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Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Volume 734: debated on Monday 16 January 2012

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012.

Relevant document: 36th report from the Joint Committee on Statutory Instruments.

My Lords, when we discussed the general principle of testing the use of direct payments for special educational provision on Report on the Education Bill back in November, I am glad to say that there was a broad welcome for the measure from all sides of the House. However, there was a suggestion from the noble Lord, Lord Touhig, that the detail would merit further scrutiny and that the affirmative resolution procedure would be the right way forward. That was a suggestion that I was happy to adopt, and I am glad that we have an early opportunity to discuss this important order today.

I also put on record my thanks to the noble Lord, Lord Rix, for the attention that he has personally paid to this issue since November and for the helpful exchanges that he has had with my honourable friend Sarah Teather. I also thank the Special Educational Consortium for the way in which it has worked very constructively with officials to look at some of the detail. We have benefited from its advice as well.

As noble Lords know, we said in the Green Paper, Support and Aspiration, that we want to give every child with a statement of SEN or in a new single education, health and care plan, and their family, the option of a personal budget by 2014. That will help give families more of a say in decisions about the support services they use. We have already set up 20 pathfinders to look at improving assessment processes and developing personal budgets for parents. What we are not currently able to do is test the contribution that direct payments for special educational services could play in empowering families. We can do that for health and social services, but not for education. By passing this order, we will also be able to trial direct payments for educational services as part of testing personal budgets across health, social care and education which, if we want to bring all the services together in a more integrated way, seems to be the logical next step. We propose that the pilot should initially run for 14 months until March 2013, with the option to extend for a further two years after that point, if necessary. This is in line with the Green Paper pathfinder testing period.

During our debate in November, noble Lords sought reassurance on a number of points. Let me try to deal with each of them. The noble Lord, Lord Touhig, sought reassurance on the potential impact of direct payments on services to other children and young people with disabilities and SEN. The issue was also raised by the Special Educational Consortium during its discussions with officials from the department. We recognise the importance of this issue not just in terms of the viability of services, but also as an equalities issue. So we are clear that the benefits that direct payments may deliver to those who choose to receive them must not be achieved at the expense of other service users.

That is why we have included the requirements set out in paragraphs 11(c) and 17(f) of the order, which require the local authority to consider the potential for any adverse impact on other service users before entering into any individual agreement on a direct payment and to stop making direct payments should that become apparent at a later date. We recognise that there needs to be a careful balance struck between achieving our aim to give families greater choice and control and protecting existing services. We will need to work through this issue, as and when it arises, with the authorities taking part in this pilot.

In response to questions raised about securing a direct payment, we have sought to give greater clarity to the process for agreeing a direct payment and the provision that it can be used to purchase. We have linked the offer of direct payments to the making of a new or amended statement or the carrying out of a learning difficulties assessment to ensure that the question of whether direct payments will be made does not affect the existing statement and assessment process.

In addition, we have included a requirement to reach agreement about the goods and services which are to be secured by means of the direct payments and a requirement to obtain the written consent of the proposed recipient and, if different, the parent or beneficiary. The written consent must specify the agreed provision and the amount of the direct payments, including whether they are to be paid in a lump sum or in instalments.

Following questions from the noble Baroness, Lady Jones of Whitchurch, about support to families, we have included requirements in paragraph 19 of the order for authorities to make arrangements for a person receiving direct payments to obtain information, advice and support and provide them with written information about organisations that may be able to offer advice and assistance in connection with direct payments. This is an important point, and I am grateful to the noble Baroness, Lady Jones of Whitchurch, for raising it.

Pathfinder authorities will need to work with independent organisations to test how this advice and guidance can be delivered most effectively. A key objective of our Green Paper pathfinders overall is to explore how the voluntary and community sector can be used to improve access to specialist expertise and to introduce more independence to the system.

We have learnt from the individual budgets for disabled children pilot, which began under the previous Government, that, with effective support, advice and information, personal budgets can be accessible to families of all backgrounds. We will work with the authorities taking part in this pilot to ensure that they benefit from the experience of those individual budget pilots. To this end, we have included the individual budget pilot authorities in this pilot scheme alongside those taking part in the Green Paper pathfinder programme.

Overall, we are clear that there is much to learn and work through in the implementation of direct payments for special educational provision. This pilot scheme will allow us to do this as a coherent part of the testing of the reforms being undertaken by our Green Paper pathfinders. This includes the work that they will be doing on personal budgets, of which direct payments are just one method of delivery, and their wider work on the new single assessment process and education, health and care plan. We have made available to both Houses a section of the Green Paper consultation response relevant to personal funding and direct payments.

Finally, I would like to repeat the reassurance I gave during our debate on the primary legislation. The pilot scheme will need to be subjected to proper evaluation if we are to learn from it. We are working on the detail of that evaluation at present, but I can confirm that we intend it to be undertaken by an independent research company and to form a distinct but coherent element of the wider evaluation of the Green Paper pathfinder programme. I am happy to repeat my commitment to sharing those findings as we go along.

To sum up, I think that the previous time we debated this we all agreed on the direction in which we are keen to travel, but we certainly recognise that a number of difficult questions and issues are still likely to arise as we go along that way. I believe that this order provides a framework within which we can explore and, I hope, find ways to address those questions while ensuring that appropriate safeguards for families and the public purse are maintained. I beg to move.

My Lords, I thank the noble Lord, Lord Hill, and his ministerial colleague Sarah Teather, the Children's Minister, who I previously met last autumn along with a delegation from the Special Educational Consortium to discuss in more detail the statutory instruments in relation to direct payments for special educational needs in the various pilot areas. I welcome the constructive and positive dialogue and correspondence with the noble Lord, his ministerial colleagues and various officials in his department. I believe that the statutory instrument, as laid, is much improved as a consequence of that process.

However, there remain a number of points on which I continue to seek clarity. For example, I seek assurances that if people with a learning disability are the recipients of direct payments, it will not lead to a reduction in the level of resources available for the provision of their education. I believe there is a genuine risk of this. In the field of social care, I am aware that personal budgets have sometimes been used by local authorities as an opportunity to try to reduce their costs. We must not allow this to happen with direct payments for SEN, which is why it is so important to get the statementing process right.

I also welcome the Government’s inclusion of paragraph (10) in Schedule 1 to the order, which requires local authorities to agree the amount of direct payment with the recipient in advance and to obtain their consent in writing. However, it is important to bear in mind that many statements of SEN and learning difficulty assessments are not sufficiently well written to allow proper calculation of the cost of the services they describe. For example, a statement may say, “Regular input from a speech and language therapist”, when it should say, “Three hours input from a speech and language therapist per week”. It would be impossible to calculate an amount that correlates to regular input, and in practice this would be down to negotiation between recipients and the local authority. In these cases, parents or young people might agree to accept a direct payment that is not sufficient to purchase the support which is actually needed. Therefore, I would like the Government to consider how they could ensure that the provisions set out in a statement of SEN are properly quantified and specified before a direct payment for that statement is agreed upon.

The Minister will also be aware that concerns were previously raised, as he remarked, about the impact of direct payments on the SEN services provided by local authorities for other children and young people in their area. I am uneasy with the requirement in paragraph 17 of Schedule 1 that if an “adverse impact” is made on these services, the local authority would stop making the direct payments. This could potentially lead to unintended consequences. For example, what steps will be put in place to safeguard the interests of the children concerned if a direct payment is suddenly ceased? What guarantees are there to ensure that the resources allocated for the provision of SEN are not misdirected elsewhere? What steps will be taken to ensure that local authorities do not deliberately underfund direct payments so that the payments can be withdrawn soon after? I also seek assurances that the evaluation of the pilots will fully consider these issues.

I look forward to the Minister’s response to the various concerns raised about this order during today’s debate, and I hope that officials in his department will be prepared to continue working with representatives from the Special Educational Consortium as we move forward on this matter.

My Lords, I very much welcome the order, which will provide considerably greater flexibility for families. Certainly, feedback on individual budgets in other areas has indicated a much greater level of satisfaction on the part of users and their families, so the order is very much to be welcomed. I am particularly proud of the work that my right honourable Liberal Democrat friend Sarah Teather has done on this area. I think that she has taken a great step forward in realising the Prime Minister’s objective of making the UK a very family-friendly country. We have a long way to go, but this is a good step in the right direction.

I would like to ask the Minister about assistive technologies and communication aids, but before doing so I had better declare an interest as a voluntary patron of the British Assistive Technology Association. The association is not just a trade organisation. As well as manufacturers of pieces of kit that help people with both sensory and physical disabilities, the association contains members who are part of the third sector, including organisations that buy pieces of kit to help people and advise on their use and professionals who work in that field. I do not ask these questions on their behalf, but this is how I know about the issues—I just want to explain that.

I notice that both the Explanatory Notes and the Minister’s speech referred to services rather than to pieces of kit. Sometimes, bits of machinery and bits of kit—or stuff—can contribute just as much as services, or the delivery of expertise by experts, to the quality of life of people with physical and sensory disabilities. The good thing and the bad thing about these pieces of kit is that the manufacturers are constantly improving them, so they are getting better and better all the time. Therefore, more and more ways are being found of helping people with disabilities to lead a very full life and to communicate. Of course, communication aids are so important because they provide people with a voice who did not have one before. Can you imagine what it is like not to be able to speak? People in this House would not like that at all. As these things are constantly being improved, it is often better not to buy them but to lease them so that, when improvements become available, the equipment can be given back in return for something better. Of course, sometimes the equipment becomes out of date and you cannot get spare parts any more, so you want to upgrade.

Therefore, I want to know from the Minister whether that sort of thing can be covered within these personal budgets. Can parents—or the young people themselves when they reach 16—choose to purchase equipment? Can they choose which equipment they want to purchase? Can they lease the equipment? Can they take on a service agreement to ensure that they always have the equipment available so that, when it breaks down, they can get someone round to sort it out so enabling them to keep their voice or their ability to get around or their ability to communicate with other people or their ability to work or to learn? All these things are very important to the lives of the people that we are talking about, and these pieces of kit help them tremendously.

I hope that the Minister will be able to help me on that.

My Lords, I am extremely grateful to the Minister for writing to me personally to give me maximum notice of this debate, which has been brought on fairly quickly after the new year. I am not complaining about that. We asked the Minister to make debating the order a priority in the parliamentary timetable when the order-making power was inserted into the Bill on Report so that the proposals could be given the fullest opportunity to show their worth. It is therefore good that we have this early opportunity of scrutinising the order. Like the department, we want to get on with the pilots and evaluating them in order to understand how much substance, if any, there is in the concerns that have been expressed. It was nevertheless considerate of the Minister to give me maximum notice.

The Government have been very accommodating in the approach that they have adopted in the development of the order. In response to representations, they agreed that it should require the affirmative rather than the negative procedure. The sunset horizon has been reduced from five years to two years and the pilots will be undertaken only in pathfinder authorities or those that are piloting direct payments in health.

Some further safeguards asked for have also been introduced. In response to representations from the Special Educational Consortium, the order has been reworded with a view to ensuring that the receipt of a direct payment in no way threatens the statutory right of the child to receive the educational provisions set out in their statement and that the viability of specialist SEN services is not threatened by direct payments taking resources out of the system. Nevertheless, I confess to retaining a degree of scepticism about the Government's ability to ensure all of that and as to what will be the effect of direct payments in practice.

I hope that the Minister will not feel that, having been absent on the occasion when the order-making power was added to the Bill, I have turned up as a bit of a wet blanket as regards the general consensus established on a previous occasion and that he does not wish that I had stayed away again this time. I do not wish to be a wet blanket but just like the noble Lord, Lord Rix, I wish to draw attention to a number of concerns that need to be bottomed, which I believe the Minister is as keen to bottom as anybody.

Education is a universal service for all children. What will be the effect of resources being taken out of the system by way of direct payments? What will be the effect on other children with SEN who do not have direct payments? Will they see services reduced? What will be the effect on the ability of schools, colleges and local authorities whose responsibility it is to educate disabled children and children with SEN to plan for the coherent delivery of the relevant services?

I understand that all relevant statutory duties, such as the duty to provide or arrange special educational provision contained in Section 324 of the Education Act 1996, remain in place throughout the pilots. I also understand that the order includes a requirement in paragraphs 11(c) and 17(f)(i) that local authorities consider the potential adverse impact on other services that they provide or arrange for other children and young people in their areas and that they stop making direct payments if it becomes apparent that the payments are having such an impact. But direct payments take money out of the system. How can the Government be sure that this will not threaten the viability of specialist services? How can they be sure that giving responsibility to the parent instead of the local authority or school will not undermine the legal right of children to receive the provision that they are entitled to? The Government may say that they do not want these things to happen, but how can they ensure it?

There may be unintended consequences too. Some schools and local authorities may wash their hands of difficult children by encouraging parents to take a direct payment. Parents and young people may be encouraged to take a direct payment when assessments are unclear as to what they are entitled to, thus putting their ability to purchase the necessary support at risk. What if parents do not use the direct payment for the purpose for which it was intended? Parents do not always behave as responsibly as we would like. Of course, the local authority might be able to take them to court, but that is surely not where we want to end up.

The Special Educational Consortium is concerned that the Government have not fully considered the impact of resources for this universal service being taken away from schools and local authorities and being held by individuals. Careful thought will need to be given to the impact of parents or young people holding the budget. Direct payments held by parents and young people will inevitably interact with school and college finances and employment policies. This may have implications for the way schools and local authorities plan for the education of children with special educational needs. For example, if a parent employs a teaching assistant to work with their child in school, who will be responsible for managing that teaching assistant? Who ensures that the child’s teacher works collaboratively with the teaching assistant? Who is accountable for the education outcomes for the child, and ultimately how will schools’ ability to plan provision for all children with SEN be affected? Safeguards to ensure the sustainability of specialist support services, particularly for children not eligible for direct payments, need to be copper-bottomed.

There are other concerns, such as how the Government will ensure that the provisions set out in the statement are properly quantified and specified before a direct payment is made. I will not go on listing them in more tedious detail now. The department is aware of these concerns from the Special Educational Consortium. They clearly place a premium on the evaluation of the pilots for bottoming the extensive range of issues to which this order gives rise.

I was greatly encouraged by the way in which the Minister was seized of the importance of evaluation when the order-making power was inserted into the Bill on Report and, most important of all, that he clearly saw the importance of approaching the evaluation with an open mind and not with a preconceived idea about what should come out of the pilots. The fact that the department is also working so co-operatively with the Special Educational Consortium on the development of the order and, I hope, with the development of the pilots is very much to be welcomed and is very encouraging. Undertaken in that spirit, I greatly look forward to the results of the evaluation.

My Lords, I join other noble Lords in thanking the Minister for sharing with us the correspondence that his fellow Ministers have had with others because that was very helpful in updating us on progress. As a result of the Education Act 2011, the Secretary of State now has the power to create pilot schemes to test the use of direct payments for meeting special educational needs in education settings. During the passage of the Bill, the Government accepted that this important proposal should receive the appropriate level of parliamentary scrutiny and that it should be done by the affirmative resolution procedure. The Government introduced that at that stage. In his opening remarks today, the Minister very kindly gave me some credit for that idea, but it was not really due to me: it was a holy trinity as the noble Lords, Lord Low and Lord Rix, had the same idea. Unfortunately, they could not be present on Report, so I actually spoke the words and got the credit that the Minister has given me. A holy trinity and not one part of the deity alone was responsible for this proposal, and I am delighted that the Government welcomed it.

On Report, I and others welcomed the greater personalisation of education provision for children and young people with special educational needs because it is right. However, there are some particular risks in the use of direct payments in education, particularly in schools. This is a major change in the way that education is delivered, and it is right that it is being carefully considered. I know the Special Educational Consortium has been working closely with the Minister’s officials. I am very grateful for and appreciative of the hard work that his officials have put in and the understanding that they have had in trying to mitigate some of the worries that the Special Educational Consortium and others have had about aspects of the Bill.

Nevertheless, there are one or two outstanding issues, particularly on the question of evaluation. The noble Lord, Lord Rix, raised the issue of the quality of statements and he was right to do that. We know that many statements are poorly written and that calculating direct payments in these cases may be down to negotiations between parents and local authorities. All of us have had experience of working with parents of youngsters with special educational needs and a great many parents have no experience whatever of handling these kinds of negotiations with some official in the county hall or the town hall. We need to ensure that the advice given is even-handed, because we do not want parents to be pushed into accepting a direct payment where the provision that it can purchase does not meet the real needs of their child. That is so important. So many such parents will not be articulate and will not be used to debating, arguing and trying to put their case in the way that the official sitting across the table from them can understand.

On evaluation, can the Minister assure us that the agency tasked with carrying out the evaluation will look at this as a specific issue within its remit and its findings, before Parliament is asked to renew the schemes? There are three elements of the programme that I would be keen to see thoroughly evaluated. The first is the experience of parents and young people. We need to see how that is operated. The noble Lord, Lord Low, has just made the point in his contribution that this can go sadly wrong, so we need a very thorough understanding of how parents and young people have been able to handle the issue of personal payments.

The second area which I would like to see as part of the evaluation is the impact on local authority-commissioned special educational needs services. This goes across the whole range of services, and I know concern has been expressed that the introduction of personalised support might diminish other services in other areas. We need to ensure that that does not happen and, if it has happened, we need to know why and what we need to do about it to correct it.

The third thing that needs to be very carefully evaluated is how the calculations of direct payments are made. This is new ground and a lot of people—not just the parents but local authorities as well—will be unfamiliar with this way of working. We need to ensure that the young people involved are not disadvantaged. It is important that this kind of evaluation is carried out before we seek to renew this order in two years’ time so that we will be able to base our discussions, debates and deliberations on the actual experiences that such an evaluation will throw up.

Like other colleagues, I thank the Minister for his statement and for sending me a copy of the letter from Sarah Teather with some of the Green Paper responses. I very much welcome in principle the idea of extending direct payments to families, children and young people and the potential for empowerment, choice and control that that gives.

I have a number of overarching points to raise with the Minister as well as in relation to the detail of how the instrument is worded. First, will the Minister say something about when the draft guidance to the pathfinder authorities will be published? The devil really is in the detail of how this scheme will be implemented. Had we had that guidance today, perhaps some of our questions might have been answered. Going forward, I think that the guidance will be critical.

Secondly, can the Minister say a little more about how he sees this pilot fitting into the wider scheme of personal budgets for families of disabled children and those with special educational needs, to which he, and others, referred? As we know, the Labour Government began the pilots for families with disabled children and the current Government announced in September last year the 20 pathfinders to which we have referred today to test the Green Paper proposals, including personal budgets and testing the healthcare element particularly of direct payments through the personal healthcare budget pilots. How far does the Minister see the pilots that we are discussing today, in those pathfinder sites, being integrated with the pilots already going on in relation to social care and healthcare budgets? The instrument is framed as if this is something separate, but a family with children with special educational needs will also very often have health needs—they may also have a physical disability. Does he envisage that these will be integrated so that the families themselves will be able to look across the range of services—of social care, health and education? How will that work? It is really very important that with direct payments for educational services, or those that could be purchased from an educational budget, the families themselves should have some flexibility about how the whole range of resources might be available.

Thirdly, the extent to which this achieves the objectives to which the noble Lord, Lord Touhig, referred—a positive impact on families—will depend in part on the availability of alternative providers for the kinds of goods and services that the families might seek. What expectation or requirement do the Government have on local authorities actively to stimulate that market and support emerging providers in the voluntary sector, so that families seeking to use direct payments have real choice and there are options out there for them?

Finally, as an overarching point, as the noble Lords, Lord Low and Lord Rix, have mentioned, there is a real concern about the total quantum of resources available here. Will the total amount of resources be sufficient to fund adequately the direct payments for those families or young people who seek to use them while not compromising the level of services available to other children?

On some specific issues in the instrument, paragraph 3 in Part 2 says that local authorities must consider the request for direct payments and paragraph 13 refers to the decision by the local authority that it is free not to make direct payments after a request by a family or young person. On what bases can the local authority decide not to make a direct payment? If the technical requirements are there and have been adhered to, such as the written consent and so on, what will be the criteria that the local authority has to consider in deciding whether to make a direct payment? This concerns the balance between the powers of the local authority to make those decisions as against the entitlement of families.

Secondly, how extensive or limited will be the ability to use direct payments and what do the Government envisage? Paragraph 10 says that,

“Before making direct payments, a local authority must … agree … the qualifying goods and services”,

to be served by direct payment. What does that mean in practice? Will the local authority have to agree not just the general but the specific service, or the specific piece of kit? Will it have to agree the provider and the cost? If all of that has to be agreed between the young person or the family and the local authority, there is not much flexibility left for anybody to do anything different. So what is the flexibility envisaged in how the direct payments will be operated?

Thirdly, the degree of control given potentially to the local authority in the instrument seems to provide very broad caveats for the local authority not to have to make direct payments. If the local authority feels that direct payments might have “an adverse impact” on other services or if it is not compatible with the efficient use of local authority resources, it can decide not to go along with direct payments. Like the noble Lord, Lord Rix, while one wants to see powers that ensure the value for money and correct use of direct payments, those are very broad caveats that will allow a local authority not to go down the route of offering direct payments.

I say this because, as a Member of Parliament for many years, I had a number of experiences in relation to adult social care in which I felt that local authorities were very specifically not informing people about the potential to have direct payments. They were making it extremely difficult and took a general view that making direct payments available to some people was against the grain in terms of the efficient use of their resources. Looking at the responses to the Green Paper, I see that 19 per cent—which must largely be local authorities—replied that they had concerns that making direct payments to some individuals would in general almost certainly have a negative impact on the efficient use of resources and so on.

In relation to the monitoring review that the local authority is required to undertake—and it is right that it does—it would have been preferable had there been some reference to the local authority undertaking the review alongside the recipient or beneficiary of direct payments. A very top-heavy approach is envisaged in the statutory instrument with all the powers for decision-making resting with the local authorities. It is an interesting contrast to the way in which the Government have approached the balance of power and control between schools and local authorities, for instance. Here, we see the local authority being given all the control.

My fourth, and most important, point is about information, advice and support. It may well be that there will be some parents who are well able to take on the local authority to exercise the potential to use direct payments effectively, but there will be other families who cannot do that on their own. The quality of advice, information and support is very important. I also note that if the payment for advice and support comes from a third-party organisation, it has to come out of the direct payment. I wonder where that will leave families. Is it a payment for any advice and support in addition to that being given for the service? What implications will that have for the total quantum of resources?

My Lords, I am grateful for the broad welcome for this order and for the helpful suggestions that were made. I would never think that the noble Lord, Lord Low, was a wet blanket. The questions that he raises are proper questions in that they are the same questions that in our different ways we have all been grappling with over the past few months. The key issue is how we get the right balance—this is the point made by the noble Baroness, Lady Hughes of Stretford—between wanting to increase choice for individual parents, families, children and young people and wanting to do that in a way, in this most sensitive of areas, that does not undermine the provision for other children. Getting that balance right is what these pilots are intended to address.

The general answer that I have to a large number of the questions that have been raised is that the purpose and point of the pilot is to try to get answers to the questions that noble Lords have raised. We will know the answers to the points about the balance, what will happen in certain circumstances, what it will mean for different providers, how we know that in some cases local authorities might not want to approach this with an open mind and all the rest of it only once we have this pilot. The evaluation will help us to understand that, which is why, as a number of noble Lords, including the noble Lord, Lord Touhig and the noble Baroness, Lady Hughes, made clear, the evaluation is so important and why in the same spirit as we have tried to approach this whole process we will make sure that that evaluation is shared widely.

Some specific points were raised by the noble Lord, Lord Touhig, who I must now think of as the three in one, if that is not inappropriate in the Moses Room. He asked whether we would look at the experience of parents and young people as part of the evaluation, whether we would look at the impact on local authority-commissioned SEN services and how calculations of direct payments are made. When we finalise the details of the evaluation, those are all things that I am certainly happy for officials to look at. We expect interim findings from the valuation in April this year and then September this year, with a final report available in March 2013. That would be before the order needed to be renewed, if indeed it did.

On the point about guidance raised by the noble Baroness, Lady Hughes of Stretford, which was a fair question, officials will share a draft of the advice to pathfinders with the Special Educational Consortium. I will make sure that other noble Lords with an interest will also see it. We will do that in the coming weeks and we would welcome views because we need to get that guidance absolutely right.

The noble Lord, Lord Rix, raised important points about the statementing process and some of his concerns about that. Paragraph 10 of the order makes it clear that before making direct payments, local authorities must agree with the proposed recipient the amount of the direct payment and the goods and services to be secured by means of direct payment. They must also obtain the written consent of the recipient, which is a point that has been picked up and, where different, the parent and the beneficiary.

We have linked the request for payments to the making of a new or amended statement. As the noble Lord knows better than anyone, local authorities are already required to specify the provision necessary to meet the needs of a child in their statement. I accept entirely that the quality of statements and learning difficulty assessments varies widely and the amount of provision is not always properly quantified. The process of establishing a direct payment will in itself help with the underlying problems with the statementing process because in order to make a payment to a family the local authority will have to quantify the provision that is required. We know from the experience of the children's individual budget pilot—which, as the noble Baroness said, was set up by the previous Government—that local authorities are having to think much more clearly about the provision needed in order to specify the details and the resource available to parents. The process of quantifying the provision in a statement to make a direct payment will make those statements more specific and help to address the noble Lord's concerns.

The noble Lord was concerned that trialling direct payments would lead to a reduction in the level of resources for a child’s education. There is no intention to use direct payments to reduce the amount spent on services and the existing duties on local authorities and schools in respect of special educational needs still apply and will need to be discharged through any direct payment.

My noble friend Lady Walmsley raised an important point about assisted technologies, for which I was grateful. They will fall within the scope of the SEN direct payments pilot when they are specified in Part 3 of the SEN statement or in the learning difficulty assessment. Part 3 of the SEN statement can include specification of appropriate facilities and equipment. Where it is in the scope of the statement and where it is meeting identified needs, it can be part of the pilots. The answer is that the kind of equipment she is talking about could be leased, but if there are other points that I can usefully find out I certainly will.

The noble Lord, Lord Low, asked a number of questions which were to do with wanting reassurance in a number of areas. If, for example, parents did not spend money wisely, there are safeguards in place: the local authority must be satisfied that the person receiving the direct payment will secure provision in an appropriate way, while local authorities have to monitor and review the use of direct payments. He was concerned about the possibility that direct payments could take money out of the system and thereby threaten the viability of specialist SEN services. As I think he said, we have made changes already in the order to try and pick up on that. We have said, for instance, that the local authority has to be satisfied that the making of direct payments in respect of the beneficiary will not have an adverse impact on other services which that authority provides or arranges for children and young people in its area. The existing duties on local authorities and schools in respect of special educational needs still apply, and this covers those receiving services on school action plus.

Again, I understand the points that the noble Lord raises on the interaction of direct payments with school and college finances, and employment policies. We are developing an advice note for pathfinder areas that will cover practical details on implementation, including particular considerations where the provision is to be made in schools. That is one core area that we want to see and test as we work through the pilots in the pathfinder areas, so that we have more understanding of how direct payments can work within school, college and local authority roles and responsibilities for education provision. I understand the point and while I do not have a clear answer now, the whole purpose of the pilot is to try to give us a clear answer—an evaluation which answers those concerns—and then we can decide how best to move on.

What is the mechanism for challenging a local authority’s decision about this? Let us say that a local authority says either, “You, Parent A, are not capable of handling an individual budget, therefore we are not going to give it to you”, or, “We are not going to give you an individual budget because we think it would have a damaging effect on our ability to deliver services more widely”. There are two possible reasons there where they may make that decision. Is it the local authority ombudsman to whom the parent would go if they were not satisfied with that decision, or is there some other challenge mechanism?

Yes, my Lords, there is, and my noble friend raises a good question. It seems that the order allows the local authority to review the decision that is taken. I may need to write generally on the arrangements for the review of decisions. Our view is that we have sufficiently robust arrangements for the purposes of the pilot, so they are in place, but I think I will need to follow up with my noble friend on precisely what they are. However, on the kind of issue that my noble friend spoke about—whether it has worked properly and whether a fair process has been carried out—we certainly think that, again, the evaluation will enable us to see whether the processes that have been put in place are working. If I have more particulars, I will write to my noble friend on that.

The wording of the order, as far as I can see, simply says that if the local authority decides to refuse direct payments or in a review to change the current situation—to reduce the funding, or whatever—the beneficiary or the family can ask it to look again. However, after that, there is nothing as detailed on any recourse to any independent authority. Perhaps the Minister could say a little more about that. Can he also answer my question about the criteria on which a local authority can refuse in the first place to decide that a particular family’s request is not going to be acceded to?

Some of the criteria are set out in the order—for instance, paragraphs 6 to 8 on when the local authority is not satisfied that the recipient is suitable and paragraph 11 on the effect on other services. The question that underlines this comes back to this central tension, which the noble Baroness quite rightly raised, between the duties and responsibilities on the local authority to continue to discharge its statutory duties, the budgets and everything that goes with that, and trying to arrive at a situation where there is more flexibility for individuals and their families. Given that the local authority ultimately has the statutory responsibility and the budget, we have to have a system in place whereby the local authority does not find itself exposed either financially or in other ways in a way that it cannot afford or deliver. From that point of view, that is the whole basis of the system that we currently have. We might get to another point—with our SEN Green Paper and further legislative steps—but until then it is within that framework that we have to operate.

The noble Baroness, Lady Hughes, also asked a question about how these pilots integrate more generally into the work that is carrying on with the pathfinders and the work that is going on with health and social budgets. This pilot on direct payments is being undertaken as part of the broader pathfinder programme in 20 areas made up of 31 local authorities and their PCT partners. They are working together—or we hope that they will work together—to test the use of personal budgets including direct payments for health care and special educational provision alongside the development of the new education health and social care plans. The pathfinder programme is managed by a joint working group across the two departments; the whole recruitment phase to select the pathfinders and their support and evaluation teams is also a joint venture. It is probably also fair to say—this is a broad point that links to the noble Baroness’s questions—that the local authorities and others with whom we are working on these pilots are approaching it with an open mind, trying to see whether it is possible to introduce personal budgets and direct payments and to see what it would look like. It is clearly the case, as the noble Baroness very rightly said, that there may be some local authorities and others who do not particularly relish the thought of change, but the ones in the pathfinder, with whom we will be working to test these issues, will, we think, engage with that constructively.

At the risk of detaining him, may I ask the Minister a further question not unrelated to those which have just been raised where there is a dispute between the parent and the local authority? My question is not about whether to make a direct payment but more about the quantum. Has the department considered the implications for the special educational needs tribunal and whether some provision needs to be made for people to appeal to the tribunal about the quantum of provision? It is not to be imagined that there will be total unanimity all the time between parents and local authorities on what the level of direct payment should be. At the moment, there is provision for parents to appeal to the special educational needs and disability tribunal about the level of provision being made. Since the direct payment is the analogue of that provision, is there going to be an opportunity for parents to appeal to the tribunal where they wish to dispute the level of direct payment the authority is willing to make?

I do not believe that there will be a direct right of appeal to the tribunal in connection with direct payments—I guess that there would in terms of the overall provision, as is currently the case.

I am conscious that I may not have picked up all the detailed questions, for which I apologise. Because I want to address all these concerns, I will go through this with officials tomorrow and, if I have failed to pick them up, I will come back. It is generally the case—which I hope noble Lords will find reassuring—that we will go forward in the way that we have since September through November; we are committed to working closely with the Special Educational Consortium and others with expertise in this area to get these pilots right. I think I am right in saying that, some of these proper detailed questions not withstanding, there is support for these pilots. I hope that we can go forward with them. I will share the evaluation with noble Lords as it comes forward over the next months. With that, I hope that we can agree this order.

Motion agreed.

Committee adjourned at 6.16 pm.