We are talking about children’s needs, and local authorities will need to ensure that their template and the way that they do it suits the needs of their children. What we do not need is central government dictating exactly what the template will look like.
Government Amendments 148 and 149 enable regulations to make provision about amending and disclosing education, health and care plans. Equivalent provisions currently exist in paragraphs 2A(5) and 7 of Schedule 27 to the Education Act 1996. The amendments also require that any amendment to the plan applies to Clause 33, which requires that children and young people with a plan be educated in mainstream provision other than in specified circumstances.
Having the ability to make amendments to plans will ensure that local authorities will retain the flexibility to make minor amendments to keep plans up to date without the need for a full review or reassessment—for example, when a particular outcome in a plan has been achieved. Assessment and plan draft Regulations 26 and 27 set out how we would propose to use the powers on amendment, including requiring that local authorities consult fully with the parent or young person.
Regarding the regulation-making power and disclosing EHC plans, our proposed new regulations are in assessment and plan draft Regulation 17, which will be laid following consultation, subject to noble Lords’ approval of these amendments. The regulations ensure
that sensitive information in EHC plans must be protected and can only be disclosed with the child’s or parent’s or young person’s consent except in specific circumstances, such as to share with schools and colleges.
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Turning to Amendment 163A, I thank the noble Baronesses, Lady Jones and Lady Hughes, for their amendment, which gives me the opportunity to explain the health commissioning duty to the Committee. The word “arrange” in Clause 42 reflects the commissioning role of clinical commissioning groups and NHS England, which do not provide services directly. The word “secure” is broader and can also include the direct provision of services. However, I can assure the Committee that the effect will be the same. CCGs and NHS England, where appropriate, need to ensure that the healthcare provision specified in the plan is made, just as local authorities do for the special education provision specified in a plan. Should a health partner fail to arrange what had been agreed in the plan, the family or young person could reasonably complain to their local clinical commissioning group. Clause 26 requires the establishment of a dispute resolution procedure between partners that could be used, which also must be effective.
I now turn to Amendment 168 in the name of the noble Baroness, Lady Howe. I would like to reassure her that I understand and approve of her desire to ensure that reassessments of education, health and care plans are carried out with as much attention to detail and care as the initial assessment. That is why we have set out in draft regulations that when local authorities are securing a reassessment, they must follow the same process as for a first assessment. This will include seeking advice from an educational psychologist, among others. The noble Baroness suggested that reassessment does not follow the process for the first assessment. Regulations 23 and 26 require the same process for the reassessment as for the first assessment, including consulting an educational psychologist.
I would also like to clarify why we do not believe it necessary for educational psychologists to be involved in every review meeting. The draft regulations require that the school or other institution attended by the child or young person and local authority education service are invited to the review meeting, which must be held at least annually, and that a report must be prepared which may include advice from an educational psychologist where necessary. We do not think it is proportionate to require that an educational psychologist is involved in every review. This will depend on the progress being made by the child or young person and be informed by the views of the parent, young person and school or other institution involved. It is also important to note that local authorities provide educational psychology services to all state-funded schools as a matter of routine, which enables ongoing concerns about pupils with plans to be raised outside the annual review schedule as necessary.
I now turn to Amendment 169. The Delegated Powers and Regulatory Reform Committee report raised concerns that this regulation-making power is wider than under existing legislation, where it is subject
to the negative procedure. I would like to reassure the Committee that the intention is not for the power to be used to enable wide-ranging derogation from the duties to review and reassess EHCs required by Clause 44. The Government believe that the best approach is to be less prescriptive in primary legislation than currently in order to allow learning from the pathfinders and to allow time for us to understand where local flexibility will have a positive effect on the system before finalising the detail of the regulations. This will also keep relevant legislation together in one place in the regulations.
The few instances in which the Government envisage this power being applied are to replicate current legislation both in relation to time and where the local authority considers that it is not necessary to undertake a reassessment—for example, because it considers the child or the young person’s needs have not changed significantly. That includes specifically where a reassessment has taken place in the past six months. The circumstances are set out in draft assessment and plan Regulation 24. We do not wish to specify particular circumstances in the Bill at this stage in case strong evidence from the pathfinders suggests any further appropriate use and to make it easier to respond to excellent practice as it emerges over time.
I turn finally to Amendment 175A, I am grateful to the noble Lord, Lord Touhig, for drawing attention to the importance of EHC plans transferring smoothly when a child or young person moves areas. It is vital that children and young people’s needs continue to be met. As the noble Lord, Lord Touhig, observes, we have set out in draft assessment and plan Regulation 15 the process for transferring EHC plans, which is based on the current process for statements. To ensure continuity, it requires that the old local authority must transfer a plan to the new authority within 15 days of becoming aware of the move. The new authority is then legally responsible for maintaining the plan. Following the transfer, the new authority must decide within six weeks whether to undertake a new assessment or merely to review the EHC plan, depending on the needs of the child or young person, and inform the child’s parent or the young person of that decision.
With regard to the review, I agree that there must be a focus on outcomes. Draft assessment and plan Regulation 19 requires reviews to take account of the child or young person’s progress towards achieving the outcomes specified in the plan, which will apply equally to reviews following a transfer.
The noble Lord, Lord Touhig, mentioned the position of servicemen when they move. I absolutely agree with him about the issues that face service families, which is why we have included a specific section in the code giving guidance and support for the children of service families, including when they move area. When families move, the new authority must maintain the plan until there has been a reassessment. The new authority should use existing assessment information where still relevant as set out in Chapter 7 of the draft code. We are content to come back and check that this is covered adequately in the regulations and code. Finally, the noble Baroness, Lady Wilkins, asked about coverage for Traveller children. Broadly, children will be included as part of the regulations on transfers of plans and we
will write to the noble Baroness with further details. I therefore hope that noble Lords will feel able not to press their amendments.