The Minister in the other place said that there was no need specifically to refer to children because the term “young people” includes children. The main issue here, which the Minister has to address in his or her reply, is that the Bill is completely inconsistent on this point. Clauses 32, 36 and 38 refer only to parents and young people. Clause 33 talks about children and young people in its title and throughout. The Minister may say, “Ah yes, but that’s not intentional and the code of practice makes it clear”. Unfortunately, the code of practice does not make it clear because the code is also inconsistent. It is a bit more consistent than the Bill because it talks more often about children and young people than the Bill, which chops and changes. Still, though, certain sections, which are not specifically related to people over the age of 16, talk about the engagement of young people, not children and young people.

So there is complete inconsistency throughout the wording of the Bill and the code of practice. If that is not intended, it should be corrected. If the Bill is enacted as it is, a local authority provider reading that legislation could reasonably assume that it was an intended distinction—a distinction that we have all said we would not support.

A number of people, including my noble friend Lady Massey and myself, have had a lot of experience in engaging quite young children and in producing child-friendly material that young children, including those with a learning disability, can engage with. You can get views and experiences from them that are very meaningful to service providers, and they should be captured. The Bill and the code of practice should be very clear that throughout its provisions it is children, young people and parents whose engagement we want to seek in the provisions, the review of the provisions, the experience of the provisions, the monitoring and so on.

23 Oct 2013 : Column GC410

Baroness Howarth of Breckland: My Lords, I support the noble Baroness, Lady Hughes, and those who have spoken to these amendments about the inclusion of children. I simply hope that it is a mistake, a slip of the pen, and that “children and young people” was intended and can be put in. We now have a great deal of experience of engaging young people. Certainly, CAFCASS has done a huge amount of work in working with very young children and understanding their wishes and feelings. The Children’s Rights Director spent a long time talking to young people and young children about how decisions were made about them. It is amazing how very young children feel very deprived of having a part to play in their own lives when they have not been included.

A lot of research shows that not including children in decisions has harmful effects. We know from similar research into divorce that young children who are taken along and understand what is happening have less trauma later than those who suddenly find out that it is happening. There is similar research into the effect of understanding on children. I hope that this is a slip of the pen and that we will find that both are included.

Baroness Howe of Idlicote: I will not keep the Committee for long. As my name is attached to a number of amendments in this group, I want to emphasise what the noble Baroness, Lady Howarth, has said so ably. It is crucial that from the moment at which a child can speak, their views are sought. To an extent, that may depend on how much value can be given to what they say and on their age. Nevertheless, it is important to hear what they have to say. As you get older and have great-grandchildren as well as grandchildren, the more you are aware of exactly what you are learning from their experiences, which can change your views quite considerably. I very much support the noble Baroness, Lady Massey.

Baroness Northover: My Lords, I thank my noble friend Lord Storey for his welcome of Clause 19, which was echoed by other Members of the Committee in this mini-debate. We fully understand the intention behind the amendments—the desire to ensure that the views of the child and his or her parent or carer, or the young person, are fully taken into account; that they are informed and can participate in making decisions, with the information and support that they need to make those decisions; and that the child or young person is supported to achieve the best possible outcomes.

I assure noble Lords, particularly my noble friend, that Clause 19 enshrines the principle that children and young people should be involved in decisions about their lives. I hope it reassures him and other noble Lords that this applies throughout Part 3, including to the clauses on assessment and planning. This is reflected in the draft code of practice, which sets out in Chapter 7.3 that in determining whether an assessment is necessary, the views, wishes and feelings of the child should be taken into account.

I point my noble friend Lord Storey and the noble Baroness, Lady Massey, to Chapter 7.4 of the code of practice, where we are explicit in setting out that:

23 Oct 2013 : Column GC411

“Children, young people and their parents are key partners in the process, and their views on how, when and to what extent they would like to engage must be taken into account. They should feel confident that they will be listened to and their opinions will be valued”.

However, I hear what noble Lords have said and I heard what the noble Baroness, Lady Hughes, said, about any inconsistencies. I am sure that we can double-check to ensure that what was intended runs through both the Bill and the code of practice.

One would normally expect parents to make decisions on behalf of their children where those children are too young or otherwise unable to make decisions, but we would also expect parents to be discussing these issues with their children and explaining to them what was going on. As I have already said, we wish to engage children, as well as young persons, as fully as we can.

We think it is right that local authorities are formally required to consult the parents of children of compulsory school age while at the same time seeking the views of the child wherever possible. For young people over compulsory school age, the Bill is clear—I hope—that it is the young person to whom consultation and notification should be directed, rather than their parents. This is an important step forward to ensure that young people can take control of the support that they receive. Of course, we recognise that parents and other family members are also likely to continue to be involved in the care of young people with SEN.

I shall briefly address Amendment 121 in the name of the noble Baroness, Lady Hughes, which would place specific requirements on the format of the advice provided to parents and young people. We agree that materials should be in a range of accessible formats but we do not think putting this level of detail in the Bill is the best way to go about it. We take her point that local authorities should have the discretion to produce materials in any format that they deem necessary but our worry would be that if there were a list, as it were, local authorities might focus on that. We understand fully what she is aiming at but nevertheless do not feel that it is something to put in the Bill. We believe that the code of practice is the place where we should set out what is expected in terms of formats. I also assure the noble Baroness—this is built into her amendment, although she did not flag it up—that such information, advice and support must be provided free of charge.

I assure the noble Baroness, Lady Massey, who is a trustee of UNICEF, as was I, that we are interested in looking further at how children can be directly involved, hence we are piloting a right to appeal for children. The pilot will enable us to find out whether we can take further steps towards empowering children in future.

7.15 pm

I have received inspiration from behind but unfortunately the inspiration is difficult for me to read. I will endeavour to render this inspiration. The differences in the wording of the Bill are to give clarity where the parent has a decision-making role, so Clause 30 on the local offer covers children and their parents while, for example, decisions about choice of school, such as in Clause 33(2)(a)—then the inspiration stops, I am afraid. I may need to write to clarify that.

23 Oct 2013 : Column GC412

I hope that noble Lords will have taken from what I have said that we are very sympathetic to the points that have been made and that my noble friend will be content to withdraw his amendment.

Lord Storey: I thank my noble friend for her clear and concise reply. It reassures me. I agree with the noble Baroness, Lady Hughes, that where there are inconsistencies we should make sure that they are clarified and cleared up because where there is confusion, there is sometimes doubt. I beg leave to withdraw the amendment.

Amendment 66 withdrawn.

Debate on whether Clause 19 should stand part of the Bill.

Lord Lucas (Con): My Lords, I give my noble friend brief warning that I am totally delighted by Clause 19, particularly by Clause 19(a). He will find that I will drop in a couple of amendments at a later stage to make sure that it will allow parents who wish to home educate their children to specify home education as an alternative to school education and will allow a local authority to provide support in that way rather than support having to be delivered by a school or other institution. I take it that this expansion of parental choice will include home educators, not exclude them. I will table an amendment on that in due course.

Clause 19 agreed.

Clause 20: When a child or young person has special educational needs

Amendments 67 to 70 not moved.

Amendment 70A

Moved by Lord Ramsbotham

70A: Clause 20, page 19, line 8, at end insert—

“( ) A child of compulsory school age who is excluded for a fixed term from school on two occasions within a single school year shall receive an assessment to identify possible learning difficulties within one month of the second fixed-term exclusion.”

Lord Ramsbotham: My Lords, looking at the clock, I am a little alarmed. Will we rise at 7.45 pm or will we go on until this group is finished? I am already on borrowed time.

Baroness Northover: We plan to rise as close as we can to 7.45 pm, having completed the group. I trust that acts as a focus for what we may be able to cover. We have to bear in mind the various rules and Hansard.

Lord Ramsbotham: I am very grateful to the Minister, but I am extremely concerned about that because this group introduces very serious issues to do with speech, language and communication needs. I cannot promise to be short over this because there is a number of things to say, and I know that a number of noble

23 Oct 2013 : Column GC413

Lords wish to speak. I am concerned that we should rise and continue when we resume because, as I say, I have serious timing problems.

The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con): My Lords, it may help the Committee if I say that it is possible under certain circumstances to finish part way though a group and then resume on the next Committee day. I hope that will not happen, but should we get to 7.45 pm, that may assist.

Lord Ramsbotham: My Lords, slightly unusually, I shall speak to Amendments 76 and 78 before I speak to Amendment 70A, because Amendment 70A, as it were, is an issue connected with some of the things that I am going to say. I have already mentioned my concern that we are looking at all children and not just the 2.8% who have special educational needs. In saying that, though, I presume that the Government’s aim is to continue the Education Act 1996 and what was said in it. After all, that is where the statements stem from that are now being turned into EHC plans. The Education Act 1996 says:

“A child has ‘special educational needs’ for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him”.

In recent years, a number of us have set out to raise the profile of speech, language and communication needs as a 21st-century scourge. They have crept up on us increasingly because of the lifestyle that is lived in the 21st century—the electronic lifestyle, the parental neglect lifestyle, the lack of communication in families lifestyle, the lack of communication between people lifestyle—and the fact that there are simply appalling figures about people who are identified as having speech, language and communication needs when they start school. I found, for example, when going to do an experiment with speech and language therapists in two young offender institutions, funded by the Helen Hamlyn Trust, that 67% of the young offenders had some form of identifiable speech, language and communication need. They had reached the age of 15 before this was discovered, hence the fact that the conclusion from our studies was that if only that had been identified early, they might not have been in the young offender institution because they would have been able to complete their education. Think of the waste of the numbers who had been excluded or evicted, quite apart from those who had truanted, because of their inability to connect with the education system.

In recent years, we have learnt that successive Governments have made considerable movement on this. I am particularly glad about the early years foundation stage scheme, which has every child assessed at the age of two to see whether there are difficulties and disabilities. During the study that I have already mentioned to the Committee, we were very pleased to take evidence from Northern Ireland, where speech and language therapists are involved in the training of health visitors before they go to carry out that assessment to make certain that those particular needs are identified.

23 Oct 2013 : Column GC414

The purpose of Amendments 76 and 78 is to draw attention to the need for such early intervention. If the general intent that I mentioned earlier is what I saw behind Clause 19, particularly Clause 19(d)—namely, that every child should be enabled to be educated to the best of their ability—while early identification is the key to improving the educational outcomes for children and young people with speech, language and communication needs, some of whom will also have other needs, such as physical needs, I would have thought that the educational need to involve themselves in and engage with education should be at the heart of an education Bill, which is what this is.

The speech, language and communication needs can be easily missed or misinterpreted. In fact, it is said that almost 90% of the children who have them also have some degree of literacy difficulty; a high proportion of them end up being excluded. The trouble is that this has gone unidentified, very often for far too long. You even find people getting to secondary school who cannot communicate there, having failed to communicate during primary school. If we are talking about 0 to 25 pathways, we are presumably thinking about the transition from education into employment. I have been very interested to see the identification by employers and others of the problems of speech, language and communication needs with potential employees. So I am very keen to see that speech, language and communication needs are included in the Bill as special educational needs, because without the language and communication you will not have the education anyway.

On the subject of special educational needs, we have been talking a lot about disabilities and other things that impact on people’s educational abilities, but we are talking about education abilities. It was said in the other place that 33% of children arrive at school without the requisite communication and language skills to take part in education. That is a terrible figure, and I suspect that it could be an underestimate. There are factors such as learning delays, and so on, to be taken into account; 1 million, or 10% of all the children in the country, have identified speech, language and communication problems that are not caused by neglect, having English as an additional language or other external factors. In other words, it is an endemic problem. As I say, it is the scourge of the 21st century.

Amendments 76 and 78 would seek to strengthen the words in the legislation. I was horrified to hear my noble friend Lord Low question the term,

“to use its best endeavours to identify”,

which was given to me by the Communication Trust. I am more than happy, after we have had this discussion in Committee, to consider other words that might be more appropriate, but I do not think that it is good enough to have a Bill of this magnitude, and the opportunity that it presents to do something of real significance, and put at risk the opportunity to put speech, language and communication needs at the very heart of everything that is done with all our young people. That means spelling out in detail what local authorities’ responsibilities must be; it is not good enough to leave it with a phrase such as “with a view to”. I do not think that that is nearly strong enough.

23 Oct 2013 : Column GC415

That covers Amendments 76 and 78. I now come back to Amendment 70A, which refers to a very particular condition—attention deficit disorder. It is phrased as it is because, at present, ADHD is picked up only when a child has been excluded for the second time. People have quite rightly mentioned the marvellous report that my noble friend Lady Warnock produced all those years ago in which she listed some of the conditions that were to be examined. ADHD was not on the horizon at that time. I contend that a large number of conditions have developed since then which ought to be looked at and included. I mentioned earlier the definition of neurodisability. We talk about learning disability and learning difficulty, but let me describe what neurodisability means in childhood terms. Childhood neurodisability is,

“occasioned when there is a compromise of the central or peripheral nervous system due to genetic, pre-birth, birth trauma, and/or injury or illness in childhood. Such a disability may therefore affect the brain, spinal cord, cranial or peripheral nerves, or muscles, with common symptoms”,

including learning difficulties, specific learning difficulties, lack of inhibition regarding inappropriate behaviour, difficulties related to speech, language and auditory processing, and cognitive delays. It is said that they incorporate autistic spectrum disorders, acquired traumatic brain injuries, epilepsy, learning difficulties, specific learning difficulties, communication disorders and ADHD.

7.30 pm

In other words, there is a great deal to be done, it seems to me, to educate those who are responsible, not just for the initial assessment, but for subsequent child development, so that they can monitor all children as they progress through the 0 to 25 pathway. Conditions such as ADHD, which can actually be treated, ought to be identified much earlier than after the second exclusion from school. My reason for including it is, to repeat what I said earlier to the Minister, that I believe that before any regulations or instructions are issued to local authorities and others as to what is be done in this area, there ought to be urgent consultation with those who have been studying it to make certain that what they have learned and gleaned, and what they are increasingly understanding, is incorporated in whatever comes out. Things have moved on since my noble friend Lady Warnock did her marvellous work, and there is a great deal which ought to be incorporated. I was extremely distressed when this was raised in the other House and was guillotined before it was properly discussed. I do not think that that is something that we ought to do in this House. I beg to move.

Lord Touhig (Lab): My Lords, I shall speak to Amendment 77 in my name and that of my noble friend Lady Hughes of Stretford and to Amendments 82, 83, 84 and 85 in my name. Before doing so, I add my support to Amendment 70A in the name of the noble Lord, Lord Ramsbotham. For me, this amendment represents an important first step in reforming the exclusion policy in schools so far as people with special educational needs are concerned. Some 70% of children excluded from school in England are SEN. That is telling us something: it is a real challenge for us to tackle, and the noble Lord’s amendment at least goes

23 Oct 2013 : Column GC416

some way to start looking at that. I know from family support workers in south Wales that in some of our cities they are concerned about what they call “soft exclusions”, whereby a child is told, “We don’t want to see you for the next 10 days”, or, “It’s half term next week; we don’t want to see you till we come back after half term”. There is no record kept. This is illegal but it happens, and I fear that young people with learning difficulties are much involved.

In evidence given to the All-Party Group on Autism’s commission on special educational needs, one mother said that she had not been called into school about the behaviour of her autistic son for some considerable time because his teacher was someone who had an autistic child herself and understood the problem. I fear that youngsters with special educational needs are, probably unintentionally, the victims of school exclusion policies, and that is not what we want. I hope that the Minister is minded to welcome this amendment.

I now turn to Amendment 77, which seeks to address the issue of early identification. I know that I am not alone in the Committee in believing that identifying and supporting children with special educational needs as early as possible is the most important factor in improving outcomes. Clause 22 requires local authorities to seek to identify children and young people in their areas who may have special educational needs. Amendment 77 would insert the words “as early as possible”, which most people would believe is common sense—after all, why would we not do that? Why would we not seek this information as early as possible?

The professionals who work with children have a crucial role to play: they are the first educators that the children come into contact with. A number of issues, such as speech and communication problems, developmental delays and behavioural and literacy issues can be better addressed by a good quality early years provider. This means that children start school in a much better position than they would otherwise, and fewer resources are required in later years.

There is evidence, though, to show that the early years workforce is typically the least qualified in the education sector. Reductions in local council budgets have meant that they have cut their training spend for early years staff by 40% in the past three years. This has resulted in many cutting back on early years area SENCOs that they have previously employed to provide advice and training in early years settings. However, the support that they provide is needed now more than ever. A recent Communications Trust project, Talk of the Town, evidenced that across a federation of schools, children and young people’s speech, language and communication needs were under-identified by an average of 40%. The Communications Trust said it,

“remains concerned over how the Bill will ensure that the mechanisms for identification will work in practice across all educational phases and also on local authorities’ ability to identify needs as early as possible, and to respond to these needs”.

The National Deaf Children’s Society, RNIB and Sense are also concerned that overall proposals do not place sufficient emphasis on the importance of early years support for children with sensory impairments and their families.

23 Oct 2013 : Column GC417

The Opposition tabled this amendment in the Commons and in response the Minister said:

“One of the things we will consider is whether, and if so how, some of the good practice on the area SENCO role can be reflected in the code of practice”.—[Official Report, Commons, Children and Families Bill, 19/3/13; col. 369.]

I have had a look at the redrafted code of practice, and I cannot see where this is taken forward. Perhaps the Minister, who has considered this in much more detail than I have, can update us on this issue.

I have added my name to Amendment 80, which was tabled by the noble Baronesses, Lady Brinton, Lady Walmsley and Lady Howarth of Breckland, but, in view of the time, I do not propose to speak to it.

Amendments 82, 83, 84 and 85 would ensure that Clause 24 placed a duty on health services to inform the relevant local authority if a child under compulsory school age may have SEN. These amendments would extend this duty to apply to all children or young people who may have special educational needs, regardless of age. It is important that children do not fall through the net and go unidentified early simply because they do not fall within the specific age group set out in the Bill. Having spent 20 years as a councillor, I remember taking up problems on behalf of constituents, often only to be told, “Sorry, councillor, he or she falls through the net”. Who created the net? We did. We, the legislators, the makers of the rules, want to make sure that in this case the net helps and protects people.

In the other place, the Minister referred to single integrated checks and sought to assure Members that the provisions in the Bill would support the identification of children’s SEN and make the these amendments unnecessary. If that remains the Government’s view, will the Minister rehearse for our benefit the argument that the four amendments are not needed and set out clearly where in the Bill the objectives that these amendments are seeking to realise are covered and catered for?

Lord Addington (LD): My Lords, I support the amendments tabled by the noble Lord, Lord Ramsbotham. For anyone who knows anything about the system, even in passing, it is brilliantly obvious that we should have had something like Amendment 70A in the Bill. If a child has been excluded twice, it is statistically almost inevitable that there will be a problem, and he or she should be assessed so that the problem can be identified accurately.

We all carry a degree of history with us in this Room. Mine is of dyslexia. The standard way you identify dyslexia is by the difference between spoken and written language. If you cannot speak correctly, the chances of identifying that person as dyslexic go down. We know there is comorbidity. You have to get into the system and look in the round. It is very important.

I have interests to declare. I have used voice recognition technology for years. It requires a degree of use of language verbally to have a way of dealing with that problem. We should thank the noble Lord for bringing to our attention the fact that everything about communication levels starts to come together in the spoken word or the written word. The way these

23 Oct 2013 : Column GC418

things hang together is always complicated and difficult. It gets more difficult to deal with them the later they are identified.

To say thank you to the Government, I think that Clause 22 is the most radical and brave thing I have seen in a Bill for a while—saying that we will go out and identify those with special educational needs. Most of the special educational needs lobby has been about saying to the educational establishment, “Oi! There’s a problem. Come over here and give us a hand”. I have lost track of the number of times I have had conversations with Members of both Houses of Parliament about dyslexic children and grandchildren: “How do you get the help?”, “Who do you go through?”, “What’s the matter?” and “Do we tell them they have a problem or not?”. Identification here is very important. Making that a stronger duty, despite the fact that it might be difficult, will make the rest of it easier. You cannot help someone if you do not know what the problem is. I very much support this amendment and the sentiment behind it.

Baroness Whitaker: My Lords, I record my support for all these amendments and declare an interest as the patron of the British Stammering Association. In particular, I urge the Minister to take on board Amendments 70A and 77. I shall cite three pieces of research. The first is from his own department, almost a year ago. It found that speech, language and communication needs were significantly under-identified among children. The other research is from the organisations that form the Communication Trust. Language development at the age of two is shown not only strongly to predict children’s performance on entry to primary school but to link to outcomes into adulthood. That means employment prospects as well as education. Tied to that is the fact that language development in the early years has a significant impact on the behaviour and emotional development of children. We are talking, of course, of an adverse impact—anti-social behaviour. The final fact is that too many children enter school without their speech, language and communication needs being addressed or even identified. These deficits are already known and it is imperative that the Bill should take more account of them.

Lord Storey: My Lords, I will speak to Amendment 80. Clause 22 requires local authorities to identify whether children have special educational needs. This amendment would require local authorities to publish data on children identified as having that need or disability and provide a breakdown of this data by type of need. Accurate data on the number of children in their area are vital for local authorities to plan and deliver services effectively. The draft SEN code of practice, particularly in the section on joint commissioning, outlines the importance of local data sets to identify the needs of children with SEN and inform decision-making. Currently, data from different sources for the same area can vary wildly. Inaccurate data can disproportionately impact on the planning for and delivery of services for children and young people with low-instance conditions such as visual, hearing or multisensory impairments. To give one example, figures on the number of deaf children vary by as much as 30,000.

23 Oct 2013 : Column GC419

It is frustrating that a huge amount of energy goes into collecting data for different data sets but none is effective in bringing together a single set that gives reliable figures. Consideration should be given to a simplified, joined-up and less bureaucratic approach, starting within central government. There are three different ways in which data collection could be improved. First, schools and local authorities could be asked to record in the school census whether a child has a disability, as well as formally identified special educational needs. Secondly, a child’s unique health identifier could be used in education and social care as well. This could capture whether a child has a sensory impairment. Thirdly, disability registers could be improved and have greater ongoing oversight. The department needs to review how data on children with sensory impairments more widely are collected to a reliable standard and used to reform the planning and commissioning of SEN services. A welcome commitment from the Government to exploring this further would be of real benefit.

7.45 pm

Baroness Howarth of Breckland: My Lords, my name is attached to this amendment. Clause 32, “Advice and information for parents and young people”, says that we should give advice and information, but how can we give advice and information if we do not know how many people we are going to give it to, what the needs of the children are and what range we will have to plan for in terms of strategy?

Sometimes I mourn the chronically sick and disabled persons legislation, which may be from before the Minister’s time. As a director of social services, I found myself trying to implement that. We were to collect information about the needs of the disabled and sick in our areas in order to create a strategic plan. That was in the 1960s, but here we are now and during all that time we have never got this together.

I know that we do not want to add a huge bureaucratic layer to anyone’s workload. Collecting statistics is always difficult if you are going to get some commonality between the criteria. As the noble Lord, Lord Storey, has pointed out, they vary at the moment across the country. I did a report a few years ago to try to prepare a strategic plan for a voluntary organisation—John Grooms Association for Disabled People—so that it could plan its services. When we tried to get data from across the country, they simply did not exist; hospitals, local authorities and schools all seem to collect them differently.

I hope that the Government will look at this extremely carefully. It is a crucial issue. You cannot have a strategy without data, and data are not that difficult to collect, particularly as the Government are hoping to ensure that all the parents and children in an area will get advice, so they need to know where they are.

Lord Lucas: My Lords, may I ask the noble Lord, Lord Ramsbotham, whether he has addressed Amendment 76, or is it postponed to a later group?

Lord Ramsbotham: I addressed Amendments 76 and 78 together.

23 Oct 2013 : Column GC420

Lord Lucas: Then I shall add them to what I am going to say. I very much support what the noble Lord says about Amendment 70A. It is very important to create a system for identification and picking up kids when you start to see symptoms that might be symptoms of a special need. A lot of the time, there is no sensible way in which a classroom teacher can tell; the difference between ADHD and bad behaviour is not obvious. The motivations behind that behaviour can come from all sorts of things. You need a specialist. You need someone to look, in a one-to-one situation where they are not trying to deal with 30 other children at the same time. You need a decent length of time just to concentrate, and to really know your stuff. It needs to be a proper process of finding out what the problem is.

I have happy memories of going into my child’s school in his second week, by which time he had been given 15 detentions, five of them for having too many detentions. That ought to be saying something to a school, but they need to have the resources available to pick up on what the problem is and settle down and identify it, rather than just having to react to the symptoms. Amendment 70A would put in a backstop—a long way back from where good practice should be, but at least it would be there. That second exclusion really should trigger a proper analysis of what the underlying cause is of the symptoms that the school and the child are suffering from.

I also very much support Amendment 80. There is a lot to be said for having a decent data set for what is going on, not least because it would enable us to spot patterns across the country of differences in diagnosis and in how children were being assessed and treated, which is very important with a process that is essentially local but conditions that are not. The conditions are national, and you want to know what is going on so that you can inquire whether a particular pattern is the result of good or bad practice and either deal with it or spread it, depending on what is right. The base for that has to be data, something at local authority level that can be quite detailed without giving away any personal information and can be a useful and comparable source of information. That should be one of the foundations of our policy.

However, I do not support Amendments 76 and 78. I do not like the idea of the local authority having to scour the country looking under every stone for people with special educational needs. That would be particularly objected to, quite rightly, by the home education community. A lot of those children have been brought out of education because of how badly their special needs have been dealt with by schools, and the last thing that they want is the local authority lording it over them and saying that it has to be in every three months diagnosing their child and telling them what to do. That relationship does not succeed in those cases.

We should not try to create something that intrusive by a local authority. Yes, as was said, the local authority should have its ears open, be a point of contact and have a duty to respond when someone thinks that their child has special needs and wants something done about it. Coupled with the other duties, I think

23 Oct 2013 : Column GC421

that the Bill will achieve a responsive local authority—a body that will pick up on problems that come to its notice and which has to have its eyes open in ordinary ways, so that it knows what is going on in schools, but which does not have to scour the highways and byways for people with special educational needs. To my mind, that is the right balance.

Lord Ramsbotham: The noble Lord has completely misunderstood what I was saying about Amendments 76 and 78. I suggest that the best thing is probably for me to talk to him and explain what I was trying to say, because that was certainly not my intention at all; it could not be further from it.

Lord Nash: My Lords, Clause 22 extends the current requirement on local authorities to exercise their powers with a view to identifying special needs to all children and young people aged from nought to 25. I am grateful to my noble friend Lord Addington for his support for that. Amendments 76 and 78 from the noble Lord, Lord Ramsbotham, would strengthen the local authority duty to identify SEN. There are many ways in which a local authority will identify children and young people, and each authority will know the most effective way to do so. Paragraph 2.2 of the draft code of practice makes clear that local authorities must carry out all their functions with a view to identifying where children and young people aged nought to 25 have SEN. The duty applies to all of a local authority's functions, not just those under the Bill. Paragraph 5.2 of the code further sets out the requirements for the local offer. It must cover the arrangements for identifying the special educational needs of children and young people across all the providers covered by the offer. That will for the first time bring together information on how SEN is identified across the area and give families and young people a chance to comment on its effectiveness.

On the points raised by the noble Lord, Lord Ramsbotham, about speech, language and communication needs, they are included in the definition of SEN. The code of practice refers specifically to speech, language and communication needs as an SEN, and data are collected annually on that. We recognise that identification may not always be what it should, and our new guidance in chapter 6 of the code of practice gives much stronger guidance on that.

Amendment 70A, moved by the noble Lord, Lord Ramsbotham, would ensure that pupils who receive more than one fixed-term exclusion did not fall through the net. There are already extensive protections in that respect. As a result of his representations and those of other noble Lords during debates on the Education Act 2011, statutory guidance to schools on exclusion reinforces the point that early intervention for poor behaviour should include an assessment of whether appropriate provision is in place to support any SEN or disability that a pupil may have. It also sets out that head teachers should consider the use of a multi-agency assessment for pupils who demonstrate persistent disruptive behaviour. Chapter 6 of the draft code reflects that approach in providing guidance on identifying

23 Oct 2013 : Column GC422

different types of SEN. However, schools need the flexibility to identify the most appropriate trigger for such assessments.

While I support the principle underlying this amendment, the steps that we are taking through the Bill and the revised code of practice already reinforce the importance of early intervention. Introducing an automatic trigger for an assessment of pupils’ learning difficulties could have the unintended consequence of creating a box-ticking exercise or lead to schools that are not certain delaying assessments until a second exclusion has occurred.

Concerning the point made by the noble Lord, Lord Touhig, about unlawful exclusion, the department’s statutory exclusion guidance sets out the responsibilities of schools and states explicitly that excluding pupils simply because they have additional needs or sending pupils home to cool off is unlawful. Any evidence of unlawful exclusion is taken seriously by the department and Ofsted.

Amendment 77, tabled by the noble Lord, Lord Touhig, and the noble Baroness, Lady Hughes, emphasises that the identification of SEN should happen as early as possible. Clause 24 reproduces an existing provision that is designed to ensure that action is taken as soon as special educational needs are identified, rather than waiting until the start of compulsory education. For children under school age, health services are often the main point of contact, so it is important that they take action where they identify an issue. The draft code of practice sets out a number of practical steps that will support early identification, including early health assessments such as the hearing screening test, the progress check at the age of two, and an assessment at the end of the early years foundation stage profile at the age of five.

In addition, provisions in this Bill mean that in future anyone will be able to bring a child or young person who they believe has or may have SEN to the attention of a local authority. That includes parents, relatives, professionals, social workers and health visitors. Young people also may refer themselves. That is a significant improvement to the existing position that will help to avoid delays in identifying children and young people with SEN.

Amendment 80, tabled by my noble friends Lady Brinton and Lady Walmsley, raises the important issue of publishing data. We agree that that is important. The department already publishes local authority level data each summer on the number of schoolchildren with SEN and the prevalence of different types of need. Those data are contained in a publication called Special Educational Needs in England. We will continue to publish those data. The department also collects data on children in the early years through the Early Years Census. For post-16, the Educational Funding Agency and the Skills Funding Agency, through the individualised learner record, also collect data on young people in the further education sector on a range of types of need.

Amendments 82 to 85 in the name of the noble Lord, Lord Touhig, together seek to ensure that health bodies take action and notify parents and local authorities where they believe that any child or young person has

23 Oct 2013 : Column GC423

special educational needs. The Clause 24 duty that I have already mentioned does not extend to children of compulsory school age because they will be enrolled with an educational institution responsible for ensuring that their educational needs are being met. It ensures that health professionals tell the local authority of young children not yet in education who may have SEN. That helps in the planning of support for when they enter education.

The responsibilities of early education settings in schools and post-16 providers for identifying and meeting special educational needs are clearly set out in the draft code of practice. On the point made by the noble Lord, Lord Touhig, about the role of area SENCOs in earlier years, page 70 of the new code of practice states that local authorities,

“should ensure that there is sufficient expertise and experience amongst local early years providers to support children with SEN”.

He goes on to outline the role of area SENCOs in the early years. This is the first time that this role has been included in statutory guidance.

I have set out how the Bill and code of practice together make extensive provision to increase requirements that pupils with SEN are identified as early as possible by whatever services they come into contact with, and

23 Oct 2013 : Column GC424

that data are published on those identified needs. I hope that noble Lords will therefore not press their amendments.

Lord Ramsbotham: I am very grateful to all those who have spoken, including the Minister for his summing up. When I was Chief Inspector of Prisons I used to report on what I found, sometimes finding that Ministers had been given what we used to call the virtual prison, which was a description by other people of what they thought the prison ought to be or what they felt it was, which was not in agreement with fact. I must say to the Minister that I heard what he said, but I do not think that it agrees with the briefing that we have been given by practitioners on the ground. We may want a lot of that to happen, but it is not actually happening now. Far from wanting to have a tick-box approach, I would like to make certain that practitioners come together with officials—because the Bill is far too important to be let to go by default—to make absolutely certain that the things that the Minister said are put to the people who are saying that that is not happening. Then we can work out what the actual position is. In that case, I am very willing to withdraw my amendment.

Amendment 70A withdrawn.

Clause 20 agreed.

Committee adjourned at 8.01 pm.