Draft
Special Educational Needs (Direct Payments) (Pilot Scheme) Order
2011
The Committee consisted of the following Members:
† Barclay, Stephen (North East Cambridgeshire) (Con)
† Campbell, Mr Ronnie (Blyth Valley) (Lab)
† Dunne, Mr Philip (Ludlow) (Con)
† Farrelly, Paul (Newcastle-under-Lyme) (Lab)
† Fullbrook, Lorraine (South Ribble) (Con)
† Garnier, Mark (Wyre Forest) (Con)
† Hodgson, Mrs Sharon (Washington and Sunderland West) (Lab)
† Jones, Graham (Hyndburn) (Lab)
† Lewis, Brandon (Great Yarmouth) (Con)
† Lopresti, Jack (Filton and Bradley Stoke) (Con)
† Love, Mr Andrew (Edmonton) (Lab/Co-op)
† McPartland, Stephen (Stevenage) (Con)
† McDonnell, John (Hayes and Harlington) (Lab)
† Michael, Alun (Cardiff South and Penarth) (Lab/Co-op)
† Teather, Sarah (Minister of State, Department for Education)
Wilson, Sammy (East Antrim) (DUP)
† Wright, Simon (Norwich South) (LD)
† Zahawi, Nadhim (Stratford-on-Avon) (Con)
Sarah Davies, Committee Clerk
† attended the Committee
Sixth Delegated Legislation Committee
Wednesday 18 January 2012
[Mr David Crausby in the Chair]
Draft Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2011
2.30 pm
The Minister of State, Department for Education (Sarah Teather): I beg to move,
That the Committee has considered the draft Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2011.
It is a great pleasure to serve under your chairmanship, Mr Crausby. The order enables the Secretary of State to create a pilot scheme to allow the testing of education direct payments in the Green Paper pathfinder areas. Let me set out why we are introducing the order.
Through the special educational needs and disability Green Paper, “Support and aspiration: A new approach to special educational needs and disability”, we have set out a radical programme of reform to improve the lives of disabled children, those with special educational needs and their parents and families. We have heard from children and young people, parents, professionals and voluntary and community sector organisations about the frustrations and bureaucracy of the current system, and we have set out our vision of how to make improvements.
Among the core commitments in the Green Paper are our proposals to introduce a new single assessment process and education, health and care plan, and to give every child with a statement or new plan the option of a personal budget by 2014. We want to give more families access to a personal budget, because of the benefits that it can bring. As we committed to do in the Green Paper, we have now appointed 20 pathfinders, run by 31 local authorities and their primary care trust partners, to test the development of the assessment, plan and personal budget proposals.
From the current individual budget pilots for children and the personal health budget pilots, we have evidence that a personal budget can give families more flexibility and empower them to make decisions about the support services that they use. Families who took part in the individual budget pilots, which began under the previous Government, reported that they felt they had more choice and control over their support services, as well as better access to and greater satisfaction with them.
One element of a personal budget is a direct cash payment to a family or carer in order to buy a service or piece of equipment for their child. In the individual budgets pilot, almost two thirds of families opted for a direct payment as part of their personal budget. That is why in the Green Paper we made a clear commitment to explore from 2011 how to increase the scope for making direct payments and to include funding streams from education.
To enable the pathfinders to explore that territory, as part of their work on personal budgets, the Government have created a new power in the Education Act 1996 to
establish pilots by order, enabling pathfinder local authorities as well as the existing individual budgets for families of disabled children pilot programme—sorry, that is a bit of a mouthful—to test the making of direct payments for those education services that fall within the scope of a personal budget. In the draft order, we have created a framework of mandatory safeguards to ensure that the power to make direct payments is exercised appropriately and with the best interests of children and young people in mind.The power was created through an amendment introduced in the other place during the passage of the Bill that became the Education Act 2011, and it enables the Secretary of State to make pilot schemes by order, using the affirmative procedure, to allow the testing of direct payments for special educational provision. I am grateful to the noble Lords for their scrutiny and questions in that process, and to the Special Educational Consortium, which provided helpful challenges and questions on behalf of the SEN sector during the passage of the amendment and the development of the draft order.
Today’s debate gives me the opportunity to explain to hon. Members the order’s purpose, and to hear and respond to their thoughts. The order creates a pilot scheme that will enable those local authorities in the Green Paper pathfinder and individual budget pilot areas to test the use of direct payments in respect of education for children and young people with SEN or a learning difficulty assessment. The pathfinders will do that in the context of their work on our proposals for personal budgets and, in that context, will also be able to offer direct payments for health and social care.
A direct payment under this order can be made to allow the recipient to buy goods and services, including, for example, special educational provision as specified in part 3 of a statement of SEN, such as equipment or time with a specialist professional; provision identified in a learning difficulty assessment as required to meet the young person’s educational and training needs; and transport services.
We have created a number of safeguards in the order, and they set out how the pilots must operate to ensure that the children, families, local authorities, schools and colleges taking part in the pilot are protected. It is important to stress that the pilots will be entirely voluntary for children, young people and families, and the local authority must obtain written consent before making a direct payment. That consent can be withdrawn at any time and with no risk to the provision to which the child and family are entitled.
The making of a direct payment does not waive, suspend or repeal any existing statutory duties, and pathfinders are, in any event, testing out new ways of working within existing statutory frameworks. The pathfinder local authorities will be required to provide appropriate information, advice and support to prospective recipients of direct payments, including written information on organisations outside the local authority that may be able to offer advice and assistance in connection with direct payments.
Schools and colleges will be able to decide whether to take part in the direct payments pilot, because the authority will have to ask their permission before making direct payments in respect of goods or services that will be used or provided on their premises. That, quite rightly, allows a school or college to have the final say about any staff who would be working on their premises.
Local authorities are required to ensure that the making of a direct payment is compatible with their efficient use of resources, and that it will not have an adverse impact on other services that the authority provides for children with a statement of SEN or a learning difficulty assessment.
Finally, local authorities will also be required to monitor and review the use of direct payments. This will enable local authorities to check that direct payments are being used to secure the provision intended for the child or young person, and to monitor whether the amount of direct payments continues to be sufficient. It will enable an authority also to identify whether direct payments are being misappropriated by the recipient, in which case the authority will be able to seek repayment. Regular monitoring is necessary to protect both the child and the public purse, and importantly those monitoring requirements will be in addition to the local authority’s existing statutory duties to review statements.
In order to maximise the benefits of such testing, the pilot will be subject to a full evaluation to capture information on the impact and effectiveness of direct payments. We expect interim evaluation reports to be published in April and September 2012, with a final report in March 2013.
To conclude, I hope hon. Members agree that direct payments for special educational provision have the potential to improve the quality and range of support available to children and young people with SEN and to their families, and I ask hon. Members to support the order.
2.37 pm
Mrs Sharon Hodgson (Washington and Sunderland West) (Lab): It is an honour to serve under your chairmanship, Mr Crausby. It is the first time I have done so, and I think you look good in the Chair.
I do not intend to divide the Committee or to detain it for very long, but I should be grateful if the Minister expanded on a few points. I thank her for copying me into a letter last week to the hon. Member for Beverley and Holderness (Mr Stuart), the Chairman of the Education Committee. It included an excerpt from the forthcoming analysis of responses to the support and aspiration Green Paper, focusing on personal budgets and direct payments, and is, I believe, available to other hon. Members in the Library. I had hoped that by now we would have had all the consultation responses and the next-step documents to pore over, as I believe the Merits of Statutory Instruments Committee has, but I am none the less grateful for her letter.
In the letter, the Minister divulges that barely one quarter of respondents to the consultation were overwhelmingly positive about direct payments, with most expressing serious concerns about widening inequality in terms of assistance and quality assurance, and about parents having inadequate support to commission the best services for their child. Those concerns echo the common themes of my many meetings with people in the sector, whether parents, professionals or providers, over the past year since the Green Paper was published.
Will the Minister therefore spell out the changes that have been made to the pilot scheme as a result of the consultation? If the schemes fail to change minds, will she reconsider whether direct payments and personal budgets are what parents really want?
The purpose of direct payments and personal budgets is to give parents the power to choose how best to support their children in learning and developing to the best of their ability as people. Choice is important, but to make good choices in any context people need two things: options from which to choose, and the knowledge to make a considered judgment on the best option for them or, in this case, their child.
Within the SEN sector, there has been significant concern to ensure that sufficient advice and support is provided to those parents who opt to receive direct payments. I am therefore pleased to say that paragraph 19 of schedule 1 seeks to address that issue, but its definition of “information, advice or…support” is not specific. I am sure that the Minister means parents to have access to well informed individuals in the local authority, not just to a leaflet or booklet, so I would be grateful if she could put that on the record and ensure that the guidance provided to local authorities is more specific.
I was also struck by paragraph 19(3), which deals with those organisations that charge for advising parents on commissioning services—advice that would, in itself, constitute a commissioned service. I would be grateful if the Minister elaborated on the organisations that she has in mind to perform that role. Will she ensure that local authorities in which charged-for advice is available do not consider the provision of such advice to be a fulfilment of their obligation under paragraph (19)(1), but still feel an onus to provide such support and advice themselves?
Further to that, I would be grateful also if the Minister told the Committee how we can ensure that the advice that individuals receive from external organisations, whether or not they pay for it, is good advice and does not in any way encourage parents to go down a particular route.
On ensuring that there are options from which to choose, the order does not make any provision to ensure that local authorities play an active role in securing sufficient services, so I should be grateful if the Minister could spend more time laying out how that particular bridge will be crossed, particularly for children who require uncommon or highly specialised support. It is easy enough these days for parents to look on the internet to source the best deal on goods, even if those goods have to be custom made, but it will not always be so easy to find the right service within a certain area, let alone two, three or four providers of that service from which to make an informed choice.
As the Minister knows, market forces do not operate where there is little or no competition, so how will she ensure that services bought by direct payment represent good value for money for the parent, and, importantly, for the taxpayer, in areas where it may be viable for only one or two organisations to provide certain services?
That takes me back to quality assurance. As with the quality of advice provided to parents by external organisations, what role will there be for local authorities in ensuring that providers of goods and services give the best possible service to the recipient of the direct payment, again particularly where there may not be sufficient providers in a certain area to ensure that competition drives up quality?
I hope that the Minister is able to address those important points today, as well as in the resulting
documentation going to local authorities participating in the pilots, and especially in the much anticipated next steps document.2.43 pm
Paul Farrelly (Newcastle-under-Lyme) (Lab): I have three questions for the Minister before the Committee concludes its consideration. Special educational needs have been a particular interest of mine during my 10 years in the House.
First, I note that Staffordshire and Stoke-on-Trent are not on the designated list. What determined the choice of authorities on the list? Secondly, could the Minister confirm that where the pilot operates, it is optional for parents and is not in any way mandatory? In the past, we have often seen personal payments, beyond the rhetoric, used as a cost-reducing mechanism, which has been a particular issue for adults with special needs and for day care centres in Staffordshire.
Thirdly, has the Minister considered the impact that the operation of the pilots might have on the viability of special schools in the designated areas? Has she requested impact statements from the authorities before they implement the scheme?
2.45 pm
Sarah Teather: I am grateful to hon. Members for their questions and for making them so focused. I will do my best to answer in as much detail as I can.
The hon. Member for Washington and Sunderland West asked why we were going ahead with the pilot, if it was not perceived to be popular. It is worth stating that in the documentation we provided there are some specific concerns. Our experience of individual pilots in the field of health and social care was that when offered that opportunity, many parents chose to take it.
People were anxious about whether they would have enough support and whether the scheme would be mandatory or optional—the point made by the hon. Member for Newcastle-under-Lyme. Some people misunderstood what we were saying; we were clear that it would be optional. Our intention, when the scheme is rolled out, is that it continues to be optional. It is not intended to be optional only during the pilots. When it becomes law, everybody should have the option of a personal budget.
Similarly, direct payments are only one possible component of a personal budget. There might also be a notional budget or a professional who is a budget holder. There are all sorts of different possibilities. We are bringing forward the order to ensure that local authorities have the full range of options available and can test them and work with parents. We need to understand some of the questions just articulated by the two hon. Members. The only way to understand those is to test the measure, learn from it and ensure that when we put forward legislation in future, we fully learn from the experience.
The hon. Member for Newcastle-under-Lyme made a point about the wider impact on other services. The scheme is unlikely to have an impact on special schools, but there are particular issues about commissioning services. If local authorities hold a particular service, yet individual parents start to commission services
from elsewhere, we need to understand the balance and how different local authorities respond to what happens.Our experience of individual budget holders in the field of health and social care is that people responded well. That scheme worked extremely well and most parents are happy with it. However, we need to test the proposal, as it has never been done in educational services before. That is why we are running a pathfinder and pilot.
With regard to the advice that we expect to be available, I do not want to be too specific about the type of advice local authorities should provide. It will vary according to the individual. Some families with experience of operating personal budgets through the health and social care pilots may feel confident, know exactly what they want and need minimal support. Their child may be older, and they may have significant experience and frustration in fighting different parts of the system, and know precisely which bit of equipment they want. There may be others with complex needs, who require significant support. The pathfinders are testing all sorts of things, such as the role of the voluntary sector, key working and how that might function on the ground, as well as providing specific advice, which may be written, in person or by telephone. We need to let local authorities go ahead with that and see how they get on, working with health providers in the area as well.
The hon. Member for Washington and Sunderland West asked about commissioning and ensuring that appropriate services are available in an area. She asked two questions on that topic; the other one was about monopolies. We will outline some of the issues later when we publish our response to the Green Paper. We are doing a lot of thinking on the issue, and are in active discussion with colleagues in the Department of Health about how we can ensure that services commissioned are related to the needs of families in a particular area. We are aware that that is an existing problem. Personal budgets will help with that because they will focus minds. That is not all we are doing, and we will say more at a later stage.
I understand the points the hon. Lady made about monopolies and value for money. As I said before, direct payment is not the only option. Personal budgets include a range of options, including notional budgets, which may be more appropriate for some services. I imagine that if the service has only one provider, it does not make an awful lot of sense to provide a direct payment, but local authorities will need to work that out according to their area, because areas vary. In some places, there is significant provision of certain types of services, and in others there is a difficulty, which is exactly why we must ensure that we are commissioning better.
The hon. Member for Newcastle-under-Lyme asked which local authorities were involved, and how that was decided. We invited local authorities to put in bids, working with health providers, about what they wanted to test. I am afraid that I do not have the necessary information to hand to say whether Stoke-on-Trent and Staffordshire put in a bid, but I can drop him a note if he would like me to. If a bid was not submitted, he can pester his local authority appropriately as to why.
We made our choice on the basis of the quality of what local authorities were trying to test, and we were looking for a range of different relationships. Everyone
is testing the education, health and care plan, but different authorities are testing different aspects of the Green Paper. It is not possible to test it all in particular areas. We were looking for a group of authorities, some with well-developed links with health, because we need to improve such links, and others with less well-developed links but with good plans for ensuring that they link up services better on the ground.The hon. Lady asked how we can ensure quality. As I outlined in my opening remarks, we are allowing local authorities to take a role in deciding what kind of services can be bought. The intention is not for them to have a veto on choice for families, but for them to have a role in ensuring that services they know to be unsuitable are weeded out, so that the services that are available will not be detrimental to the family concerned.
I hope that I have been able to answer as many of the questions as possible. I am incredibly grateful to the Committee for its support, and to the hon. Lady for indicating that she will not divide on the motion. We want to test the scheme as quickly as possible, learning lessons from it to inform future legislation. I can assure the hon. Lady that we will respond to the Green Paper very shortly. We wanted to ensure that we had given due weight and consideration to the many complex issues raised in the consultation, and we are nearing the final stages. We are not quite there yet, but it will be worth waiting for, I hope. I commend the order to the Committee.