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Special Educational Needs (Personal Budgets) Regulations 2014

Volume 754: debated on Monday 16 June 2014

Motion to Consider

Moved by

That the Grand Committee do consider the Special Educational Needs (Personal Budgets) Regulations 2014.

Relevant document: 26th Report, Session 2013–14, from the Joint Committee on Statutory Instruments

These regulations are the first to be laid under Part 3 of the Children and Families Act 2014—an Act which, following very careful and considerate scrutiny by your Lordships’ House, has the potential to make a massive difference to the lives of children and young people with special educational needs and disabilities. These regulations, made under Section 49 of the Act, will introduce the option of a personal budget for education, health and care plan holders from September 2014. Personal budgets can make a real difference to children and young people; indeed, life changing, according to some of our parents on the pathfinder programme.

However, we know that the introduction of personal budgets is complex and needs very careful consideration. Noble Lords may have some concerns about the introduction in September, especially in relation to the depth of testing of direct payments for SEN provision under the pilot scheme. The pathfinder experience has shown that if they are to work, parents must be given clear upfront information about their availability and advice and support on requesting, taking up and managing a personal budget. Pathfinders have also demonstrated that they have the most impact when they are a coherent element of personalisation within the new education, health and care planning process rather than an end in themselves. The introduction from September 2014, as part of the wider introduction of the reforms, means that local authorities will develop personal budgets as a coherent element of the new system rather than as a bolt-on at a later date.

I want to stress that our approach to implementation will be one of evolution rather than revolution, building on the experience of the pathfinders. The draft code of practice, laid before Parliament on 11 June and to be subject to a debate in this House in its own right, is clear on this issue. Subject to the will of Parliament it will, along with regulations covering the local offer and EHC plans, set out a flexible framework for implementation while providing a clear expectation of what local authorities must have in place by September of this year and how this should evolve over time as joint commissioning arrangements and local offers mature.

I turn now to the detail of the regulations we are considering today. They contain many of the provisions we have previously debated as part of the pilot scheme for direct payments for SEN provision. They give parents and young people the right to ask for a personal budget when an EHC plan is being prepared or during a statutory review of the plan. Parents must be given upfront information in relation to personal budgets, including information that we will require to be included in and consulted on as part of the local offer. We have maintained considerations in relation to value for money and impact on other service users, considerations that were included in the very first pilot scheme following discussions between the then Minister for Children and Families and the noble Lord, Lord Rix, and that have continued to be of concern in debates both in this House and in the other place. We have also repeated a requirement for the permission of a school or college, and have added early years settings where a direct payment is being used on their premises. I understand the concern that this is a get-out clause and could be a barrier to inclusion, especially in further education. However, we have not seen any evidence of this from the pathfinders and we think it is only right that institutions should have the final say on who can work on their premises. I can, however, reassure noble Lords that we will keep a careful eye on this issue.

Before I close I want to return to the subject of implementation. I would like to make noble Lords aware of the comprehensive package of support we have in place for local authorities to help them meet the complexities of implementation. This package includes an ever increasing portfolio of materials, including practical advice, case studies, checklists, programmes for workforce development and frameworks for implementation available on the SEN pathfinder website, all developed with expert support from local authorities, their partners and VCS groups working in this area including those representing parents.

On the latter point, we have some excellent examples of information for parents on personal budgets. These have been developed in partnership with parents and include exemplary work from our SE7 pathfinder and the Redcar and Cleveland-Middlesbrough SEN collaborative.

Our SEN advisers are visiting local authorities the length and breadth of the country to establish the level of individual support local areas need and, where necessary, making referrals to our pathfinder champion support team and the newly appointed national champions for personal development.

I know that noble Lords have been interested in the ongoing evaluation of personal budgets. As I stated when we discussed Section 49 of the Act in Committee, SQW, the evaluators of the pathfinder programme, are undertaking a thematic evaluation of personal budgets and integrated resources. The research will re-examine the progress that has been made by both pathfinder and non-pathfinder areas to identify good practice and lessons learnt, and inform the development of less advanced areas. It will be published later this summer.

With this support, and the framework for implementation set out in regulations and the code of practice, I am confident that we have an approach that will in coming years make a significant difference to the lives of children and young people. As such, I hope all noble Lords will give it their support.

My Lords I am very grateful to the Government and the noble Lord for bringing forward these regulations. I think that the Minister knows I have a long history, as the father of a Down’s syndrome daughter, of asking for this sort of thing. I particularly welcome, therefore, the inclusion of parents and families in these regulations, giving them a status which they have lacked for many years.

I trust the noble Lord will forgive me if my question is superfluous. I am not sure whether I heard him say anything about the portability of these arrangements. If a young person or a child moves from one local authority to another, is there machinery in place to ensure that what has been agreed with one local authority will be transferred to another?

My Lords, for once when I find myself talking about the noble Lord, Lord Nash, I am basically saying “Well done”, because the approach to bring parents more into the process and to bring the expertise and support together is very positive. Particularly in the case of certain types of needs or a certain child, the parent is usually the expert, at least initially, and to bring that expertise in is often required.

It is also the case that if one gets an individual need or even indeed something more commonly occurring, it is not uncommon to find a parent who has the time and energy to focus on their child to become more informed about that one child than the professional educators. So this has the potential to be a very good thing.

The devil, of course, will be in the detail and how it is seen through, but at least we have a willingness here to accept that it will need to change and develop, and it will not be one size fits all. This is probably a very good thing. I am sure that politicians and local authorities have the capacity to mess it up themselves, and not all parents will be that well informed and intentioned, but as a basic approach, I think there is much more good than harm in this.

My Lords, I will say at the outset that we very much welcome, as I think all Members in Committee on the Bill did, the principle of personal budgets and direct payments for children and young people with special education needs and learning difficulties and their families. It is fair to say that we all saw it as a tremendous possibility for empowering those young people and their families and parents. If it works, it will stimulate the provision of more and better services, and hold local authorities and providers to account, using the leverage of the personal budget. However, although we welcome the provision and the regulations, I would like to raise four points with the Minister, which potentially jeopardise this outcome of the empowerment of young people.

The first is the lack of evidence from the pathfinder programme that the Minister referred to. The most recent evaluation we have was published three months ago, in March. At that time, only six of the 31 pathfinder areas had started to implement personal budgets and only four of them had actually managed to develop the necessary resource allocation system which underpins the whole thing. Therefore, as yet, there is no substantial evidence to support what the regulations should be doing in this area—there is not much experience to speak of. It also suggests that many local authorities will have difficulties, as the pathfinders clearly have, setting up personal budgets and will need considerable support and guidance. Although I hear what the Minister says—that this is a kind of iterative, developmental and evolutionary process—there really is at the moment, in this area anyway, very little foundation in terms of knowledge and experience from the pathfinders on which to build. Can the Minister be confident that local authorities generally will be able to implement personal budgets effectively and, more to the point in terms of our discussion today, in the light of that lack of evidence, that these regulations are adequate to ensure that families can really access the personal budgets if they wish?

My second point relates to Regulation 7, which refers to the decisions by local authorities not to make a direct payment. The regulations themselves do not specify the grounds on which a request for a personal budget can be refused by a local authority but simply say that the local authority must give the reasons, in writing, for that refusal. The code of practice that was published in the last couple of days, at paragraph 9.107, refers readers to later paragraphs—paragraphs 9.119 to 9.124—for the reasons why a request may be refused. However, I have to say to the Minister that those paragraphs in the code of practice are about as clear as mud to the average family and, indeed, to me. They refer specifically to other pieces of existing legislation, which you then have to go and trawl through in order to understand what the grounds for refusal might be. Could the Minister say clearly today, and put on record, what are the grounds on which a local authority can refuse a request, over and above those basic conditions outlined in Regulation 8? In respect of direct payments, which are, if you like, a subset of personal budgets, will the Minister look at rewriting the code of practice so that paragraphs 9.119 to 9.124 are clearly understandable by families and professionals who will be looking to the code of practice for guidance?

My third concern is around Regulations 6(c) and 6(d), which the Minister referred to. It seems that these potentially constrain the provision of personal budgets by placing conditions—some would call them a get-out, as the Minister said, although he was referring to something else at that point—because they will enable local authorities to refuse personal budgets if the local authority feels that the provision of those budgets would have an adverse impact on other services or have an impact on the efficient use of local authority resources. I served a long time in local government before coming to this place, and that could mean anything in any local authority. If you are providing a whole range of services directly as a local authority, and somebody wants to take a chunk of your money and have a personal budget, any local authority can argue that that will have an adverse affect on its services and will not be an efficient use of its resources. Therefore, I am very concerned about the wide scope that those two sub-paragraphs give to local authorities to refuse, or at least not promote, personal budgets.

The Minister referred to my next point, for which I am grateful. I am unclear how personal budgets will operate at the post-16 level. He said that he is aware of concerns around this and that the Government would draw on evidence from pathfinders, but as yet there is no such evidence, as I have already said. Will the Minister explain how any personal budgets that are agreed for young people who may be looking to go to FE colleges will operate in the context of the block SEN grant to colleges? He will know that some organisations such as the Alliance for Inclusive Education and the Down’s Syndrome Association have said that they already have concerns about the way FE colleges use their grant and that, instead of providing opportunities for young people to attend mainstream courses where they can to learn how to do things, they tend to provide segregated learning disabilities courses or independent living courses—call them what you will. Increasingly, parents of these young people say that they do not want that but rather want resources to help their children join mainstream courses, where they can, and not be segregated into so-called independent living or preparing for life courses because they have a special educational need or disability.

Paragraph (9) of the regulations requires the permission of an FE provider, school or even, as the Minister said, early years provider, for a direct payment/personal budget approach to be used in relation to an individual child in that setting. Again, it seems to tip the balance towards providers and local authorities to call the shots here rather than the young person and their family. I wonder why there is an apparent distinction between the disabled students allowance for young people going into higher education, which is portable and is assigned to the young person who can use it as they wish at any university that will accept them, and the personal budget approach adopted in these regulations for young people going into further education, which seems to constrain their choice of options and requires the permission of the relevant institution before they can use it.

As I say, I entirely support the principle of the regulations but want them to work in the interests of young people and their families to enable them to have more say in addressing these young people’s needs in a mainstream education setting, where that is possible. That is a very important principle at the heart of this issue. In the light of the lack of evidence from the pathfinders, the regulations seem a little premature. Is the Minister satisfied that now is the right time to introduce them? I look forward to hearing his remarks and hope that he will put on record responses to the queries I and others have raised.

I am grateful to noble Lords for their comments and questions on the regulations. I turn first to the point made by the noble Lord, Lord Pearson, about portability. When a family moves to another area, the new local authority may review the plan and conduct an assessment but should keep the provision in the plan in place, including the provision supported by a personal budget.

I am very grateful to the noble Lord, Lord Addington, for his kind remarks and support for what we are doing. I turn to the four points made by the noble Baroness, Lady Hughes. I accept that the current evidence is not as extensive as we would all like. However, more than 500 personal budgets were in place at the last count in April, and in May 90% of local authorities said that they were ready to implement the reforms. Local authorities have expertise available to them in relation to the champions for personal budgets. SEN advisers are working with local authorities on this.

When someone’s experience is that something in the code of practice is, as the noble Baroness said, as clear as mud, it gives me cause for concern, but we will be debating this in full in the next few weeks. We feel that the guidance is appropriate but I look forward to those discussions.

I turn to the noble Baroness’s points about Regulations 6(c) and (d). We must consult about the personal budgets with parents and families as part of the process. I have to say that we have had no evidence that local authorities will use these regulations as a kind of devious reason for making the provisions available. Surprisingly, in my visits to a number of pathfinders, I found strong evidence that personal budgets resulted in a more efficient use of resources, as parents understood that this did not amount to a blank cheque, and the co-operation between parents and local authorities resulted in more efficiency.

Lastly, to deal with the point about post-16 provision, the regulations and advice that we give in the code of practice are clear that personal budgets should support provision that is appropriate to the young person as an individual. The wider provisions of the Children and Families Act contain a presumption of mainstream education for those with EHC plans, including those with personal budgets. If that is not an adequate answer for the noble Baroness I would be very happy to discuss it with her further and write to her.

I know that the Minister said we are going to debate the code of practice but what are the grounds upon which a local authority can refuse a payment? Why are those grounds not clearly listed in the regulations?

It looks like I am going to have to get back to the noble Baroness on this. I do apologise.

Perhaps I can close with a quote from a parent on our pathfinder programme, who said:

“The flexibility is essential and means we can reflect changing circumstances’ needs. Compared to this time last year our son is a happier, less anxious, more settled and communicative child and as a consequence we as a family are able to function better and look forward more optimistically”.

I can think of no better way in which to conclude our discussions and, on that note, I hope that all noble Lords will give the regulations their support.

Motion agreed.