My Lords, both this amendment and Amendment 42 in the name of the noble Countess, Lady Mar, are concerned with the roles of parents, young people and local authorities in making decisions about support for those with education, health and care plans.
Government Amendment 38A is a technical amendment to Clause 42. In the current system, set out in the Education Act 1996, when a statement is maintained for a child or young person the local authority is under a duty to secure the special educational provision specified in it. If a local authority names an independent school or college in the statement as special educational provision it must, under Clause 59, meet the costs of the fees, including any boarding and lodging where relevant. However, the local authority is relieved of its duty to arrange the special educational provision in the statement, including securing a place in a school or college named in a statement of SEN, if the parents or the young person have made suitable alternative arrangements for special educational provision to be made, for example, in an independent school or college or at home.
The Bill introduced to Parliament in February 2013 retained this provision, but when government amendments were introduced in Committee in the other place to
place a duty on heath bodies to arrange the healthcare provision specified in an education, health and care plan, Clause 42 was amended so that, under Clause 42(5), local authorities’ and health bodies’ duties to secure and arrange specified provision would not apply,
“to the extent that the child’s parent or the young person has made suitable alternative arrangements”.
We made this change with the intention of ensuring that, in cases where a parent or young person had made suitable alternative arrangements only for education provision, the duty on responsible health commissioners to arrange required health provision would remain in place. On reflection, that wording is problematic and could have unintended consequences, since it could be interpreted to mean that when a parent or young person makes alternative arrangements for only some of the provision the local authority or health body is only relieved from its duty to make that provision and must secure and arrange the remainder. This would not be sensible or fair.
Amendment 38A would address this issue and ensure that local authorities have a clear duty to secure the special educational provision in a child or young person’s education, health and care plan; it would enable parents or young people to make alternative arrangements; it would require local authorities to satisfy themselves that those arrangements are suitable; and it would enable local authorities to assist parents in making their own arrangements suitable, if they consider it appropriate, without imposing any duty on them to do so. It has not been sufficiently clear that local authorities can assist parents in this way until now and I am pleased that this amendment gives me the opportunity to clarify the position.
Where parents or a young person make alternative arrangements, the local authority must satisfy itself that those arrangements are suitable before it is relieved of its duty to secure the provision. It can only conclude that arrangements are suitable if there is a realistic possibility of them being funded for a reasonable period of time. If it is satisfied, the authority need not name its nominated school or college in the plan and may specify only the type of provision. This is to avoid the school having to keep a place free that the parents have no intention of taking up. If the local authority is not satisfied that the parent or young person’s alternative arrangements are suitable, it could either name another appropriate school or college in the EHC plan or assist parents in making their arrangements suitable, including, if they consider it appropriate, through a financial contribution, though it will be under no obligation to meet the costs of those arrangements.
Where parents make suitable alternative arrangements for educational provision, the health commissioning body is still responsible for arranging the healthcare specified in the child or young person’s EHC plan. If parents make alternative arrangements for healthcare provision, then the health commissioning body would need to satisfy itself that those arrangements were suitable. If the arrangements were not suitable, they would arrange the provision specified in the plan or, if they felt it appropriate, assist the parents in making their own arrangements suitable. We will, of course, clarify this position in the SEN code of practice. I beg to move Amendment 38A.