My Lords, I speak to this group of amendments on assessment tabled by the noble Baronesses, Lady Hughes and Lady Jones, the noble Lord, Lord Patel, and my noble friend Lord Lingfield. Before I do so, I should say that my noble friend Lady Northover has had a bereavement and my noble friend Lord Attlee will be standing in for her at very short notice on a couple of the groups this afternoon.
The overarching theme of this group is clarity and timeliness in communications. Getting this right is absolutely vital in creating a system where children, families and young people feel that they are being treated fairly. I thank noble Lords for the opportunity to discuss this matter.
On Amendment 128A, tabled by the noble Lord, Lord Patel, it is a key part of the reforms that anybody working with a child or young person who thinks that they may need an EHC plan can refer them to the local authority. This includes providers of alternative provision, so that a child or young person’s needs can be met. I reassure the noble Lord that Clause 23 will enable providers of alternative provision, and anyone else working with children and young people, to make a referral. The local authority must then determine whether an EHC assessment is necessary, as it would following a request under Clause 36.
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Amendments 129, 132A, 140, 141 and 142 are concerned specifically with time limits, both for the assessment itself and for notifying children, parents and young people of decisions made as a result of assessment. We share fully the desire of noble Lords to ensure that parents and young people have clarity about timescales for assessments, including when they can expect to receive correspondence where a decision is made that special educational provision provided through an EHC plan is not necessary. Therefore, we give reassurances that we are maintaining and improving protections for parents on timescales. The draft assessment and plan regulations set out in one place these timescales including, at Regulation 5, a timescale of six weeks for the local authority to notify the parent or young person whether it will undertake an assessment, as currently, and, at Regulation 13, an overall timescale for assessment and planning to be completed within a maximum of 20 weeks, as compared to 26 weeks currently. We feel that these matters sit best in the code of practice.
With specific regard to Amendment 132A, we believe that requiring further prescription about notifications would not be helpful as it does not focus on timely communications of decisions, which will vary from case to case. Setting a 15-day period to communicate the decision may mean that local authorities take the full 15 days rather than doing so as soon as practicable, as required by draft Regulation 4. It may well be possible within 15 days in many cases.
I turn to Amendments 133 and 136, tabled by the noble Baronesses, Lady Hughes and Lady Jones, concerning the right of appeal. We reassure the noble Baronesses that we are committed to retaining current protections for parents. We have already set out in the Bill and in Regulation 5 of the draft assessment and plan regulations the right of appeal following a local authority’s decision not to carry out an EHC needs assessment, and the local authority’s duty to communicate this right to the parent or young person.
In response to the internal review aspect of Amendment 133, as my honourable friend the Minister for Children and Families noted in the other place, parents do not currently have a right to request an internal review. We believe that it would create an extra level of bureaucracy in the system. The Bill and draft regulations require that parents and young people must be fully engaged throughout the assessment and planning process. Taken together with the provisions on mediation set out in the Bill, this will mean that an internal review should not be necessary.
I turn to Amendment 131, which was also tabled by the noble Baronesses, Lady Jones and Lady Hughes. We share their intention that it is vital to ensure that local authorities work closely with the child or young person and their family throughout the assessment and planning process, from a request for assessment to the issue of an EHC plan. In deciding whether a plan may be needed and whether there should be an assessment, we are clear that the local authority should base the decision on the special educational needs of the child or young person, and whether their needs are sufficiently complex that they may need provision beyond what is
normally available in mainstream schools or other educational institutions. For those who may need a plan, the assessment process will include looking at the needs of the child and young person across education, health and care, including the circumstances of the family for those under 18 with social care needs. For example, for a disabled child who is “in need” under Section 17 of the Children Act 1989, the local authority’s social worker will decide what, if any, service to provide, including taking into account family circumstances.
I turn to Amendment 138A, tabled by my noble friend Lord Lingfield. The regulation-making power in Clause 36(11) in relation to EHC needs assessments lists a number of circumstances to illustrate the potential use of the power. I appreciate that my noble friend very reasonably wishes to ensure that important details regarding the assessment process are not left unspecified. The use of “may” rather than “shall” in Clause 36(11) is in order to retain a degree of flexibility when making regulations in the future. It will ensure that we can make sensible use of further learning from the pathfinders and the experience of implementing the SEN reforms, enabling us to adjust the regulations if that becomes necessary. For the purposes of the consultation we have now published detailed draft assessment and plan regulations which demonstrate how we intend to use the power. The draft regulations demonstrate our commitment to retain the legal protections for parents in the current system, and to extend them to young people in further education and training.
Finally, we would like to support Amendment 139, tabled by the noble Baronesses, Lady Hughes and Lady Jones. The Delegated Powers and Regulatory Reform Committee said that imposing a requirement on anyone to attend assessment meetings, including the requirement on parents to present their child at such meetings, would be meaningful only if there was a corresponding sanction for failing to attend, mirroring current legislation. One of the central parts of the new system is that parents and young people will be involved more fully in the assessment and planning process, and from much earlier on. Clause 19 ensures that the views, wishes and feelings of children, their parents and young people will be listened to and respected, and that they participate as fully as possible in the decisions that affect them.
We do not want to impose a sanction in such circumstances, and after consulting the pathfinders we remain convinced that existing safeguarding legislation is the best route for any issues caused by parents not presenting their children for assessment, where there are welfare concerns. Given this, we do not believe, as do the noble Baronesses, Lady Hughes and Lady Jones, that a power to require attendance at assessment meetings, with a corresponding sanction, is absolutely necessary, with the exception of Amendment 139, which I am pleased to accept. I hope I have reassured the noble Lords and urge them to withdraw their amendments.