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I am also concerned that the extra barriers faced by disabled people in developing their skills are most likely to incur additional costs that could be judged as disproportionate. LEAs may refuse a service by arguing that the provision is either unsuitable or unreasonable, but where these arguments have failed, I strongly believe that they should not have this further get-out option. The Government have argued that new Section 15ZA(5) specifically states that the provision is not to be viewed as giving rise to disproportionate expense just because it is more expensive than something comparable. In practice, this does not set any restrictions on how LEAs can define "disproportionate expenditure". On the contrary, where a learner has identified suitable education provision that meets their reasonable needs, they should have the right to access it whether or not they are disabled.
We do not expect a blank cheque, of course. However, the issue of expense often arises where the needs of a learner with a disability can be met only in an expensive, out-of-county residential placement. Where this happens, we believe the problem to be the lack of good quality local options rather than a person with a disability claiming disproportionate resources. Until the system can offer a better choice of provision, we hope that individual disabled people will not have their life chances curtailed because the only suitable placement is relatively expensive. In terms of redress, during the Committee debate in another place, the Government indicated that an individual may challenge an LEA if they feel that the authority is wrongly using disproportionate expenditure as a defence. However, I feel that it is not appropriate to leave it to the individual to enforce the duty on the LEA through judicial review where this will be an additional barrier to disabled people as well, of course, as associated costs. I am deeply concerned about the responsibility this places on people with a
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I have a number of specific questions around disproportionate expenditure about which the Minister has been given prior notice. Perhaps noble Lords would like to hear them. If expenditure is to be deemed disproportionate, what would it be disproportionate to? For instance, should it be measured against a local authority's overall budget, the education budget, expenditure on other students or limits set by other local authorities? New subsection (5) states that:
"Provision is not to be considered as giving rise to disproportionate expenditure only because it is more expensive than comparable provision".
Is expenditure therefore disproportionate if it is significantly more expensive? If so, how much more? Would it be twice as much, or perhaps 20 per cent more? I hope that the Minister can clarify how local authorities should measure expenditure in order to judge what is disproportionate.
The word "reasonable" is well established and understood by the courts in relation to disability legislation, and it includes cost considerations, but so far as I am aware, the meaning of "disproportionate expenditure" has not been decided by a court. Why is this confusing term being used instead? How do reasonable needs and disproportionate expenditure interact? Is it possible to have a need that is completely reasonable, bearing in mind that "reasonable" is a term that considers cost, and yet for that need not to be met if it is considered to incur disproportionate expenditure?
Finally, it is dubious why provision that specifically "might give rise to" disproportionate expenditure should be avoided. The wording implies that potential future costs should be considered by the local authority. Does this, for instance, mean that someone might be denied provision in their local authority just because years later it could oblige an authority to provide that provision to many more learners?
As regards Amendment 143, Clause 40 creates a general duty on LEAs to secure suitable provision for post-16 education, but it does not give any more entitlement to provision than already exists. This means that, to a large extent, the provision available will be at the discretion of the LEA. While this is not necessarily a bad thing, it will be absolutely vital to ensure that LEAs are required to monitor and report on their performance so that they can be held accountable to the public for their decisions.
In Committee in another place, the Government argued that structures are already in place to ensure that local authorities can be held to account for the delivery of their new duties under the Bill. LEAs will become part of the existing outcomes-focused performance management system supported by government offices, and they will also be assessed and inspected by Ofsted. We feel that these mechanisms are not robust enough to ensure LEA accountability and we need a far more targeted accountability mechanism.
The amendment is particularly concerned with how an LEA's performance of this duty towards learners with learning difficulties will be audited and how, in
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The amendment mirrors the sufficiency duty contained in the recent Childcare Act, a widely supported measure at the time. The Government state in their guidance that the childcare sufficiency duty is designed to help local authorities to identify the nature and extent of the need for provision and, where there are gaps, plan how to support the market to address them. The measure includes giving scope for a three-yearly review of the provision for people with disabilities and learning difficulties. Young people with disabilities and learning difficulties would be involved in the audit and the results of the audit would be published. This process will go to the heart of ensuring that the apprenticeship scheme leads to truly positive outcomes for learners with a learning disability and would avoid the past mistakes of many courses which ultimately lead nowhere. I beg to move.
The Deputy Chairman of Committees (Viscount Ullswater): I must advise the Committee that if the amendment is agreed to I shall not be able to call Amendment 100 because of pre-emption.
Baroness Sharp of Guildford: My name is linked with those of the noble Lords, Lord Rix and Lord Low, on the amendment, to which I happily give support. The key issue has been raised by the noble Lord, Lord Rix: that is, what is disproportionate? How do we judge disproportionate in this sense? I look forward to hearing what the Minister has to say.
As to the proposed new clause in Amendment 143, again as the noble Lord, Lord Rix, has said, it is necessary that local authorities should have a more targeted approach to those with learning difficulties. The proposed new clause sets out in detail precisely what is required. We have all had experience of how there are often difficulties in delivery despite the legislation that has already been passed, and it is useful to spell out in some detail precisely what is required. I give my wholehearted support to both amendments.
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Lord De Mauley: Like the noble Baroness, Lady Sharp, I have put my name to Amendment 94 of the noble Lord, Lord Rix, not because I want to see subsection (4)(e) of new Section 15ZA of the 1996 Act removed from the Bill but because it is important to probe the Government's intention on this point. The paragraph enters the proviso that the LEA must make the best use of its resources and must not provide for anything that would,
I am curious about how the Government intend to enforce this area of the Bill. While it is admirable, it will be difficult to enforce for two main reasons. First, it will be difficult to measure what the best use would be of an authority's resources, given that it will have to provide very different services for a range of diverse groups of people. Each group will have its own needs
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Secondly, and this echoes the concerns expressed by other noble Lords, this provision may provide the get-out clause for local education authorities that are on a tight budget and might therefore seek to reduce spending on providing for those with learning difficulties or other disabilities. I sympathise with the LEAs in this respect; we on these Benches think that the devolution of the duties involved in providing education will stretch resources and put a great deal of strain on already struggling authorities. Nevertheless, it is also vital that those with learning difficulties or any form of disability are not left behind.
Subsection (5) of the new section attempts to clarify that expenditure should not be considered disproportionate just because it may be more expensive than comparable provision. However, as the noble Baroness, Lady Sharp, said, more clarity is still needed if we are to ensure that LEAs are able to run educational provision that will include all relevant people while simultaneously making the best use of resources.
Amendment 143 seeks to ensure that local authorities have a duty to carry out assessments of the sufficiency of the provision of suitable education for learners with learning difficulties. I will be interested to listen to the Minister's response to it, given that I am not sure how, without such assessments, it would be possible to ensure that provision for learners with learning difficulties was being adequately provided. If such an assessment cannot be made, how will it be possible to make improvements to the system? I look forward to hearing the Minister's response.
Baroness Blackstone: I cannot believe that the Government intend by the inclusion of this clause to hit the provision of education and training for young people with learning difficulties or with a disability. While I entirely support what the noble Lord, Lord Rix, and two opposition Front Bench spokesmen are saying about the importance of providing adequate provision for those who have special needs, and about the fact that such provision might cost more than would be the case for young people without those special needs, I cannot believe that that is what lies behind the inclusion of this clause. I am sure that the Minister will put us right on that issue.
My problem with the clause is that I cannot quite understand why we need to say in legislation of this sort that a local education authority should make the best use of its resources and that it should avoid provision that gives rise to disproportionate expenditure. It goes without saying that every local authority should make the best use of its resources in everything it does and should not have disproportionate expenditure, which I take to mean unnecessarily high expenditure when it could be done just as well for less money.
Why has this clause been put in the Bill? It looks like central government, in teaching-grandmothers-to-suck-eggs mode, telling local government what to do. We already have extensive regulation of local government expenditure, with a lot of pressure on value for money through the work of the Audit Commission. We already have Ofsted inspecting local education authorities-not
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Lord Addington: This is, effectively, the second go we have had. The previous time the Committee sat, more or less the last thing we discussed was-as the first amendment of the noble Lord, Lord Rix, puts it-these few lines in question. As the noble Baroness, Lady Blackstone, has pointed out, they merely add to the confusion and raise worries that may prove to be false. That may not be the Government's intention but these lines are quite clearly confusing the issue. Which bits of these six lines are the most important in which situation? That is one question that we have not had answered.
I gave examples from my own experience of where people say, "We can't do it if it's something new". There is a huge history of that in all forms of special educational needs provision-"Oh, they can't do that because they've never done it". Even if the current Government are better than any Government before, which is a defence that the Government make, my standard response to that is that they should be; they have more resources, more knowledge and more ability.
What is the benefit of these six confusing lines? The noble Lord, Lord Rix, pointed out that we have a good concept of reasonableness established in law, while the noble Baroness, Lady Blackstone, has said that this seems to be confusing because there are already audits and tests for what is best value for money on various occasions. Why do the Government desperately need this? If they get rid of it and go back to established principles, they will probably save everyone a great deal of time and energy.
Lord Lucas: Surely the answer to that is simple. The Government know exactly what is going on at the moment; they know the current form of words that the noble Lord, Lord Rix, explained so cogently, and they have chosen a different form of words in order to alter the entitlement of the people who are subject to this subsection. Is it to increase their entitlement or decrease it? I think I know the answer to that.
Lord Ramsbotham: I strongly support what my noble friend Lord Rix has said. I cannot help but reflect on one word that crops up over and again when one considers the provision of these services: consistency. My noble friend has already mentioned that there is a problem; certainly, in different parts of the country there are different provisions for people with the same need. That is something that I am sure we would all like to see eliminated.
As my noble friend has said, Clause 40 says that,
"A local education authority in England must secure that enough suitable education and training is provided to meet the reasonable needs of persons".
However, there is another complicating factor on top of the inconsistency that that will expose between all the local education authorities. Clause 59, which we have not yet come to, says that the Young People's Learning Agency,
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- "must secure the provision of financial resources to ... local education authorities, for the purposes of their functions in relation to education or training".
So on top of the inconsistency of the local education authority provision, we now have the YPLA responsible for funding. Is there any intention that the YPLA should be directed to make certain that there is consistent funding for all this provision? Otherwise, what is the situation into which we are going to be launched?
Baroness Howe of Idlicote: I sympathise with the amendment and thoroughly support the way in which my noble friend Lord Rix presented it. From some of the briefing that I have had from the department, I think that the intention behind this was in fact a good one: at the same time as hoping that there would be value for money, which is a perfectly sensible thing to say, the intention was that the local education authority would take into account the special needs of people with disabilities. I have some sympathy with the Government, but equally I feel that they have made the situation worse. Maybe the answer will be to take the whole thing back and try to do it as simply as possible to get the message across.
Above all, I was going to make the same point as my noble friend Lord Ramsbotham. We all know that there is inconsistency and a postcode lottery as far as local education authorities are concerned. By no means are those with most resources necessarily the most generous. Let us put it like that. I hope very much that we will get some reassurance. I hope that there will be something rather more dramatic from the Government, and that they will take this whole thing away. Quite clearly, it is not going to work. That was outlined in the other place and it was definitely stated again in your Lordships' House.
The Lord Bishop of Ripon and Leeds: I too support Amendment 94 and express my gratitude to the noble Lord, Lord Rix, for tabling it. I will concentrate particularly on the use of the word "might" rather than "would" in line 37 of subsection (4)(e) of new Section 15ZA of the 1996 Act. It seems quite inevitable that this subsection will lead to less provision for those with learning difficulties because the way in which it is phrased means that a local authority is bound to pay what seems unnecessarily immense caution to just the possibility that there might be disproportionate expenditure in the future. I am aware of how much effort and energy goes into providing often excellent provision for those with learning difficulties. There will, it seems, inevitably be a restriction in that provision if we do not do something about this whole section of the Bill and, in particular, line 37. I hope that the Minister will be able to comment on the use of the word "might" in that line.
Lord Elton: Having arrived late for the debate I will restrict my comments to an endorsement of one of the points made by the noble Baroness, Lady Blackstone, namely the unacceptability of paragraph (e) of the new section. It activates a principle that is often referred to in this House-inclusio unius est exclusio alterius. If you apply a specific requirement to a particular
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The Earl of Listowel: I support Amendment 143 in the name of my noble friend Lord Rix, having taken part in the Childcare Act, which placed a duty on local authorities to secure sufficiency of childcare places. I think it established the principle that there needed to be assessments if the duty was to be complied with. I also ask the Minister-perhaps he would be kind enough to write to me-to assure the Committee that there is a sufficient mechanism to ensure that there is an assessment of whether the learning needs of young people in care and care leavers are met. I am grateful for what has already been done in the Bill for care leavers, particularly in securing sufficient apprenticeships as young people leave local authority care. A local authority should have a fair idea of how many young people leave care each year and should be able to seek employment opportunities and apprenticeships to meet that need. I would be grateful to hear what sort of mechanisms are in place in that regard, especially since we know that local authorities have not, until now, been very good at providing apprenticeships.
12.45 pm
Lord Young of Norwood Green: As my noble friend Lady Blackstone reminded us, we need to establish that making the best use of their resources is a key principle of how all public bodies do business. Subsections (4)(e) and (5) ensure that. That is in learners' interests because if local authorities commission particular provision in a way that does not give value for money, there will be less money available to support other learners. I know that throughout this debate noble Lords have taken the view that this is somehow a get-out clause and that is its sole purpose. That is by no means the intention and I will demonstrate why that is the case as I proceed.
There is a real need for us to ensure that, even in special needs provision, we are still getting value for money. It is not an attempt to say that we do not want to go down a particular route. I am sure that the noble Lord, Lord Rix, could find a number of examples of where he would have to choose between providers and might find that one offered better value for money than another. It is not an attempt to avoid responsibilities or not provide a service. We are trying to make sure that, in getting the best value for money, we can reach the widest possible group of people who need this service. We are all starting from the same intention and should not see value for money as meaning that we will deny people rights and opportunities. I would argue that it is the other way round. We are making sure that more people get the opportunities, services and support that they need.
This is not about comparing the provision needed for one group of learners against the provision needed for different groups with different needs and saying
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- "make the best use of the Council's resources and in particular avoid provision which might give rise to disproportionate expenditure".
There is no suggestion that this requirement has in any way affected the LSC's ability to provide appropriate learning provision for young people with learning difficulties and disabilities. Indeed, one consistent message to come from the conversations that I have had with Skill, the RNIB and others in the past few weeks is that the LSC has a very good track record in this area, despite having this disproportionate expenditure criterion.
Lord Rix: The Learning and Skills Council was a centralised funding programme with annual targets set each year by the Secretary of State. Local authorities are entirely different. They have complex structures, increasingly stretched budgets and political considerations. There will be far more scope for local variability and considerable risk that some disabled people will miss out, based on a local authority's circumstances and their particular problem.
Lord Young of Norwood Green: I will return to that point. I think that that is where the role of the YPLA will prove important.
It was felt that it would be helpful to replicate this provision for local authorities. Although they already have a general duty, under the Local Government Act 1999, to secure value for money, this does not apply to the YPLA. By giving both local authorities and the YPLA a comparable duty which specifically relates to education and training provision, we can be sure that they approach such issues in the same way. If the proposed amendment was made, the commissioning system could, in fact, be less effective.
There can be no question that replicating this clause is somehow a get-out clause for local authorities. As I have already mentioned, their duties to secure provision for all young people in their area, including those with learning difficulties or disabilities, is set out clearly in new Section 15ZA. We would not want to do anything to undermine this.
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