My Lords, I am grateful to all noble Lords for their comments and questions. I will try to address the points raised but I doubt whether I will manage to cover them all. Where I do not, I will write to noble Lords.
The noble Baroness, Lady Uddin, talked about inclusive education, particularly higher and further education. The code reflects the current position, which includes the general presumption that children with SEN should be taught in mainstream settings. That principle is extended to young people in further education through the Children and Families Act 2014. The code also highlights that schools and colleges have important duties under the Equality Act 2010 to prevent discrimination against disabled people, to promote equality of opportunity, to plan to increase access over time and to make reasonable adjustments to their policy and practice, which, since September 2012, has included providing auxiliary aid and services such as specialist computer programs et cetera. However, I note the point made by both the noble Baroness and the noble Baroness, Lady Hughes, and I would be
interested to discuss further at the end the point she made to ensure that these colleges are taking their duties seriously.
The noble Lord, Lord Ramsbotham, is to be commended for reading all 270 pages. He must have done so in order to pick up the typographical error. The publication of the final code will not be determined in advance—he is right about that. However, in communicating with schools, colleges and local authorities on the implementation of the reforms, we have always made it clear that the version of the code issued for consultation on 16 April this year was sufficiently near to the final code for implementation planning purposes. Key duties remain as they are currently for schools and early year providers. They will start to put in place from September the new approach to identifying and supporting children with SEN set out in the code and record those with SEN under SEN support in the January 2015 census. FE colleges will have a duty to use their best endeavours to ensure that young people with SEN get the help they need as they have always done, and will have regard to the approved code of practice.
We believe that the guidance provides a robust framework for supporting those without EHC plans which focuses on the impact of the support rather than how children access support according to the category they fit into. It will also challenge schools to improve the quality of teaching and learning for all pupils rather than inappropriately labelling some pupils as having SEN. The guidance makes clear that schools should involve parents in shaping the support that is provided, be more transparent about what support is available at the school, monitor the progress of all pupils and respond quickly where children are making inadequate progress. School leaders will be expected to include the quality of SEN support within their approach to school improvement, professional development and performance management arrangements.
More generally, we will keep the guidance and the code of practice under review, allowing proper time for the reforms to bed down, particularly as they are being implemented gradually from September. We made provision in the Children and Families Act for subsequent versions of the code to be approved under the negative procedure precisely to enable the code to be kept up to date more easily.
As regards the point about the Criminal Justice and Courts Bill, the Ministry of Justice has indicated that it will consult later this year on its approach to secure college rules. This will provide a further opportunity to contribute to the development of secure colleges and ensure that the needs of young people, in particular as regards their welfare and safety, are met. However, I will pass on the noble Lord’s remarks to try to ensure that when the Bill comes back later in the year he gets a better answer than the one he got last time.
The noble Lord, Lord Ramsbotham, also talked about enforceability and accountability. For the first year we will ask local authorities and parent carer forums to complete implementation surveys on a termly basis. These will focus on whether the key elements
of the new statutory framework are working. We will take action, including appropriate support and intervention where it is clear that a local authority is struggling to implement the reforms. For the longer term, we are developing an accountability framework for monitoring delivery of the reforms. We expect this to be in place from September next year. It will include an agreed approach for challenging poorly performing local authorities and taking more formal intervention action where necessary. The noble Baroness, Lady Howe, the noble Lord, Lord Low, and others asked about Ofsted. Ofsted is now completing its survey of how local areas are working on the reforms and will make recommendations soon about the possible role of inspection in monitoring and accountability.
The noble Baroness, Lady Howe, also asked about the disabled students’ allowance. The noble Baroness will recognise that higher education institutions must meet their duties under the Equality Act. Students can challenge their institution under internal procedures if they do not get the support they should and can ultimately go to court. Currently, they would have to use the Student Loans Company procedures and, as I say, ultimately the courts. As far as appeals are concerned, the outcomes in the EHC plan are much broader than the objectives in the statement as they cover health and social care as well as education and training. Local authorities need to be able to take an integrated approach in describing outcomes in the EHC plan which reflect how a number of services may need to work together to deliver a particular outcome. Making the education and training outcomes themselves appealable could prevent local authorities taking an integrated approach in describing outcomes, but, of course, it remains the case that the special educational provision in an EHC plan is appealable through the tribunal.
My noble friend Lord Addington talked about encouraging charities to make their own version of the code in relation to their particular issues. We know that some organisations are already doing this, an example of which is the Communications Trust. I agree that such organisations are particularly well placed to do this. We are also working with the voluntary sector and other organisations to develop guides to the code of practice, particularly for parents, schools and NHS bodies. My noble friend also talked about training. In order to gain qualified teacher status, trainee teachers must meet national standards which require them to vary their approach to meet the different needs of children, including those with SEN. In 2012, some 76% of newly qualified primary school teachers and 89% of secondary NQTs rated their SEN training as “very good”. It is up to schools to decide what professional development their staff require, and it is true that the code sets out a range of sources of training materials.
For their part, the Government have supported improvements through the teaching schools programme, through their funding for the National Association for Special Educational Needs and its SEN and disability gateway, an online portal that provides access to a range of training resources, including on dyslexia, autism, speech, language and communication needs. We have also funded the training of over 10,000 new
SENCOs and are supporting Achievement for All 3 A’s to provide leadership to help 1,200 schools in developing their provision for children with SEN. The code of practice makes it clear that school leaders should ensure that staff receive appropriate professional development, and the national training of new SENCOs includes an understanding of the main types of SEN, including dyslexia, speech, language and communication needs and autism.
The noble Lord, Lord Low, referred to special services for deaf children. The code recognises that it is up to the local authority to decide, with local children, young people and parents, what services to commission and to include in their local offer. That will include services for deaf children and those with other types of SEN. He asked whether the system will be ready in time for September. We have always been clear that the reforms will be implemented from this coming September. The key elements of the reforms were set out in a Green Paper in 2011. We have regularly been asking all local authorities in England how well they have been preparing, and local authorities are ready to go. Over 90% have reported that they are ready and the department is working closely with the others. Implementation will be gradual and we have put in place a range of support, including the £70 million SEN reform grant in 2014-15 to help with plans for the reforms, along with £45 million in 2014-15 and £32 million in 2015-16 for the recruitment and training of independent supporters. We also have the regional SEN champions drawn from the local pathfinders who have been testing the reforms in practice, and from a range of delivery partners with specialist expertise in key areas such as person-centred planning.
I am extremely grateful to my noble friend Lord Storey for his supportive remarks. The noble Baroness, Lady Hollins, mentioned the guidance on mental capacity. We think that the guidance in the code on mental capacity is about right. It sets out how cases where young people and parents lack the mental capacity to take certain decisions under the Children and Families Act should be dealt with. We have provided a link to further advice on the Mental Capacity Act and have listed all the sections under Part 3 of the Children and Families Act in the regulations where mental capacity considerations come into play. However, I have listened to the points made by the noble Baroness and I will reflect on them. We will be able to consider this issue in a further review of the code.
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I am grateful to the noble Baroness, Lady Hughes, for welcoming the code. We are coproducing with parents’ organisations a separate guide to the code for parents and separate materials for young people, both for publication as the reforms come into force.
We believe that the code of practice is clear about the importance of early identification for children in the early years. Chapter 5 of the code provides specific guidance on early identification for children from birth to two and outlines the forms of support that can be considered. It also sets out the measures in place to identify needs early on, including the duty on health bodies to inform the child’s parents and tell the local authority where they are of the opinion that a
child under compulsory school age has, or probably has, a special educational need or disability. That enables the local authority to put support in place at an early stage. I can confirm that local authorities are as responsible for the provision for nought to two year-olds as they are for older children and young people.
It is true, as the noble Baroness says, that the SENCO in an FE college does not have to have a formal SENCO qualification. That is probably part of the point I would like to pick up with her about FE colleges, which I mentioned in opening. It is the Government’s policy to free colleges from unnecessary bureaucratic burdens. We therefore sought to keep the new burdens the Act places on colleges that are independent education providers to a minimum. However, it is, of course, important for there to be oversight of SEN co-ordination and for curriculum and support staff to have access to support in identifying a student’s needs. If they are concerned about progress or if they need further advice, many colleges already have posts that fulfil this role in a similar way to that of SENCOs in schools. While we do not believe, therefore, that it is necessary to extend the specific legal duty to have a SENCO to colleges, we have set out in the draft code of practice that colleges should ensure that there is a named person in the college with oversight of SEN provision to ensure co-ordination of support.
Of course, the code is not perfect and, of course, we will review it over time. I believe that we have come a long way, as my noble friend Lord Storey said, through the passage of this Act and through the code. Our reforms are much needed and have broad support across this House and beyond. Local authorities are ready to take these reforms forward in September and our other partners who work with children and young people with special educational needs and disabilities are working to support that process. We will keep the code under review as the reforms bed down. The code is fundamental in helping us to improve support for children and young people who have special educational needs or are disabled and their families and I urge noble Lords to support it.