with relevant
youth accommodation in their area to use their best endeavours to
secure appropriate special educational provision for persons detained
in juvenile custody. Specifically, amendment 352 amends section 207 of
the Education Act 2002 to enable regulations to be made allowing the
host LEA to recoup the cost of making appropriate special educational
provision from the
authority in whose area the person belongs. That will help to ensure
that the host LEA can meet the special educational need of persons in
custody and recover the costs over and above the core education costs
in
custody. I
would also like to move new clause
19—
The
Chairman: Order. I must interrupt the hon. Lady for a
moment. Strictly speaking, she will have the opportunity to move the
amendments later, formally. At the moment, she is just speaking to
them.
Sarah
McCarthy-Fry: I stand corrected, Mr.
Chope. New
clause 19 will insert new section 312A into part 4 of the
Education Act 1996. It suspends part 4 of the Act while a person is
detained in relevant youth accommodation, meaning that an LEA
maintaining a statement for a child does not have to continue doing so
while the child is in juvenile custody. In effect, it means that the
duty will be suspended during that time.
However,
proposed new section 312A and the amendment to it also provide that a
statement of special educational needs maintained before a
child’s detention must be revived and reviewed on their release.
We believe that the amendment provides a significant improvement in
policy for children with SEN in juvenile custody. Currently, children
who have statements of special educational needs on entering custody
have their statements stopped, and they are not necessarily picked up
again on
release. We
believe that it is essential that education and training in custody
meet the needs of detained children and young people as far as is
practical within the custodial environment, but we are also aware of
the need to consider the practicalities of arranging and delivering
highly specialised and discrete provision for persons in custody, the
majority of whom spend only short periods
there.
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