Children and Families Bill

Memorandum submitted by the National Deaf Children’s Society (NDCS) (CF 16)


The National Deaf Children’s Society (NDCS) is the leading charity dedicated to creating a world without barriers for every deaf child. There are over 35,000 deaf children in England. We have a particular interest and expertise in issues facing children with special educational needs (SEN) . Our response to this call for written evidence has been informed by extensive consultation [1] with parents of deaf children and focuses on part 3 of the Bill.

Clause 24: duty of health bodies to bring certain children to local authority’s attention

1. This clause only applies to pre-school deaf children. Many deaf children become deaf later in life. To ensure that none fall through the net and to promote greater collaboration between health and education for children with SEN across all ages , NDCS recommends this duty on health bodies applies to all children who may potentially have SEN .

Clause 27: Duty to keep education and care provision under review

2. We believe that the Bill will be fatally undermined by local authority spending cuts and that it would be dangerous to implement these reforms without ensuring there is sufficient funding in place. We therefore believe clause 27 should be amended to place a duty on the local authority to consider if there is sufficient funding in place to deliver the provision required to meet the needs of children with SEN.

3. NDCS has established through Freedom of Information requests to all 152 local authorities, in the 2 years leading up April 2013, 1 in 3 local authorities will have cut the vital services that deaf children rely on, including Teachers of the Deaf and speech and language therapists. We also know that in 2012, government figures show that 63% of deaf children failed to achieve 5 GCSEs (including English and Maths) at grades A* to C compared to just 31% of children with no identified SEN.

3. Anecdotal evidence from the SEN pathfinders also suggests that the proposals are not cost-neutral:

· The use of key workers in supporting families with their E ducation, Health and Care Plan (E HCP ) and personal budgets presents significant resource implications for local authorities and it is unclear how this additional role will be funded without drawing funding away from existing services. One Teacher of the Deaf has told us that her work to support families with the new EHCPs is extremely time-intensive and not sustainable without additional capacity.

· Unless safeguards are put into place (see comments on clause 48) , personal budgets may lead to reduced funding for existing services. This may need to be offset by increased funding to make sure that existing services and other parents do not suffer as a result.

· Increased duties to provide EHCPs to young people aged 16 to 25, as well as to assess young people in this age group for EHCPs, will place additional pressure on local authority budgets. In addition, the raising of the participation age and impending funding changes mean that local authorities will have increased funding responsibility for young people aged 16-25 with SEN . NDCS is not convinced that the Government has budgeted adequately for these increased responsibilities.

4. Parents have expressed considerable anxiety about these changes. In a NDCS online survey, only 6% believed that the proposed changes would mean that deaf children in their area would get better support. 72% felt that the real aim was to reduce spending.

Clause 30: Local offer – improving transparency

6. In our focus group work with parents of deaf children, parents supported proposals to improve transparency. They also highlighted the difficulties they had experienced in accessing relevant information about support specifically for deaf children to date.

"We have fallen across possible choices and information quite often by chance."

"I got an information pack when my child was diagnosed, but half of it wasn’t relevant to deaf children and it didn’t include information on the local deaf school."

7. To ensure the local offer provides parents of deaf chi l d ren with more information about local provision and empower s them to hold services to ac count for what is not available, we believe that clause 30 of the Bill should require local authorities to:

· Show information by type of SEN and disability, so that parents of deaf children can find information relevant to them.

· Must be of a set format across England so that parents can easily compare across different local authorities

8. We also believe that local authorities should first conduct a "gap analysis" of their provision when developing a local offer. This is to identify where provision is needed to meet the needs of deaf children and other children with SEN. This could be achieved by explicitly linking the duty to create a local offer with the existing duty in clause 27 to keep SEN provision under review so that any review precedes any development of the local offer.

Clause 30: Local offer – developing a ‘national offer’

9. Whilst parents welcome greater transparency, they also want to be confident that their child will get the basic support that any deaf child needs . Too many deaf children are being denied th is support, at considerable cost to families. NDCS believes this is unacceptable. We therefore believe that the local offer needs to be underpinned by a national offer for all deaf children, setting out basic minimum requirements that each local authority should ensure is provided. This might include:

· Access to a specialist education service for deaf children that is adequately staff to meet the needs of all deaf children in each area and meets quality standards.

· All specialist units / resource provisions for deaf children to be headed by a qualified Teacher of the Deaf

· Specialist equipment, including radio aids, to be provided, as required in each local authority

· Spectrum of provision or appropriate pathways to nearby provision available to meet the needs of all deaf children in each area

· Access to communication courses, including sign language, for all parents of deaf children

· Publication of data on outcomes

10. We believe these are the basic essentials and it’s of deep concern that in many areas, this is simply not available. In our online survey, over 1 in 10 families said they had already moved to access better services for their deaf child. One family told us how their deaf son had moved between 4 different schools, involving the whole family moving from Hampshire to Lincolnshire, before they could be confident their deaf child was getting a good education. The son’s father told us:

"All of the delays my son has had to endure have had a cumulative effect on his life and where he is today. It is immeasurable how much damage has been done to his potential."

11. In their pre-legislative scrutiny report on SEN and the Bill, the Education Select Committee said:

"The importance of getting the local offer right cannot be overstated... The weight of evidence received by our Committee clearly supported minimums standards and we recommend that the Pathfinders be used to inform what should constitute minimum standards for local offers, particularly to address the provision that will need to be able available in schools to support pupils with low to moderate SEN without EHCPs."

12. We do not believe that the Minister’s response to the report a dequately addresses this point and we would like to ask the Committee to further raise this issue.

Clauses 36 to 49: Education, Health and Care Plans (EHCPs)

13. NDCS welcomes the reassurance from the Department for Education that it intends to preserve existing statutory protections. However, there are a number of areas where further detail is needed, particularly in relation to clause 36 and duties on local authorities to respond to parents within certain timescales. NDCS supports the suggested amendments put forward by IPSEA in this area.

14. Having this detail in the Bill will be essential to ensure that EHCPs are as robust as a statement of SEN. NDCS continues to be alarmed and concerned by examples coming out from SEN pathfinders. In one area, a parent provided us with a copy of their statement and a first draft of their EHCP, allowing us to compare between the two. This comparison has confirmed some of our worst fears; that many EHCPs are being produced which are lightweight, unsubstantive and a clear downgrade next to the statement. Key concerns include:

· Compared to the statement, very basic and unspecific information about the child provided in EHCP. For example, no information about child’s placement or current levels of attainment was shown. Contained vague statements like "child is happy... and progressing at school" with no detail to support this.

· Driven almost entirely by parent and child without real professional input. Appeared that only the mother and the child’s Teacher of the Deaf is involved so far. No apparent contribution from health or social care professionals.

· EHCP failed to adequately describe the child’s SEN and then to identify the educational provision needed. Only two actions were listed and were not particularly in-depth or well-founded. For example, it noted that child sometimes experiences frustration but did not explore whether this is, as likely, due to communication barriers, and how these barriers could be resolved. No actions listed relating to improving educational outcomes, even though this was identified as a priority by parents.

Clause 45: Ceasing to maintain an Education, Health and Care Plan

15. This clause indicates that a EHCP will cease if a child or young person has achieved the outcomes set for them. NDCS believes this is a flawed approach; for many deaf children, it is only through ongoing support that they will continue to achieve the outcomes set for them.

16. Parents often express frustration that their child often has to fall behind before they can get the support they need:

"Although our son made extremely good progress in his first year in his new school, this seemed to be a trigger to reduce the levels of assistance from all other departments. His speech and language therapy stopped, everything stopped. It was as if he no longer needed it and he just dropped, his development went completely backwards."

17. NDCS also believes the wording could also introduce perverse incentives for local authorities to set ‘easy’ outcomes for children to achieve in order to end the EHCP quickly. We recommend that the clause be amended to make it clear that a local authority can only cease a Plan on this basis if ongoing support is not needed to maintain those objectives.

18. Separately, c lause 45 allow s local authorities to ‘have regard to age’ when deciding whether to re-assess or grant plans for young people over the age of 18. This risks local authorities denying plans to 18-25 year olds who require continu ous and coordinated support to ac cess educational opportunities and achieve the outcomes their P lans were designed to support them to achieve.

19. NDCS therefore believes the Bill needs to be stronger in ensuring the Department’s original vision of a 0 to 25 EHCP is realised. We believe that a local authority should only be able to cease a Plan for someone over 19 if:

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

(b) a transition plan has been completed in partnership with the young person and their family and other agencies, which supports their progression into the next phase, including H igher E ducation or employment.

Clause 48: Personal budgets

20. NDCS believes that the proposals around personal budgets in the draft Bill could risk undermining existing provision and will result in unintended consequences, unless carefully implemented. NDCS is concerned that small services for children with low incidence needs could be disproportionally hit if their funding is reduced as a result of delegation of funding to parents. This would, in effect, reduce choice to other parents of deaf children.

21. The SEN (Direct Payments) (Pilot Scheme) Order 2011 for SEN pathfinders set out a number of important safeguards around personal budgets, including a requirement that there be no negative impact on existing services. These safeguards do not currently appear on the face of the draft Bill.

22. Given that we still know relatively little about the impact of personal budgets in the SEN pathfin d ers, NDCS believes it would be prudent to amend clause 48 to replicate these safeguards.

Clause 50: Education, Health and Care Plans : appeals

23. Many deaf children and young people rely on health services such as speech and language therapy or audiology services to achieve their educational potential. We welcome the recent announcement that Clinical Commissioning Groups (CCGs) will be subject to a duty to provide support set out in a child’s EHCP. However, we still need to hear more about how this will be enforced and the accountability framework.

24. Feedback from the SEN pathfinders confirms that a specific and strong bite against health services to provide what is set out in a Plan is needed. A number of parents and professionals have told us of their difficulties across several pathfinders in securing meaningful engagement from health professionals. For example, in one area, a child’s lead paediatric consultant had been invited to contribute to a child’s assessment for an EHCP as well as representatives from audiology, speech and language therapy and CAMHS. None did.

25. We strongly believe that a single Plan needs a single means of redress. Parents want to be able to resolve any issues quickly and simply. We therefore believe that clause 50 of the Bill should be amended to give parents the right to hold health services to account via a SEN and Disability Tribunal in the same way as against education services.

What’s missing from the Bill?

26. The Department has argued that the local offer will improve transparency. However, in one area, there is virtually no information available to parents: information on the quality of specialist SEN support services. We believe the Bill misses an important opportunity to improve outcomes for children with SEN by requiring Ofsted to inspect specialist SEN support services.

27. In the SEN Green Paper, the Department for Education recognised the vital role that specialist SEN services have to play. This is particularly the case for the 80% of deaf children who are taught in mainstream schools where head teachers and SENCOs are unlikely to have the experience or expertise necessary to judge what constitutes effective support for deaf children. Parents are therefore often surprised that these same SEN educational services are subject to no real formal scrutiny in the same way that schools are.

28. We believe that many Heads of Services will support this proposal. One Head of a service for deaf children told us:

"I wholeheartedly agree that specialist services should be inspected by Ofsted. All teaching should be inspected to ensure high quality, rigour and recognition of the specialist nature of the work that specialist teachers do as well as raising the profile of deaf education and provision. This would also contribute to narrowing the gap between deaf children and mainstream’s children attainment."

29. NDCS therefore argues that the Bill could be substantially improved by the inclusion of new clauses that would require Ofsted to inspect specialist SEN support services.

March 2013

[1] The full paper on what parents have told us they think about SEN reform is available at:

Prepared 8th March 2013