Exceptional provision of education in short stay schools or elsewhere

I beg to move amendment 166, in clause 9, page 11, line 29, leave out ‘compulsory school’ and insert ‘participation’.

With this it will be convenient to discuss amendment 168, in clause 9, page 11, line 34, at end insert—

‘(1B) In relation to England, each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for 16-19 students pursuing such examination courses as may be specified in an order made by the Secretary of State who, by reason of illness, may not for any period receive suitable education unless such arrangements are made for them.’.

I will keep my comments succinct.

The amendments are focused on the first aspect of clause 9, which I generally welcome. I have long been interested in the education provision for children with long-term illnesses, probably because I spent seven months in hospital as a teenager. I have also carried out quite a lot of constituency work relating to the issue, so I have been thinking about what could be improved. Clearly, the requirement for full-time education up to 16, as it stands, is a great improvement. However, I am concerned about the statutory guidance, which will have to be revised because, as I am aware from case work, parents are not always told about their rights when they apply for home tuition and perhaps have no knowledge about the choice of alternative education. I know of children with long-term illnesses who have been placed in pupil referral units that were not what I would say was suitable education. The statutory guidance will be important.

I am grateful to the Minister for enabling me to talk to some of his officials because that clarified what was troubling me about the clause. It became apparent that the compulsory school age was one matter, but that we would change the participation age in the near future. By the time it is raised to 18, my second concern will have been addressed. However, I feel that the Bill should say “participation” rather than “compulsory school” age, because people should have the right to participate in school along with their peers and be supported in alternative forms of education, should that be appropriate.

Amendment 168 is more direct than amendment 166. I do not want to make legislation on the basis of one case, but I would like to refer briefly to a constituency case that relates to the background of the amendment. The daughter of one of my constituents has ME. She eventually had home tuition and got five good GCSEs. She wished to do some time at home and some time at  school in the sixth form to pursue her A-levels, but that turned out to be a nightmare. At the time there was the triangle of the Learning and Skills Council, Connexions and the local authority, and we could not obtain a promise of funding for home tuition. She has gone back to school but, with ME, is finding it difficult to cope with full-time study in the sixth form.

The clause retains the position whereby it is effectively up to the local authority’s discretion to provide post-16 education, but that is wrong. When we have young people who wish to pursue A-levels or other courses of their choice, there should still be a duty on the local authority. I realise that the Minister might want to add conditions to such a policy to ensure that students follow appropriate courses, so with great help from the Bill team, I have tabled amendment 168, which states:

“In relation to England, each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for 16-19 students pursuing such examination courses as may be specified in an order made by the Secretary of State”.

I hope that the provision is expressed in a way that the Minister considers acceptable.

When parents have a very sick child, they are so busy sorting out their health needs that a battle with the education authority is just one too many things to cope with. My constituent has had a difficult time. We know that quite a lot of young people have ME, and I am sure that we can think of other health conditions that make it difficult for young people to attend school full time, yet from which they might well recover. I hope that my constituent’s daughter will attend university in due course. I will be very grateful if the Minister will consider the amendments. I tabled them not to oppose the Government, but to close the loophole.

The clause is extremely important. It will ensure that full-time education is available in alternative provision not only, as the law states at present, for those excluded from school, but for those who might not be at school for medical or other reasons. As such, it is one of those clauses that sometimes pass a Committee by, despite their significance, and the hon. Member for Mid-Dorset and North Poole is right to draw the measure to our attention.

We want to ensure that the provision is enacted as soon as possible. As the hon. Lady said, the compulsory school age of up to 16 is obviously easily defined under law. As for post-16 education, raising the participation age will not happen until 2013 for 17-year-olds, and not until 2015 for 18-year-olds, and her concerns are about the provision of full-time education for those people in the interim. Through guidance laid out alongside the Bill, we intend to explain what is expected to happen. The raising of the participation age is good legislation, and we must ensure that what everyone regards as a good way forward does not create a difficulty, albeit even in the short term. We intend to address that through guidance.

The hon. Member for Mid-Dorset and North Poole seeks to amend clause 9(2)(a) so that local authorities would be under a duty to arrange education for all children of participation age who, for reasons of illness, exclusion or otherwise, may not for any period receive  suitable education. I assure her that the amendment is not necessary. In accordance with the Apprenticeships, Skills, Children and Learning Act 2009, local authorities will have a duty to ensure that enough suitable education or training is available for all 16 to 19-year-olds in their area. We intend those provisions to come into force on 1 April this year. It is our intention that local authorities and education providers will take steps to ensure that special arrangements are in place to support a young person’s continued participation in learning. When the powers for funding a commission transfer to local authorities in line with the ASCL Act, those local authority functions will be further strengthened.

Amendment 168 would create a new duty for local authorities to arrange suitable education for 16 to 19-year-olds who are

“pursuing such examination courses as may be specified in an order...who by reason of illness, may not for any period receive suitable education unless such arrangements are made for them.”.

I assure the hon. Lady that in our view, this amendment is also unnecessary. The Education and Skills Act 2008 created a new legal duty for local authorities which, once in force, will require them to exercise their functions so as to promote effective participation in education or training for all 16 to 18-year-olds, including those who suffer from illness. In addition, local authorities will be required to exercise their new functions in the ASCL Act, to secure the provision of education or training for 16 to 18-year-olds, with a view to enabling those persons to fulfil the duty to participate. As I have said to the hon. Lady, alongside that we intend to put into guidance the need for local authorities to provide education or training opportunities for the young people covered by the clause. The hon. Lady has highlighted a slight gap, which we intend to fill through guidance, and with that assurance, I hope that she will withdraw the amendment.

I thank the Minister for his lengthy reply and for his responsiveness on the issue. I am pleased that he will pick it up in guidance, which I hope will be as strong as possible so that we do not have the difficult situation of a local authority not wanting to find the money for a genuine case. With those comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 192, in clause 9, page 12, line 1, after ‘if’, insert

‘, following an independent assessment of the physical or mental health of the child,’.

With this it will be convenient to discuss the following: amendment 167, in clause 9, page 12, line 2, after ‘child’, insert

‘and after consultation with parents, carers and medical professionals,’.

Amendment 187, in clause 9, page 12, line 3, leave out ‘impracticable or otherwise inappropriate’ and insert ‘detrimental to the child’s well-being’.

Amendment 191, in clause 9, page 12, line 4, at end insert—

‘(3AAA) A decision under subsection (3AA) shall, at the request of the parent of the child concerned be subject to annual review.’.

Amendment 158, in clause 9, page 12, line 10, at end add—

‘(5) After subsection (6) there is inserted—

“(6A) Where a local authority considers that it would be impracticable or otherwise inappropriate for full time education to be provided for a child under this section, a local authority must, within 2 months, draw up plans for such support as is necessary to allow the child to return to full time education as soon as this is appropriate.”’.

Clause 9 requires local authorities to provide full-time education for children who, for whatever reason, are not attending school. Subsection (3) provides an exception to that duty if

“the local authority consider that, for reasons which relate to the physical or mental health of the child, it would be impracticable or otherwise inappropriate for full-time education to be provided for the child.”

Amendment 192 would mean that that requirement would apply only following an independent assessment of the physical or mental health of the child. It reflects concerns raised by the National Autistic Society, which said in a briefing to members of the Committee:

“We recognise that there may be some circumstances where it may be inappropriate for a child to be in full-time education, but have concerns about:

Who would make the assessment about what is appropriate for the child and;

Whether the clause would provide local authorities with a wide ‘get out of jail free’ card not to provide education for children for whom they are unable to find appropriate education locally or whose needs mean that provision would be very expensive”.

It continues:

“Given the wide lack of understanding of autism and the potential for a conflict of interest, we believe that assessments on appropriateness would have to be made independently by someone with experience and expertise in the child’s condition. Autism is a complex condition and without a full understanding of how to communicate with the child and what their needs may be, it is unlikely that a fair and comprehensive assessment would be made.”

We agree with that assessment, which goes on:

“The use of the word ‘impracticable’ in the clause is of particular concern here. We would like to know in what cases it would be ‘impracticable’ for a child to receive full-time education, if this is not related to cost.”

It would be helpful and would reassure the National Autistic Society if the Minister could address that specific concern in his response. The NAS also states:

“An assurance that there will be independent assessments to determine state of the child's physical/mental health” would be helpful, and that is what the amendment seeks to do.

Amendment 191 reflects concerns raised by Barnardo’s. In its briefing, it said:

“Whilst Barnardo’s accepts that it is pragmatic to allow exceptions, we would like Members to seek assurances that this will be on a time-limited basis and subject to review after a fixed period, agreed with the parents or carers.”

It goes on to explain:

“We know from the experience of our services and the young people they work with that some young people facing temporary barriers to participation—for example, teenage mothers who have recently given birth or young people with mental health difficulties—end up drifting out of education altogether.”

Amendment 191 would insert a new subsection requiring that any decision about not providing full-time education,  because of the physical or mental health of the child, be reviewed annually if requested by the parents of the children concerned.

With those few words, I await the Minister’s response.

This string of amendments focuses on the words “impracticable or otherwise inappropriate”. As has already been said, they have been viewed as a “get out of jail free” card. There is concern about how that will be interpreted at a local level. Amendment 167, tabled by my hon. Friend the Member for Yeovil and me, suggests that there must be consultation with parents, carers and medical professionals. Taken with amendment 192, which seeks a full independent assessment, both amendments make a strong support package and both are important.

We have heard what the National Autistic Society said. Another amendment that we tabled—amendment 187 —was suggested by the Special Educational Consortium. The amendment would delete “impracticable or otherwise inappropriate” and insert

“detrimental to the child’s well-being”.

That is suggested because there is a concern that the local authority is given too much discretion. There need to be checks and balances on that discretion, because we all know how very expensive an out-of-area placement can be, and one has to be clear that the child’s interests have been put first.

I find amendment 191 quite appealing. We have submitted amendment 158, whereby

“a local authority must...draw up plans...to allow the child to return to full time education as soon as this is appropriate.”

That may pick up the teenage pregnancy point that we mentioned earlier. It is a difficult area. Even though we are talking about a relatively severe condition—a very special condition—and they will all individually be very different, we need the checks and balances so that we put the child’s interests first rather than the monetary interests of the local authority. I know that they are a big constraint for a small local authority. I hope that the Minister will be able to give us some reassuring words on all these amendments.

Approximately 70,000 children are affected by the issue each year. Let me reiterate the point because, as I think we all know from our constituencies, it is an important and emotive topic. The clause will for the first time make full-time education available for those who are in alternative provision who have not been excluded from school. I think we all regret that that does not happen at the moment, so the Bill will put that right. However, in putting it right, we do not want to create unintended consequences. Having said that the aspiration is for any young person who is not in school or who is in alternative provision to have full-time education, it may be that in certain circumstances—for example, for medical reasons or the best reasons—it is simply not appropriate or suitable for that to happen.

As hon. Members would expect for a Minister of the Crown, I would not quite call subsection (3AA) a get-out provision, but there could be a great deal more clarity and certainty in the phrasing and in what we mean. As I say, we do not want to have a clause that everyone supports if tucked away in it is something that says we do not expect children to have full-time education  if it is simply inappropriate for them. We do not want the measure to be used by some as a way of avoiding their responsibilities under the clause.

I ask the hon. Members for Bognor Regis and Littlehampton and for Mid-Dorset and North Poole to withdraw their amendments. I will take some legal advice on the matter and come back on Report with a Government amendment to try to deal with the points raised by them and, indeed, many others. I hope that is helpful to them.

Referring back to a comment made by the hon. Members for Mid-Dorset and North Poole and for Bognor Regis and Littlehampton, will the Minister clarify how the clause will affect pregnant teenagers? Clearly, being pregnant is neither an illness nor a disability. Those girls are not being excluded either. Will he reassure me on that matter—in relation to this clause or elsewhere in the legislation—because where the young woman’s desire is to continue in the secondary school that she has been attending, it might be problematic to provide suitable and appropriate education.

That is a very good, concrete example of the sort of person we mean. It might be someone with a medical condition or it might be someone who for other reasons—for example, a young girl who is pregnant—is in alternative provision. As the law stands, unless such a young person is excluded from school, there is no legal entitlement or necessity for the authority to provide full-time education for them. I think we all consider it to be an anomaly that if someone is ill or is not in school because of particular circumstances and they are in alternative provision, they are not legally entitled to full-time provision, whereas if someone is excluded from school, after six days out of school, the local authority is legally obliged to provide full-time education for them.

In exactly the circumstances that my right hon. Friend referred to of a young girl in such a situation—I am sure we can all think of other examples where somebody is not ill, but for certain reasons they are unable to be in school and they are in alternative provision—if the clause is passed, the legal necessity will be to ensure that full-time provision, where appropriate and necessary, is provided. I want to frame the clause in such a way that although it makes that a legal certainty for young people in that situation, it allows flexibility where appropriate. We want to do so in a way that does not allow anyone to evade their responsibilities. I hope that was helpful to my hon. Friend. With those remarks, and our commitment that we will table a Government amendment on Report to do what I think my right hon. Friend the Member for Don Valley and Opposition Members want, I hope that the hon. Member for Bognor Regis and Littlehampton will withdraw his amendment.

I was impressed by the Minister’s response. He is right that the law is improved by clause 9 and that, in putting right a law, he does not want to create the unintended consequences of having to provide full-time education for children who clearly, for a variety of reasons, cannot cope with it. I now understand that he  is also cognisant that, in trying to tackle any potential unintended consequence, he does not want to create more of such consequences. As such, he has agreed to take away clause 9(3), which will insert proposed new section 19(3A) into the Education Act 1996, and I am grateful to him for doing so. I do not claim that my amendment is perfectly drafted, and I understand why he wants to take further advice. If he wishes to consult, Opposition Members will be happy to participate in that and make the legislation exactly right. I know that people outside the House, particularly the National Autistic Society and Barnardo’s, will be pleased with the Minister’s response. With those few words, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.