Apprenticeships, Skills, Children and Learning Bill

As your Lordships know, the Bill transfers the duty to secure learning provision for 16 to 19 year-olds from the Learning and Skills Council to local authorities. LEAs will specifically have regard to the learning difficulties of their population of learners in determining provision, including those under 25 subject to a learning difficulty assessment. Furthermore, there is a clear duty on LEAs to secure only "suitable education and training" to meet the "reasonable needs" of persons in the area. This is a straightforward and equitable way of allocating resources. The long-standing concept of reasonableness is well established and of course is understood in law. It limits access to provision which may be unnecessary and, importantly, reasonableness takes into account financial cost. In addition, local authorities are required to provide for the efficient and effective use of public funds and, of course, are audited on that basis. Despite these clear limits on what LEAs have a duty to provide, the Bill offers a further qualification for LEAs to avoid post-16 education provision that gives rise to "disproportionate expenditure". I am grateful to the noble Baroness, Lady Sharp, who has already expressed our shared fundamental concern about this issue, and indeed our amendments could well have been debated together. I ought to clarify that the Special Educational Consortium shares our discomfort with the term "disproportionate expenditure", particularly in relation to local education authorities, and agrees that reference to it should be deleted from Clause 40 altogether, as per this amendment. 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 learning disability, particularly those with limited support, and so I fear that failure to provide them with suitable education and training may frequently go unchallenged. 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 particular, the failure to provide suitable education to learners with more complex needs will be monitored and addressed. However, improving accountability can only benefit all learners and allow LEAs to map provision and address gaps in the market appropriately. 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.