My Lords, the SEN disability code of practice, which we are considering today, is a substantial piece of work, as has been remarked. The department is to be congratulated on it, particularly on the extent of the consultation which has taken place. It has been improved considerably in many respects since it was first issued in outline. I particularly express appreciation for the time and trouble officials have taken to meet with me and respond to the concerns I have expressed.
Within the restrictions imposed by the debates on the Children and Families Bill, the approach to inclusion has been improved. There are references to the UN Convention on the Rights of Persons with Disabilities; there is a statement on the presumption of mainstream education; and, as has been said, there is a greater reference to the Equality Act, although the inter- relationship between that Act and education legislation could have been better spelt out and highlighted more prominently. So far as encouraging a strategic approach to the development of mainstream provision is concerned, the statement that local authorities should be proactive in seeking to improve the accessibility of mainstream provision is most important, particularly if they do that with respect to the provision in their area taken as a whole.
That said, the Government will know that members of the Special Educational Consortium are far from giving the code their unequivocal support. They are calling for an early review of the guidance once we have seen how it is working in practice. The sector exhibits a range of views about the code. Some organisations believe it should be withdrawn and relaid at a later date. A case in point is the National Deaf Children’s Society, which has already been referred to. This is not a head-banging or unreasonable organisation; it very much has its feet on the ground. That an organisation such as this should ask for the code to be withdrawn should give grounds for concern. The society makes a number of points. I will allude to them briefly, because the noble Baroness, Lady Howe, has already referred to them.
On Report, the Minister announced the Government had asked Ofsted to review the need for an inspection framework to drive improvements in local SEN provision and the local offer. The NDCS believes it should be a higher priority to ensure the support that deaf children receive from services is inspected. As the noble Baroness said, concerns have also been expressed about the wider accountability framework around SEN provision. The Minister indicated that Ofsted would publish its findings in summer 2014 but to date we have heard very little about Ofsted’s progress. Like the noble Baroness, Lady Howe, I would be very glad if the Minister could give us an update on how that work is going. We need a clear understanding of how the local authorities will be held to account for their local SEN provision.
Secondly, the code is equivocal about provision of specialist services for deaf children. Paragraph 9.144 states,
“local authorities should consider commissioning … peripatetic services”
for very young children with “hearing or vision impairment”. But elsewhere, it states that, where an EHC plan is being considered, deaf children must be assessed by a qualified teacher of the deaf. This cannot happen unless the service employing such teachers has been commissioned, so I welcome the Minister’s reassurance that the necessary services for giving deaf children the support that they need will be commissioned.
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Thirdly, we need reassurance about the support that disabled students in higher education receive following changes to DSA recently announced without any public
consultation whereby universities will be required to take more of the strain. What means of redress will disabled students have if universities fail to make reasonable adjustments or if the adjustments they make are inadequate? It can be argued that there is now a strong case for universities to be brought within the scope of the SEN code of practice so that disabled students have statutory rights of appeal if the support they need to achieve their potential is not provided.
As the noble Baroness, Lady Howe, said, it would be anomalous if disabled students aged 19 to 25 in other forms of education or training could exercise such rights but disabled students in higher education could not do so. Parliament may also want to consider whether the local offer should now include information about the support available from individual educational institutions.
Finally, concerns have been raised about the absence of any rights within the code that would allow parents and young people to appeal against the content of what the EHC plan says about outcomes. This means that tribunals cannot direct the local authority to amend the content of the plan as regards outcomes. This contrasts sharply with what has been the case under the previous regime, where much of the argument at tribunal has been about the content of statements—I can vouch for that personally having served on the SEN tribunal for some dozen years.
Many other SEC members believe that the code should be approved but with regret. They have a number of concerns with both the content and the timing of the code. While there is a broad recognition that the code has been significantly improved since it was consulted on earlier in the year, there equally remain concerns that the code is not as robust a document as might have been hoped. For example, a lot of concern remains around the removal of the school action and school action plus changes and their replacement with SEN support. There are worries that this new single stage will not be as discriminating as its predecessor and that it will be more difficult to respond to children’s needs in as individualised a way as before.
In general, however, the Special Educational Consortium’s members believe that the code should be approved and that the focus should be on making the most of it for the sake of a successful implementation of the reforms in September 2014. They believe that a failure to approve the code now would create more confusion than going ahead with the code currently before Parliament—I would agree with that. On timing, there is much concern that, given that implementation of the reforms is taking place in September, those who are legally required to have regard to the code are being put in a very difficult position and being given an unreasonably short time to become familiar with its provisions. There is normally an expectation that schools will receive new guidance at least a term in advance. There is a common concern across the SEC membership that the timing of the code risks jeopardising some of the many positive features of the legislation. The academic year has now finished, and educational institutions have broken up for the summer. There is a concern that this leaves no time whatever to begin to build the new culture which we will need if the reforms
are to be implemented successfully. That being so, I am glad that the Minister devoted so much of his speech to the questions of preparation and transition, but I am not sure that they will have entirely alleviated all concerns.
Finally, although I have said that with implementation scheduled for September a failure to approve now would risk chaos, I believe that the Government should commit to an early review of the code following the academic year 2014-15, given the concerns that have been expressed. The Minister indicated that there may be an opportunity to pick up concerns raised at this stage—by which I mean now—when regulations are published later on, but a more definitive commitment to a full review after a year would be helpful and very much welcomed.