Schools Bill [HL]

Committee stage
Wednesday 22nd June 2022 Lords Chamber

Committee (5th Day)

16:13

Relevant documents: 2nd Report from the Delegated Powers Committee, 1st Report from the Constitution Committee

Clause 48: Registration

Amendment 112A

Moved by

[Lord Lucas]

112A: Clause 48, page 42, line 2, at end insert—
“(4) Regulations must, in relation to a register under section 436B, make provision about the right of appeal to an independent body against any interpretation or discretion applied by a local authority in compiling the register or in taking action based on information contained in or requested for the register.”Member’s explanatory statement
This amendment is intended to ensure that parents have the ability to argue effectively with a local authority who refuses to accept good reasons for not complying with their requests.

[Lord Lucas (Con)]

My Lords, in moving Amendment 112A, I shall speak to my other amendments in this group. The focus of the group is the relationship between local authorities and home educators, which is well illustrated—we shall come to it later—by the text of Amendment 128A, which reads:

“Local authorities must … recognise that the first responsibility for educating a child lies with its parents … be supportive of those who elect to educate their children at home … recognise that home education is of itself not a safeguarding issue, and … acknowledge that in many instance the decision to home educate reflects failures by other institutions of the state.”


I would add that they also must recognise that home education can be very different from school education. You inherently have much more flexibility in the structure. You do not need to follow all the systems and rules which make a school practical. You may choose to do things very differently.

There are local authorities where relationships are very good. One email sent to me, from someone under Gloucestershire County Council, said that the EHE team are a “genuine delight” and that, “Talking to our caseworker just feels like boasting about how well our daughter is doing and being reassured about any concerns I have by a person with a great deal of knowledge and experience of elective home education.” I have also talked to home educators in Coventry who described the team there as “very well liked, at ease with the children and respectful of parents” and said that 85% of home educators ask for a visit because it is an open conversation and a totally supportive experience. As a result, Coventry has a higher than average rate of school attendance orders, because the team in Coventry knows what is going on and home educators, when they know of a problem elsewhere, pass it on to the team because they know that things will be fairly dealt with by the team.

There are other local authorities—I will not name them in public, but if anyone would like to see the documentation I have on them I would be happy, if I have permission, to share it—where the team appears not to have any relevant experience either of home education or of teaching. There is a totally oppositional attitude to home educators and no understanding that the structures of schools do not necessarily apply to home education. There have been extraordinary exchanges between people who do not appear to have sufficient qualifications to be a teaching assistant and a home educator who has been a teacher for 20 years, asking the most ridiculous questions. Under those circumstances, it does not surprise me that the relationship between the local authority and the home education community breaks down; a lot of difficulties arise because of that.

I do not stick to any particular formula in my amendments in this group, but their overall objective is to suggest to my noble friend that there are ways in which the Bill can incentivise local authorities to act well, so that it is easy to be a good local authority. Being a bad local authority is a path that is not conducive to the efficient exercising of its functions, and therefore it gradually becomes one which is not followed.

I note the breadth of powers given to local authorities in the Bill, in particular the ability to make any demand of a home educator under a totally open new subsection that allows them to ask whatever they want and, if the parent does not provide it, to dump them into school attendance order proceedings without any appeal. That is a system in which it would be tremendously easy to be a bad local authority. Local authorities will have total power over home educators, with no one controlling how those powers are used. There will be no incentive for local authorities to improve. I do not think that is a reflection of the long relationships and discussions that the Department for Education has had with home educators. It was immensely surprising to the home education community that the Bill should be written in this way. I very much hope that we will be able to persuade the Government to make some changes.

Amendment 112A and other amendments suggest that there should be a right of appeal—a space in which a home-educating parent can argue in front of an independent tribunal with a local authority. As we are giving local authorities such huge powers, in fairness, there surely must be some form of appeal—some outside oversight over whether they are being reasonable.

Amendment 130A asks that data held by the local authority should be made routinely available to home educators. If we want a good, open, conversational relationship between good home educators and their local authority, sharing information plays a very important part.

We should have available to us, as legislators—indeed, as the Government—data on the penalties imposed by local authorities. That is a very good indicator of the state of relationships between the home education community and local authorities. We need early indicators in the system so that we can see when things are going right or, maybe, not so right.

Amendment 136ZA brings in the phrase “light touch”. This is one much used in conversation between the Department for Education and home educators. I should really like to know what the department means by it. It startles me to think that some local authorities whose work I have looked at could be defined as light touch, but perhaps it can. I need to understand where the department stands on this. I should like an arrangement where the people in local authorities charged with looking after home education had some relevant qualifications and experience.

If you have in a team someone who knows what home education looks like and someone with strong teaching experience, that seems to be the combination, looking nationwide, that works really well in local authorities. The main thing is that the people in the local authority should have enough experience and qualification to feel confident in the judgments they are making. If not, they have to rely on getting out the baseball bat and beating home educators around the head, because they do not understand the arguments being made. Getting qualifications and a level of performance into local authorities is an important aim.

On Amendments 137B and 137C, I say that being able to tip parents into punitive action after just one fault does not seem the right way: there should be a pattern of behaviour that then requires the whips and scorpions to be got out. Amendment 137B states:

“Except in circumstances of deliberate rule breaking, the school attendance order process must be preceded by a process of communication where the education being provided can be adjusted and services under section 436G offered.”


In other words, this should be a supportive dialogue between the local authority and the home educator. Where the home educator is failing, there are conversations about how things could be made better; where the local authority can help with that process, it does; and only if that process breaks down do we get into the punitive provisions. That is the nature of the relationship between home educators and local authorities in a lot of areas. That would be a better template for the legislation: to take the pattern of behaviour which is current in local authorities where there is a very good relationship between home educators and the local authority, rather than the pattern of behaviour exemplified by the more punitive local authorities.

Amendment 137C is another right of appeal. Amendment 138ZA looks at dealing with a child who is in mid-assessment. If a school recommends a child for assessment for special needs, and then the parent withdraws that child because there is clearly a problem in school and they think home education will be better, that process of assessment ought to be completed before the local authority can tip the parent into a punitive process. The process of assessment is entirely in the hands of the local authority; it can make it fast if it wants to. I know a lot of them have long backlogs on this, but that is up to them—they can prioritise a child if they are worried about them—but they should not be able to tip parents into a school attendance order process where they have failed to provide the assessment that the school has said is necessary.

Similarly, if it is clear to a medical practitioner that a mental health assessment is needed—this would be common in the case of people suffering from school refusal or trauma as a result of events at school, when a proper assessment needs to be made—it seems entirely appropriate that the local authority should wait until that process is complete, and until there is not an independent medical professional standing in the way saying, “No, don’t do this now. We don’t know what the right thing to do for this child is.”

Amendment 138A looks at things in a more general sense. It says that this is a really disruptive process for the family and the child. Local authorities really need a proper justification for what they do and need to ascertain where the child stands in this process.

Amendment 143B asks that a refusal of the revocation of a school attendance order must be reasonable. That may be implicit in the law as it stands, but I would be grateful if my noble friend could confirm it.

Amendment 143F argues that if a parent re-offends, the circumstances should be reinvestigated as they may have changed and things may be different. Just having the ability to reimpose an endless series of penalties does not seem in accordance with the general practice of English law.

Amendment 143I gives the Government an opportunity to justify why stronger penalties are needed. We seem to be entering a level of penalties that I find excessive in the context of not sending your child to school, but I would be interested to listen to what my noble friend said.

Although it is not in this group, Amendment 143IA asks that Ofsted should have oversight of the local authorities’ performance on elective home education, which would be a very constructive way of making sure that local authorities were aware that if they fell down seriously, in looking after home educators, somebody would be on their tail. I beg to move.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

The noble Baroness, Lady Brinton, is participating remotely, and I invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I thank the noble Lord, Lord Lucas, for his introduction to Amendment 112A and the many others in this group. Amendment 112A is important, as it gives parents the right of appeal to a local authority that refuses to accept their reasons for why their child is not being taught in school.

I am particularly supportive of the approach taken by the noble Lord, Lord Lucas: to be seen as being open and positive with parents who want to home educate their children. Some years ago, I saw an excellent example while on a study tour of Education Otherwise in California. I visited the American River Charter School, an independent home school based at Sierra community college, north of Sacramento. It was a parent-driven, teacher-supported, not in the mainstream school, the equivalent of an FE college. Many of the students participate in educational field trips and come together to do lab work with supervising teachers, but only if the parents want it.

16:30

The result is that, through links with the local authorities, the pupils participate much more widely in sports programmes and other elements that are not available in the UK—at least, I have not encountered them. Services and resources are provided to students through a dedicated budget of instructional funds allocated to enrolled students by the school’s board.

Amendment 130 discusses the issue that I raised two groups ago: there must be guaranteed local places to sit national exams for “educated otherwise” students. I am glad to see that here and hope the Minister takes on board the importance of that happening.

Amendments 130A and 134A, in the name of the noble Lord, Lord Lucas, provide for the transparency of data—the former on an annual copy of data related to fines and penalty notices. I agree with that.

I will briefly comment on the last group on Monday, when the Minister said that she would consider whether the register should be published and that she would come back to your Lordships. I cannot rise from my seat before the Minister sits down to say that this matter really concerns me. The publication of this sort of data should not be available to anyone and, if it is not the Government’s intention that it should not be published at all, it should not be brought into law on the say-so of the current Government. The problem we always have is that a future Government may choose to publish that data.

Amendment 138ZA, in the name of the noble Lord, Lord Lucas, echoes my concerns about school attendance orders, as drafted in the Bill, not making it explicit that special educational needs assessments may not have been carried out, that a child is awaiting a mental health assessment, or that—in the case that I have raised in other groups—medical practitioners have recommended that a child should not attend school. This is vital.

Amendment 143I says that the current fines system should be retained and proposes to remove lines 18 to 20 from Clause 50. The current system is set out well on the government website; it is like a ladder of clearly escalating issues: first, a parenting order, then it moves on to an education supervision order, then a school attendance order, and then a fine. It says that each parent can be fined up to £60, which might rise to £120 each if not paid within a certain amount of time. If not paid at all, you may be prosecuted. In the section on prosecution, it says you could get a fine of up to £2,500, a community order or a jail sentence of up to three months, and that the court could also give you a parenting order.

However, Clause 50 of the Bill goes way further than that. It says a person may be liable

“to a fine not exceeding level 3 on the standard scale, or to a term of imprisonment not exceeding 51 weeks, or to both.”

The jump from three months—12 weeks—to 51 weeks is extraordinary and very worrying. As an indicator, at the moment the Sentencing Council guidelines advise six months for threatening with a weapon and six months for a second offence of possessing a weapon. As I know from my experience and that of my colleagues, the person who stalked and harassed me and them for over two years, at over 100 events, was given a 12-month suspended sentence. I am looking forward to hearing the Minister explain why this enormous leap from 12 weeks to 51 weeks is deemed appropriate. Even if it is intended to be used only rarely, it seems very strong indeed. I hope the Minister will reconsider.

In the meantime, I support this amendment. If it were divided on at a later stage, I would certainly hope that these lines are removed from the Bill.

[Baroness Garden of Frognal (LD)]

I shall speak to Amendments 130 and 139 in my name. I can be pretty brief, given the comprehensive outline that the noble Lord, Lord Lucas, has given, and indeed the words from my noble friend Lady Brinton.

Amendment 130 addresses the difficulty and expense of home-educated children sitting public examinations. They need to find a school or examination centre that will accept them, since not all will if they do not know the children and do not wish to see their results reduced by young people who may not have been taught for their exams and whose results may bring down their overall ratings. That is quite a hurdle for many home-educating parents.

Having found somewhere for their children to sit the exams, home schoolers then have to pay for them. That can easily run to hundreds of pounds. Home schoolers are not necessarily wealthy people and may find the cost of exam fees prohibitive. However, home-educated children are entitled to get credit for their knowledge and skills, just like school-educated children. This amendment probes the possibility of financial assistance for children who could otherwise not afford to be awarded GCSEs or A-levels. Could there, for example, be a system for those on universal credit or of limited means to be helped with exam fees?

Amendment 139 suggests that the opinion of the authorities should be supplemented by a suitably qualified independent assessor to ensure that home educators are given a fair hearing if their child is subject to a school attendance order and the parent or guardian feels that it is inappropriate. The noble Lord, Lord Lucas, has already touched on the reasons for that. It is an extra check and balance for those who do not want their child to attend school and feel that the order is not in the best interests of the child, and fear too an overbearing authority. This is surely a measure that the Minister could acknowledge and accept.

[Lord Knight of Weymouth (Lab)]

My Lords, this is an important group of amendments, very well introduced by the noble Lord, Lord Lucas; like the noble Baroness, Lady Garden, I do not propose to spend much time going over the points that he has made. I read the somewhat testy exchanges—when everyone was a bit tired, I think—at the end of the day on Monday, so it is nice to be having a debate about how we can better support parents rather than causing them any anxiety, if that is the concern.

In that context, having some means of appeal is really important. That might be through the ombudsman that the noble Lord, Lord Wei, is proposing in Amendment 171X or by some other means. I have been sat here wondering whether the Office of the Schools Adjudicator might be another possibility of a pre-existing office that could perform the function of refereeing and providing some kind of safeguard against the possibility that some rogue local authorities might overuse some of the powers being talked about; that is a worry, given the variety among local authorities that the noble Lord, Lord Lucas, talked about.

Amendment 130 from the noble Baroness, Lady Garden, about exams, which I put my name to, is important. It is really important that parents have a positive reason to register and are not just doing it because the law tells them to and that if they do not then they will be subject to penalty. This would be one of those positive reasons that we could offer. I am not sure whether the local authority having to find the funds itself is the answer because, as we know, local authorities struggle to find the funds to do much these days. If the Minister were to agree with this, perhaps she could reflect on the national funding formula or some other means whereby the money could find its way to elective home educators so that their children can have a link with a school and an examination centre. That all seems very positive in the wider scheme of things.

I share the concerns of the noble Baroness, Lady Brinton, about the scale of change regarding the penalties being proposed for parents who fail to abide by this. There is a further amendment on school attendance orders and there having to be some kind of judgment about what is suitable education from someone who at least knows something about education; that is also an important safeguard that we could put in to protect parents.

[Lord Wei (Con)]

My Lords, I shall speak to my Amendment 171X on the proposal for an ombudsman to provide protection for home educators. I support many other amendments in the group. I pay tribute to my noble friend Lord Lucas for putting this focus on the need to provide protection from overzealous local authorities.

I also need to apologise for not speaking at Second Reading due to a variety of home and personal health matters. I also need to declare an interest, in that I am part of a family that home educates. I cannot disclose all the details, which are private, but I have two sons whom primarily my wife home educates. She is incredibly well qualified for that work. They are teenagers and their education is going incredibly well. I fear I might be the only Peer in that situation, but if there are any others we might be able to form a little club.

I want primarily to speak from this perspective, as somebody from a home education family, on the Bill and the relevant clauses. First, as many others have done, I honour the many parents and caregivers, including my wife, who work tirelessly to raise their children, often at no cost to the state, for their outstanding outcomes and work in a variety of different contexts and for a variety of different reasons. If noble Lords want to find out more about how amazing home education can be, an exhibition has just been announced in Parliament in the Upper Waiting Hall, commencing the week of 4 July, which I highly recommend noble Lords pop in and see.

I need to start by saying that I cannot support the Bill. I believe much of it was designed after consultation merely to make the lives of officials in the department and at large in local authorities easier. Not enough is in it to help parents and families, or indeed society. It feels like it was a bit of a one-sided consultation.

We shall see how colleagues in the other place view the Bill. Arguably, the way it is currently drafted in many parts is an affront to freedom and makes a mockery of our claims to be about rolling back the state and enabling ordinary citizens to take back control. If it transpires, as has been reported in the press, that the Bill was launched without proper political vetting and that it will be radically altered by the other place when the politicians have time to look at it, then we all have to ask why our time is being wasted with what appears to be an incredibly lazy piece of legislation, designed to make officials’ lives easier, not those of citizens.

Frankly, I would rather that this part of the Bill, on registration of children who are not at school, which includes many in home education, did not exist, especially in its current form. It has not been thought through; more consultation is needed. Registration is a hammer to crack a nut, the nut being bad actors—I commend the noble Lord, Lord Soley, on raising this very real issue; it is not one that we want to sweep under the carpet—such as those in informal schools who, frankly, would raise children to oppose the existence of this country, or commit future generations to violence against citizens of this country, or inflict neglect and abuse. Many of these situations have been talked about.

Largely, I feel that this has been designed to fix an IT problem. As much was confirmed to me by a government representative, who I will not mention, who I discussed this with. I said that the Government could get this data anyway: we have birth certificates, local authorities ask who is in households and we have pupil registration in formal schools. We could triangulate that data—I come from an IT background; that is the kind of thing we can do with IT—to find out who was not in school. But of course, that is too difficult for the Government to do right now; IT is a very difficult area. So, to make us do all the work for local authorities and government, a registration programme is to be brought in when we could have fixed it with good IT and good use of the powers that already exist to safeguard children who are suspected of being abused or neglected. This is on top of a risk that the data, once collected, could be used intentionally or unintentionally to harm, or get hacked, which has happened.

I will not say much more on this point because I want to get to my amendment, but I suggest that registration could be voluntary to begin with but highly incentivised, perhaps using the Oak National Academy, the online school set up by the Government, as a resource and a referrer, which could provide amazing data if parents consented to it being provided and analysed.

What incentives might there be for signing up voluntarily to such a scheme? We talked about the cost of exams and paying for them. It costs £150 to £200 per GCSE; I am feeling the pain of that right now. Many families have to fork out a huge amount of money for those exams.

Another incentive might be the provision of forecast grades in the event of situations such as Covid. This was brought home for many home-educating families, whose children basically had to resit because no resource was available; children in school could get forecast grades from their teachers. The Oak National Academy might be a place that could provide such forecasts, based on its data.

16:45

We should require publicly funded providers of education, such as museums, to support home education. Many do so generously, and London is probably one of the best places in the world for home education. From a very young age, my children went to science lectures at the Royal Institution to get science teaching from some of the world’s best scientists.

Many home educators understand the need to catch bad actors and to design mechanisms to do this, but I do not believe that compulsory registration as a first resort is the way to achieve this; it is certainly not the way to carry them with you. I push back against the notion that this legislation will improve the lives of children by collecting lots of data and doing lots of monitoring, when there are already many other ways to achieve the ultimate goal of catching those bad actors.

I acknowledge that there are bad actors out there; there is off-rolling and abuse. If we have to do something, I suggest that we limit it to very defined situations and collect the least data possible, and only when specific criteria have been met—not, as I have been told, to catch home educators who perhaps are not teaching their children some of the things in PSHE at primary age that they would rather their children did not learn until later—or to catch those who are using illegal schools and faking it, and many of the other scenarios that have been talked about. I believe that in those situations, officials should be granted some powers to query home education as the excuse for practices we have already talked about—essentially like a warrant—but only in those special cases and not as a blanket power.

This brings me to the main issue I want to raise through my amendment. Even if the other place passes this Bill, despite the clear issues around data privacy and freedom and the way it has been written without much proper consultation with the home education community, I do not believe it will be implemented for many years, because some in the home education community are incredibly well resourced. They will take the Government to court, put injunctions on this legislation and do everything to block it. It will make the migration controversy we have had in the last few weeks look like a walk in the park, because some of these home-educating families past and present are incredibly well networked in the legal world and so on. Why go through all this trouble and cost to make an enemy of the home education community by doing this, when you could work with it and still achieve the same end goal?

Why push many of the bad actors, who, even when you have the legislation, will just go into the black market and disappear? They will go to a farm where you cannot find them or to another country. The very people you are trying to protect from radicalisation or other issues of concern might not even be on the system once you have built it, and lost all this good will.

Despite the assurances given, and given the determination to rush through this mandatory registration, the vague and wide-ranging reasons for requesting data and the risk of mistaken situations or intentions, I feel we need an ombudsman, ideally independent from government. I have been told that there are ways for parents to appeal to a local authority, the department or the Minister if they suspect there is a problem, but I am not sure that those representatives would truly understand home education, which is culturally so different from public education and schooling—in fact, that is its strength. It would be like asking the cat to listen to the mouse’s appeal.

The fact that Part 3 of the Bill is called “Children not in school” evidences a total lack of understanding of how home education works. They are learning. They are in a school of sorts, just not a school run or paid for by the Government.

Such an ombudsman would listen to parents if they felt persecuted but also be a sounding board for local authorities and prevent court cases through mediation. It should ideally be voluntary, in that the role should be filled by somebody who is doing it voluntarily, as many home educators are, and not paid for by the Government or any other party. They could even work with the Oak National Academy to improve the resources, skill levels and data sharing made available to home educators, with consent, which would then enable local authorities to focus on going after the bad guys and not the vast majority of home educators, who need help, not hindrance or overzealous monitoring.

[Lord Soley (Lab)]

I would like to come in on Amendment 112A, in the name of the noble Lord, Lord Lucas, and say I agree with a great deal of what he said. Indeed, we have discussed it in the past; there is an issue here. I am not convinced by the idea of the noble Lord, Lord Wei, that we can do it all by current IT methods—I think there are problems there. Although I have some sympathy with some of the things he is saying, actually this is a very difficult area.

Amendment 112A is, to my mind, incredibly important, because one of the things we have to do is work out the best type of appeal system. My starting point is really where I ended up when I spoke on Monday, which is to say that this legislation on home education needs to be seen as supportive, not punitive. That is very important. If we can develop a supportive method of local authorities and home educators co-operating together, there will not be many problems in the future, and ideally, practices and strategies could be developed, both by local authorities and by home educators, for dealing with the problems that will inevitably emerge.

The appeal system must deal with many of the issues that the noble Lord, Lord Lucas, raised. When I was consulting widely on my Bill, I had such a wide range of claims as to why local authorities were doing it badly. I cannot go through them all now, but some suggested that a local authority was blind to the individual needs of the child. It might have been about educational achievement, but it might also have been about behaviour, because at times it was clear that the school was pushing the child out of the school because their behaviour was so challenging. So you actually have a problem that is, in a way, the reverse of what we expect—the school saying, “This kid is a problem: let’s get them out of the school.” That has to be dealt with, too. The rights of the parents to appeal to an independent person or organisation is, to my mind, incredibly important. As I say, I could give many other examples that came to me when I was consulting on the Bill.

But I also have to say that this is two-sided, and it is the classic problem we deal with in Parliament, time and time again, of the balance between individual rights and the rights of society, to protect the vulnerable. At times, some of those home-educated children are vulnerable, and that is something we have to face—and it is difficult to face. As I said on Monday, my knowledge of education generally is not particularly good, but as a former probation officer and senior probation officer of 40-odd years before I became an MP, and having taken children into care on occasion when I had to when social services could not do so for legal reasons, I can tell noble Lords that it is not just a difficult decision: some parents are incredibly cunning, incredibly devious and incredibly cruel. That comes out if you talk to someone like the noble Lord, Lord Laming, who has chaired committees dealing with abuse. You realise how clever some cruel people can be in fooling anyone—doctors, probation officers, social workers, the general public, neighbours, all sorts of people—into thinking everything is all right.

One thing in my mind, and I want to make this clear, is that when I put that Bill forward, I put it forward as an education measure, not a social or psychological measure. But in doing so, I recognised that if a child was not being given a proper education—and by proper education I do not mean some set educational system but growing up able to read, write and be numerate—we had to be able to be sure that that was being done. The interesting thing for me is that, of all the people I talked to about home education, when I dealing with the Bill, it was actually a small but significant minority who said that the education authority must never be allowed to see the child or should not see the child with them. I remember one parent saying to me, when I said, “Well, why should they not see the child?”, that the child does not like being seen by a stranger. That immediately made me raise my eyebrows, because if a child of school age is nervous about being seen by a stranger, you wonder how the education is being done—unless they have got special needs, because there may be circumstances in which they will be nervous about being seen by a stranger. But by and large, children are far more resilient than we give them credit for. Indeed, one of the problems in society, I often think, is that parents are overprotective, and we do not recognise that children are actually very resilient and can cope with situations like this.

But what I want to make clear here is that the problem is two-way, exactly as the noble Lord, Lord Lucas, described. It is also that, at times, the education authority will have a concern that the child is not being properly educated. If you say that the education authority cannot see the child, how will it ever know? One person said to me that the authority could ask to see written work. But you will not even know whether that child did the written work. So it is not just a measure about behaviour here, or about abuse or radicalisation; it is also about whether the child is being properly educated. As I have said, I do not mean some particular system of education, because I know that troubles quite a few home educators; it is about being able to cope in society as you grow up, and I gave an example on Monday of someone who was left very vulnerable because of the way that home education was done.

My argument here, and this is something I ask the Minister to really take on board—it is a difficult one—is about how to get an appeal system that can work in both directions. It is absolutely right that the parent can appeal against the local authority that does not understand the problems that they or the child are facing, but it has also got to be one where the education authority can say, “We are not absolutely sure that this child is being educated. We are not absolutely sure that there is not some more nefarious process.” Indeed, one of the cases I took up before as a result of my Bill that got some publicity in the press involved three children, if I remember right, in one of the London local authorities who were being trafficked. Two of them just disappeared and, to my knowledge, though I have not checked up recently, have never been seen since. Now, the local authority—or to be more precise, the school—was worried about what was happening, because it knew what had happened to one of the children but did not know what had happened to the other two.

So I say: if you do not have a system where the local authority can say, “We need to be able to see the child, and see that the child is receiving an education”, then you have got a system that is almost designed to blow up in your face. Sooner or later, at some abuse inquiry or other inquiry into a case, you will find it being said, “Well, we the education authority were not allowed to see the child, so we could not know.” I ask those Members who are taking a very clear view on the rights of the parent here to recognise that the rights of the child are absolutely important: in key situations, they override the rights of the parent. I think all of us accept that in other circumstances—if you did not, it would be very bizarre; you would be arguing that whatever the parent did to the child was acceptable.

I have not got a model for the Minister, I am sorry to say. I wish I could say, “This is the way to do it”—I have not got that. I would be very willing to engage with her in further discussions, if that would be helpful, and I think people like the noble Lord, Lord Laming, might be very useful on this too. What you need is a system designed to be supportive, not punitive. That is the key to this. Then you start by saying, “We know what a lot of these parents want,” because the examples are already there—the noble Lord, Lord Lucas, gave them. Those are the ones who appeal, but we also need the ability of the local authority or education authority to appeal against not being able to see the child, where it is worried about the child and might need to visit more often than it would do otherwise. I think that is profoundly important. As I say, I would be happy to offer whatever help I can in getting that bit right.

As I said on Monday, I commend the Government for taking my Bill on board and delivering on it in the way that they have. It is very commendable, but this is the most difficult area. The education authority must have the right to see the child and must have some rights over how often and in what circumstances. However, that needs to be appealable in both directions: by parents and by the education authority.

17:00

[Lord Shipley (LD)]

My Lords, I will speak to Amendment 140 but before that I note that the debate has raised a number of fundamental issues. Listening to it tells me that we have another set of issues that the Government need to take away and think carefully about. I understand that Report is due to start in little over a fortnight. The noble Lord, Lord Soley, is absolutely correct about the need to have these discussions; fundamental issues are being debated around whether there should be an appeals system and what kind of system it should be, and what the exact role of a local authority is. The noble Lord made a very important point: the Bill should be about supporting home educators and not about a punitive system.

I want to give another example of how I see the problem in this group. My Amendment 140

“aims to clarify the provisions on school attendance orders to ensure that school attendance orders should only be issued when in the opinion of the local authority this course of action is in the best interest of the child.”

At the moment, the Bill reads:

“A local authority in England must serve an order under this section 10 on a person”,


and gives reasons in paragraphs (a) and (b). Paragraph (c) gives the reason that

“in the opinion of the authority it is expedient that the child should attend school.”

What is the meaning of the word “expedient”? Sometimes these words have meanings that maybe the Government do not intend. My interpretation of the word “expedient” is that it is about attaining an end. It is a convenience to attain the end, but it may not be right to attain that end.

That has led me to consider who in a local authority is responsible for making a decision. Ministers may reply that this will all be shown to us in guidance. I am quite bothered about that, because a huge number of issues have been raised, in all parts of the Chamber, about how this system will actually work.

[Lord Bellingham (Con)]

Does the noble Lord agree that the word “expediency” seems to display a state of mind and a prejudice against home learning? It will, as he rightly points out, put undue power in the hands of officials.

[Lord Shipley (LD)]

I agree with the noble Lord that it could well do that. I noted the words of the noble Lord, Lord Lucas—I hope I quote him correctly. He said that it will be tremendously easy to be a bad local authority. Given the way that this has all been written, that may prove to be true. He also said that there needs to be oversight as to whether a local authority is being reasonable. There has to be a system to assess this. I spent many years in a local authority environment. Officers and councillors will change, and case histories may not be fully understood, and yet decisions are being made. I do not know what protections are in place against poor-quality decisions being made.

My amendment says that the absolute requirement is the best interest of the child, not that a decision is deemed by a local authority to be expedient. I should be grateful if the Minister could respond as to why the Bill has been written in this way. It may be convenient to be expedient but it may not be proper. For that reason, we need to have a further discussion. I do not see how Report can happen in a fortnight to three weeks’ time. The Bill needs its Report deferred until the autumn.

[Lord Blackwell (Con)]

My Lords, I will speak briefly in support of Amendment 112A, which relates to a point that I raised at Second Reading. As the noble Lord, Lord Soley, said, there has to be a check on parents to avoid those who might abuse the freedoms. The local authority may be the right place to do that but the merits or otherwise of home education versus school education, and the structure of the curriculum, can end up as matters of educational doctrine. If a local education authority takes a view that starts as biased against home education and the freedoms within, it may well take a view that is prejudicial to the parents, in the way in which my noble friend Lord Lucas said.

There has to be a right for parents to go to some appeal process, whether in the form of the amendment or the ombudsman proposed by my noble friend Lord Wei. It may well be that the objections to the way in which the local authority runs its schools is the primary reason why somebody wants to educate their children separately. To have that education authority then be judge and jury over whether the child is being given an adequate alternative education just allows one set of educational doctrines to run roughshod over other people’s rights.

I completely accept the need for checks on parents but, as others have said, my noble friend the Minister needs to think about how, when the Bill comes back, there can be proper provision to deal with this matter—whether in the form of the amendment or something similar.

[Baroness Whitaker (Lab)]

My Lords, I may have omitted to declare an interest as chair of the Department for Education stakeholders’ group and other similar interests listed in the register. If so, my apologies.

I have added my name to Amendment 143I in the name of the noble Lord, Lord Lucas. I should make it clear that it is the increase in fines and custody that I have difficulty with. It might be better to do away with fines altogether.

I am heartened by the statement in the department’s factsheet that

“The government does not intend to criminalise parents”


in respect of school attendance orders. But Clause 50 does not achieve this aim.

When I was a magistrate, I recall cases of parents who, with the best will in the world, simply could not control their children. They were rarely parents who could manage the fines prescribed. As for the custodial option, the Farmer review emphasised how

“disruptive and costly short sentences are to family life”

and ties. What does the imprisonment of a parent do for a child’s attitude to school?

There are deep reasons for school refusal that should be investigated, as I also recall from my time as a teacher. Different means to ensure the essential participation in education that children must have must be developed, and indeed in some schools are adopted, but in this time of a cost of living crisis, at least we should not increase the penalties, which can be justified in very few cases.

In conclusion, I take issue with the “hammers and nuts” of the noble Lord, Lord Wei. The nut of not being in school is a very large nut indeed. Of course there are parents who educate their children well and who are going to have no trouble with a register, although I quite understand that there needs to be some clarity, but children who are badly educated or not educated account for a much larger number. It may be that noble Lords do not come into contact with these children very often. In other debates in this Committee, we have spoken about where these children are and why they are not educated. It would take a lot of time to go through this, but it is a much larger number than the number of children who are well educated. We really must do something about this. That is why the register is a good idea.

[Lord Wei (Con)]

My Lords, I will clarify my position. A number of noble Lords have mentioned—and perhaps implied—that what I was trying to say was that we do not go after these bad actors and do not pursue those using home education as an excuse to provide a poor, non-existent or abusive context for learning or non-learning. That is not what I am saying. I am actually in favour of strengthening the use of other means for the identification and pursuing of families, parents or caregivers who are not home educating and are instead using it as a cover for their practices. Personally, I think we should be as hard as we can on that and strengthen our response as much as possible, whether through data, local authorities or other action.

Right now, some people are using home education as an excuse to say, “Stay away; don’t look here; go away”. However, if the ombudsman, or any other mechanism, were to agree with the local authority that there are good grounds to pursue families such as these and ask for any kind of information it wants—and if, on the evidence, if it looks as though home education is not happening—then, yes, let us go after those many families who are thought not really to be home educating. In addition, let us support those families who are struggling. I did not want to be misunderstood on that front.

However, my main concern is about where there are miscarriages of justice and we get into matters of educational philosophy. I ask noble Lords to consider Finland, where education is not really monitored until the very end. Nevertheless, Finland has pretty much the best education in the world because it does not spend 30% of time in education—as we do—monitoring, testing and checking the learning; the Finns just let the learning happen and train the teachers. I believe teachers there are given the equivalent of bankers’ salaries to make them some of the best education and learning facilitators—if you like—in the world. I would therefore just caution against this monitoring and the need to know what people are doing—I do not think we need to do this. If we have suspicions that what is going on is bad, we need to pursue this and use every power we can to sort that out. However, I am not sure that it is the right approach to ask about everyone in the country who is doing home education—whether good or bad—just because they might be doing something wrong. The ombudsman would make sense of this; it would also make sense not to put families under such an investigatory lens for too long. I have friends who have waited two years for national insurance numbers for their teenagers. Imagine a home-educating family having to wait two years, just to be told that they are not abusing the system but are instead teaching well.

[Lord Soley (Lab)]

My Lords, I suggest to the noble Lord that if we look at this as a supportive, not punitive, measure, we need not get into the trap he is describing.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I rise briefly to support the tenor of many of the amendments in this group, as explained by the noble Lord, Lord Lucas: they strengthen parents’ hands against any overbearing local authorities. That is not to suggest that all local authorities will be overbearing, but it ensures that they are not necessarily interpreting their role always as one of policing. This is all about balancing powers and having a sense of proportionality. I like the idea of the home school ombudsman suggested by the noble Lord, Lord Wei, although I would rather it were not needed because I do not like lots of this part of the Schools Bill.

I listened carefully, in particular, to what the noble Lord, Lord Soley, said, including his last point on this being supportive, not punitive. Those points are very important, but I want to raise my qualms about this. Of course, those noble Lords who raised the point about bad actors are correct: some parents are cruel and some represent a threat to their children. However, in a free society, do we not assume that the vast majority of parents are not a threat to their children? At the moment, as far as I know, we have not nationalised parenting. We are not saying that we are better at doing it than parents; we assume that parents are good at it.

17:15

I am nervous that, according to this conversation, bad home schooling is being used as a means of abuse and presented as the tip of an iceberg, as though we do not know what is going on behind closed doors. This implies that there is a relationship between those who choose to home school and abusive practices. I want to kick back against that.

The emphasis has been on the rights of children, as though their rights are in contradistinction to those of their parents. It is as though parents are going round snatching all the rights of children and we should let the state and the local authority be the arbiters of protecting children. I hate to mention it, but the state as parent has a bit of a mixed record: ask the young women of Oldham who were sexually abused in plain sight of state authorities—the report on this is out now—whether it is likely that parents or other people would be the abusers in that instance. I am concerned by the tenor of the discussion because, in Committee on Monday, the Minister warned us against the tone of our language. She is right; nobody wants to hype up matters or scaremonger. But in our discussions about home schooling, I did not raise all the issues of abuse; the issues of abuse have come up in the course of a discussion about home schooling. It is understandable that many people involved in home schooling feel anxious that there is slippage between those sorts of things.

I like these amendments because we need to say to local authorities, if there is to be an intervention, that they should not have an implicit presumption that there is something dodgy about children not being in school and being educated outside a school setting. There is no law against that at the moment. The reality is that nobody has a right to schooling. The law does not say that you have to be schooled; it says that you have to be educated. The majority do so through schools, but not everybody does and, as far as I know, the law is not trying to change that. We assume that this is part and parcel of a free society; it is a choice that people have. However, if we keep talking about bad actors and abuse whenever we discuss it, it is not surprising that those who choose to educate their children outside school are anxious about what the Bill is trying to do.

[Lord Addington (LD)]

My Lords, I shall come in briefly on this because I did not put my name to my noble friend’s amendment on examinations. I am sorry to go back to a smaller point, but one thing that happens in education is that you usually need a certificate to carry on. It is your pathway to the next step. I have not been deaf to what has been said about the rights of home education but, to go back to one of the building blocks of our system, to gain access to the next stage of education, training or employment, you generally need the examination that proves you have done it. It does not prove much else; it just proves you have been through the process and reached a certain point. I hope the state will allow and support people to get the proof that says they have done the work to get through. If you do not have it, everything shuts down suddenly. You cannot do much else; it does not matter if you can quote Shakespeare fluently, you have still failed English if you do not have the qualification.

Think also about the home-schooling groups who have special educational needs, such as some of the groups I have met. They will sometimes need help and structure to be able to take that exam. It will be important to have some form of interaction around that; it is an important point in their process. The Government have been very keen on testing whether education is successful, usually using examination results, so if home education is to do anything, it needs that to go through.

I cannot resist making a comment about my noble friend Lord Shipley’s statement about having “expedient” in a Bill and not defining how it is used. If you wanted to cause trouble—I suspect somebody in the department was having a bad day when they drafted this—that was an excellent way of doing it; I congratulate them. Unless we get some clarification, and realise that we are trying to make sure that those who are doing things well are supported and those who are doing things badly are identified and stopped if necessary, we are going to have carnage when we come to Report.

[Lord Young of Norwood Green (Lab)]

My Lords, I support the principle of the amendment in the name of the noble Lord, Lord Lucas, that there should be a right of appeal, but some of the language was not helpful. He constantly used the word “punitive” if any local authority intervenes in any way. As my noble friend Lord Soley said, this is a difficult balancing act to get right, and we have to be careful of the language that we use.

I know—to reassure the noble Lord, Lord Wei—of plenty of people, friends of mine, who are really good home educators. They have a different approach, and I do not think anyone would be opposed to that. They are not the people who worry me. As my noble friend Lady Whitaker said, we have a lot of experience in this area; there are unfortunately others who do not.

This House has a duty to do two things: to ensure that the legislation is fair and capable of not penalising people who understandably prefer their children to be home educated; but we also have a responsibility to protect those children, as children do have rights. I profoundly disagree with the noble Baroness, Lady Fox—of course children have rights. We cannot absolve ourselves of that responsibility.

It is a difficult one for the Government—they cannot duck it. I started to look up whether “expedient” was the right word, but that is not what concerns me. I am concerned that while there is a right for people to home educate their children, provided they act responsibly, there is nothing wrong with local authorities having a list and being able to assure themselves that it is taking place in an appropriate manner. It should not be seen as punitive—I agree with that—but it does not absolve them from asking some questions. I agree with my noble friend Lord Soley that a child has to be seen. I have had personal experience of cases where parents have deliberately tried to ensure that the children were not seen. These are real threats to children. We have a responsibility to protect them and to ensure that the way Government monitor home education is fair. On balance, I support the right of appeal. I look forward to the Minister’s response.

[Lord Grocott (Lab)]

My Lords, I have listened to this debate carefully, and it has been extremely sensitively presented, but it has raised a lot of questions. I shall certainly not talk about home schooling, on which I have no expertise whatever, but I am going to make a comment about procedure, of which I have a learnt a little over the years.

This is not the first group of amendments where I have sensed there is serious need for proper discussion between Committee and Report. It has alarmed me, as the noble Lord, Lord Shipley, mentioned, that the date being pencilled in for Report is the week beginning 10 July. We will probably not finish Committee stage until Monday 27 June. The minimum period between Committee and Report is 14 days. We would be abusing Standing Orders, or require a special resolution, to reduce it further.

I do not want to inflame the conversation, but this badly prepared Bill is crying out to have a longer period between Committee and Report. The only excuse that the Government can make—it is not an excuse but a genuine problem that Governments face—is that towards the end of a parliamentary Session there is urgent time pressure to apply the minimum gaps between Committee and Report. However, that is not the case here, right at the beginning of a Session. When the Commons have tons of Bills to consider and we have a very small number, there is no pressing requirement for the Government to apply the minimum gap.

I hope that it does not sound like a threat when I give notice that I think that there are many people in this House, on all sides, who feel that it is important for there to be a proper gap. There are mechanisms with any Chamber for majorities, if a majority exists, to ensure that this happens. I hope that it does not come to anything like that, but I urge the Government to think carefully about doing as the noble Lord, Lord Shipley, said, and allowing Report to take place in the autumn.

[Lord Storey (LD)]

My Lords, I declare an interest as a vice-president of the Local Government Association.

I echo the two phrases that the noble Lord, Lord Soley, used: we want to protect the vulnerable and protect the rights of children. There are some amazing home educators who do an amazing job, but there are also some amazing local authorities which do a very good job as well. The noble Lord, Lord Lucas, praised local authorities, and I pay tribute to my former local authority. We had a boy with a phobia of being in school who had to be home educated. It was not because his single-parent mum, a nurse, wanted that, but because we just could not physically get him into school, so we home educated him. And guess what? Knowsley LA—I will name-check them—supported my school in doing that, in financial terms as well.

There are lots of examples of good local authorities, just as there are hundreds of thousands of examples of good home educators, but it should not be “us and them”. Disagreeing with whoever said it, I like the language used by the noble Lord, Lord Lucas. This is an opportunity to reset the dial in terms of home education, to do the things that protect the vulnerable and protect the child, but to ensure that local authorities work with home educators. There are all sorts of ways in which we can do that.

Hopefully, if we do it that way, in a few years’ time, home educators will realise the value and importance of local authorities and how much they can bring to the table. Perhaps there are ways of doing it. I like the suggestion by the noble Lord, Lord Wei, of an ombudsperson. That might be a mechanism for ensuring that home educators do not feel threatened, because they would know that there is a way of dealing with it. As long as that does not lead to a massive increase in bureaucracy, maybe we should consider it.

Let us also remind ourselves of an important point which has not yet been made. Through formula funding, every child who goes to school is worth a sum of money; is it £6,400? Home educators do not get that money, so every child who is not taught at school but taught at home saves the Government money and those home educators have to pay for it. They give up not only their time but considerable money to home educate. Therefore, it seems sensible that we should show willing and give something back to home educators. Maybe one way would be by taking Amendment 130, tabled by my noble friend Lady Garden, and looking at supporting them when they want to take examinations.

17:30

For example, when we have established this new relationship, we could ensure that local authorities give learning resources and materials to home educators, if they want them.

I want to talk about attendance, which is a very important matter. The noble Lord, Lord Knight, and the noble Baroness, Lady Morris, will recall that the Blair Government put great store on attendance and rightly so. They put great store on children not being permanently suspended from school. When I had a welcome meeting for parents, I would say, “Look, the most important thing you can do for your child is to make sure they are in school every single day”—they cannot be if they are really ill, but the more school they miss the more learning they miss. You can do this in two ways: you can either use a stick and beat up or threaten parents, or you can use a carrot and encourage them. Most schools try to celebrate and reward good attendance, and this must be the way to do it, because language is important. Of course, there are cases of parents not sending their children into school and they do them a total disservice, but I am sure there are ways we can get around this. There are charities that have all sorts of good ideas about how to encourage good attendance, and we should be listening to them and considering or adopting some of their ideas.

The noble Lord, Lord Wei, mentioned Finland and many do—I remember Michael Gove always going on about Finland—but people always mention Finland in regard to their own particular issue; they never mention Finland as a whole. I agree with the noble Lord, but we should therefore adopt all the other things that Finland does: every teacher must have a master’s degree; every teacher must be paid a Rolls-Royce of a salary; every pupil has to—et cetera. Let us not just dip into the little bits of Finland that we like.

It is hugely important that we get this right. I quite agree with the noble Lord, Lord Grocott, and would rather go the extra mile, even if it means another week or whatever it is, so that we do what is best for our children. This is not a race to get to the finishing tape; it is about making sure that we end up with legislation with which we all agree.

[Lord Wei (Con)]

I am sorry to interrupt again, but the point about Finland is important, because many of us in education policy—I helped to set up Teach First—have studied this material and I do not believe Finland is as exceptional as people make it out to be. I brought Professor Hattie over 10 years ago, who is a researcher who studied 15,000 randomised control studies on education—the noble Lord, Lord Knight, knows what I am talking about. He looked at 30 million children across thousands of studies and found three things that affected their education the most by a standard deviation. They were simple: how well does the teacher, or the parent in home education, know the child? How difficult is the work? If it is too hard or too easy, it makes a big difference. And when they mark their work or give feedback, how good is that feedback? Those three things can work in any system or country, whether private or public. All the things we argue about in politics—private/public, the size of the class and teacher pay—were shown to make a limited difference in the randomised studies. Incidentally, televisions and screens were very bad, and keeping kids back a year took things back by a standard deviation.

We could debate Finland for a long time, but I would argue that home education has many of the hallmarks that the Finnish enjoy. They are: an incredibly great relationship between the well-paid teacher and the child; and the time, because they are not being monitored all the time, to set work at an appropriate level; and to give great feedback.

[Lord Storey (LD)]

I thank the noble Lord for that and would, at some point, like to talk to him about Finland. One of the other things we forget is that, just as a teacher in the classroom—I still miss teaching and miss my time in the classroom, because I got a great deal from that—home educators get a great deal from being with their children, learning with them and teaching them. We forget the importance that can have for the family home and for parents, whether they are a family or a single parent.

I end by going back to the point I was making: it is really important that we get this right. This is an opportunity to reset the dial, so that we achieve what we are all trying to get.

[Lord Davies of Brixton (Lab)]

My Lords, I missed the opportunity to speak before the Front-Bench spokesperson got up. The point I want to make on home schooling is that it is as much about the rights of the child as it is about the rights of the parent. In the debates on Monday and today, I think that we have heard too much about the rights of the parents, but the rights of the child not to be abused and to get a decent education are important. They are not important; they are crucial. Those rights might be a counterpoint to those of the parents.

The noble Baroness, Lady Fox, asked a rhetorical question: is the state going to adjudicate? The answer is yes. Who else will adjudicate between the rights of the parent and the rights of the child? The education authority and the social services authority clearly have crucial roles there. Noble Lords need only cast their minds back to all the dreadful cases that have occurred where the school or social services have failed. This is not about home education. What is notable about many cases of child abuse is that those children were at school, although their absence from school too frequently was a hallmark that should have been picked up. The local education authority and the local authority more generally have an important role. They should not be demonised, in the way some speakers have suggested, as if the hallmarks were bureaucracy and interfering with parental rights.

I have two more points, the first of which is on the point of the noble Lord, Lord Wei, on data. I am afraid he made two conflicting points: first, that the data was available anyway and, secondly, that it would be hacked. If the data is available anyway, it can be hacked.

The other point is a genuine, not a rhetorical, question for the Minister. Noble Lords have referred to decisions made by the local authority. Do they not come under the aegis of the Local Government Ombudsman in any event? Why do we need a special ombudsman service? If the Government are trying to cut back on bureaucracy, they can use the tried and tested system we already have.

[Baroness Fox of Buckley (Non-Afl)]

Before the noble Lord sits down, I just want to clarify or ask a question. At the moment, we have a system in which social services or child protection agencies, quite rightly, are the part of the state that intervenes in those terrible cases where we suspect that a child is being abused. Is he not concerned if, through its education role, the local authority now has to do that job? That is almost the implication. In schooling, we have the phrase “in loco parentis”: the idea is that parents entrust their child to teachers and the education authority, because they say that “You educate them, but we parent them.” Is there not a danger of posing a conflict between parents and children in this competition of rights? For the majority of the time, that is not a problem. Even when it is, the appropriate body would be social services. I am worried about education being dragged into what is effectively social services. Keeping an eye on kids is one thing; it is not the same as being social workers with their expertise.

[Baroness Wilcox of Newport (Lab)]

Sorry, I was just waiting, because every time I have tried to stand up someone has spoken. I am glad that the noble Lord, Lord Storey, reminded me that I should declare my interest as a vice-president of the Local Government Association—hard won and well deserved, I think.

We have heard a fascinating debate with a wide range of views. It is the first time that I have had the pleasure of listening to the noble Lord, Lord Wei. We could have so many discussions about Finland and Teach First, but he was really quite amazing at contextualising the Bill at the beginning of his remarks. It is very interesting that he comes from his Government’s perspective, but he put us firmly in the context of what he saw that is wrong about it. That is what we have been talking about over the past five days. I appreciate those comments.

Most home-schooling parents are, of course, wonderfully motivated and they deserve our full support, but we need to safeguard children. To pick up the right of appeal issue from the noble Lord, Lord Lucas, as mentioned by my noble friend Lord Knight, we have an excellent local authority model in the form of school admission appeal panels, comprising independent individuals with no links to the local authority. They give impartial judgments on children’s admission to schools. So, there are good models out there.

We know that, under the Education Act 1996, parents are responsible for ensuring that the education provided is sufficient, full-time and suitable to age and ability. They can choose to employ private tutors to assist them—there is no requirement, of course. Learning can take place in different locations and is not limited to the child’s home.

We have not mentioned Covid during this debate, which caused a huge increase in home schooling. The Association of Directors of Children’s Services estimated that the number of children being home educated at some point during 2020-21 was 115,542. That is a 34% increase on the 2019-20 total. It further remarked that in many cases, home schooling

“does not seem the most appropriate route for the children concerned.”

So, concerns have been raised. This has been a long debate, so I will draw my comments to a close. We are therefore keen to follow this register’s impact as it is developed and implemented across England.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, I thank you all for your thoughtful contributions. I start by saying that I could not agree more with my noble friend Lord Lucas. I had the pleasure of talking to a number of home educators from Gloucestershire yesterday and to the local authority, thanks to an introduction from my honourable friend Siobhan Baillie. Clearly, the relationships between the two were extremely strong and good, as my noble friend pointed out.

I will start my remarks with Amendments 112A and 137C, tabled by my noble friend Lord Lucas, and Amendment 171X from my noble friend Lord Wei. The issues of appeal are extremely important. I will summarise the current routes for your Lordships, but also make some commitments to the Committee about how we can make sure that the concerns that have been aired this afternoon, and by home educators I have spoken to, can be addressed.

17:45

As your Lordships are aware, several existing routes are already available to parents, such as a local authority’s internal complaints procedure, the Local Government and Social Care Ombudsman, which the noble Lord, Lord Davies, referred to, and the Secretary of State’s powers under the Education Act 1996, as well as the Information Commissioner’s Office where concerns relate to the handling of data. The law already enables a parent to apply to the Secretary of State to intervene and make a determination if a local authority has refused a parent’s request to revoke a school attendance order.

A number of your Lordships, led by the noble Lord, Lord Soley, and my noble friend Lord Lucas, made the critical point that this needs to feel like a supportive system. I would go further and say that it is really important that we have a system that feels fair to parents and which builds trust and confidence. Therefore, we propose to create, in close collaboration with local authorities and home-educating parents, new statutory guidance for local authorities which will cover all the powers and duties of local authorities regarding the register and support. This will include advice on how to promote positive engagement with the home education community.

We will also continue to consider what more we can do to support parents and strengthen independent oversight. I thank the noble Baroness opposite for the suggestion she put forward and that other noble Lords have mentioned. I of course welcome the offer from the noble Lord, Lord Soley, to support us in that work and for his very generous offer on behalf the noble Lord, Lord Laming, in his absence, which I am sure he will be delighted about.

I again thank my noble friend Lord Lucas for his helpful suggestion in Amendment 137C. The preliminary notice stage already provides parents with the opportunity to evidence that their child is in receipt of a suitable education. They would still need to demonstrate this if they were to appeal to the First-tier Tribunal, so we are not clear that my noble friend’s amendment makes any practical difference to parents.

Turning to Amendment 130 in the name of the noble Baroness, Lady Garden, the Bill includes a range of examples of the types of support that local authorities can provide. As I mentioned, we plan to publish statutory guidance to support local authorities to discharge this duty. This will include more detailed examples, which could include support for exams. As I said, we will work with stakeholders, including parents who have chosen to educate their children at home, on this prior to publication.

However, there is a principle that underpins this: by electing to home educate, parents accept full responsibility for their child’s education and the costs associated with this, including exam fees. There will not be a legal requirement for local authorities to provide specific funding to home-educated pupils for examination fees as part of the support duty, but it would be one way they could choose to discharge the duty.

[Lord Addington (LD)]

Before the noble Baroness finishes that point, if somebody has special educational needs—we had an example from my noble friend Lord Storey—and they are still interacting with the education system to an extent, would they still get that support despite the fact they are home educated? I appreciate that it is a difficult interchange—I probably did not declare my interests properly before—but could we get an example? The primary problem with this is the fact that home educators are a very broad church.

[Baroness Barran (Con)]

So, as the noble Lord knows extremely well, is the spectrum of educational needs. I know that one is not allowed to have props in the Chamber, but I commend to the noble Lord the flowchart at the back of the policy notes on this part of the Bill. It sets out the process, including where a child has special educational needs. I think it is easier to follow than me trying to explain at the Dispatch Box.

Turning to Amendment 130A from my noble friend Lord Lucas, individuals already have the right to ask local authorities for copies of their personal information and inquire how they are using it by submitting a subject access request. A parent can demand that inaccurate information is corrected, and if the local authority fails to do so, the parent can complain to the Information Commissioner, who has significant enforcement powers.

Turning to Amendment 134A, I repeat that it is not possible for fines or penalty notices to be given to parents for failing to provide information for the registers and the Bill does not provide for that, but if parents fail to demonstrate that their child is receiving a suitable education, it is right that the local authority begin the process of issuing a school attendance order. If the parent is unable to evidence that the education they are providing is suitable, the process will lead to an order being issued. If the parent then breaches the order, they may be fined by the magistrates’ court. On collecting and publishing data on this, the Bill already provides flexibility to require this through regulations.

I now turn to Amendments 136ZA, 136B, 136C, 137B, 138ZA, 138A, 139 and 140, from my noble friend Lord Lucas, the noble Baroness, Lady Garden, and the noble Lord, Lord Shipley. My department’s guidance for local authorities highlights that the authority should initially attempt to resolve doubts through informal inquiries.

The noble Lord raised the point of expediency, and I am grateful, because I absolutely understand why, and why it sounds anything other than what one might expect. The current test for issuing a school attendance order is that the child is not receiving a suitable education, in the opinion of the local authority and, as the noble Lord said, that it would be expedient for the child to attend school. That is the test contained in the existing Section 437 of the Education Act 1996, and new Section 436J mirrors that test, so this will keep the test for issuing a school attendance order the same in both England and Wales. I again point the noble Lord to my favourite flowchart, from which he will see that, prior to issuing a school attendance order, there needs to be a preliminary notice, which is covered at new Section 436I(3)(c), where it says that one of the conditions for issuing a preliminary notice is:

“the child is not receiving suitable education, either by regular attendance at school or otherwise”.

I absolutely understand his question, but I hope I have reassured him and the House that, while it may appear to be one thing, it is covered absolutely properly in the legislation dating from the 1996 Act. The current law, supported by guidance, requires that local authorities take all relevant factors into account when considering whether it is expedient for a child to attend school, and that includes where the child has expressed an opinion about attending school—the voice of the child was something that a number of your Lordships raised.

Local authorities should have the in-house expertise to make these decisions, but if they do not, they can and should consult a suitably qualified external expert. We will make this clear in our guidance. It is crucial that the time a child is in receipt of unsuitable education is minimised, and therefore it is right that local authorities move to initiate formal school attendance order procedures as soon as possible where home education appears unsuitable. The noble Lord, Lord Storey, rightly mentioned the work of many charities; we may be thinking about the same ones. If he goes back to the schools White Paper, he will see that our approach on attendance is: support first, support second, support third, with enforcement very much down the line. We are working with a number of charities which are leaders in this field.

Amendment 143B from my noble friend Lord Lucas is unnecessary, because if local authorities were to refuse to revoke a school attendance order on an unreasonable basis, that refusal would in itself be unlawful.

My noble friend’s Amendment 143F would mean that if a parent was found guilty of breaching a school attendance order and continued to breach it, the local authority could take no further action to enforce it: it would have to restart the process and make a new order. That would obviously be a waste of public resources, but, more significantly, would add to an already lengthy timeframe in which a child may be in receipt of an unsuitable education. I should be very happy to follow up with my noble friend on the specific example he gave, where that home education may have changed, to check that we have that very reasonable point covered.

Finally, I speak to Amendment 143I, also tabled by my noble friend and the noble Baroness, Lady Whitaker. A breach of a school attendance order is currently punishable by a fine of up to £1,000, compared to a maximum fine of £2,500, or up to three months’ imprisonment, for the offence of knowingly failing to cause a child to attend the school at which they are registered. This means that there is currently an incentive for some parents to remove their child from school under the guise of home education rather than incur the greater penalty associated with non-attendance. By aligning the penalties, we can increase the deterrent and help ensure that as many children as possible are in receipt of a suitable education.

The noble Baronesses, Lady Whitaker and Lady Brinton, asked about the change in custodial sentence. Wider criminal justice legislation, which has not yet come into force, will raise sentences in magistrates’ courts from three months to 51 weeks. New Section 436Q is simply in line with that wider change, and until it comes into force, the maximum sentence under new Section 436Q will remain at three months, as set out in subsection (9). The noble Baroness, Lady Brinton, also raised the issue of publication of individual data, and I am happy to repeat that we are taking that away to consider it.

I hope that I have answered the bulk of the points raised in this group and I ask my noble friend to withdraw his Amendment 112A—

[Lord Wei (Con)]

I think that my amendment might have been missed out. I would be grateful if my noble friend the Minister had any thoughts on Amendment 171X and the idea of an ombudsman with the expertise to adjudicate and mediate to prevent any expensive court cases that might otherwise occur.

[Baroness Barran (Con)]

I apologise. I referred to my noble friend’s amendment right at the beginning of my remarks and reflected that we will consider what options there are to make sure that there is a system that feels fair to parents and in which parents have trust and confidence. With that, I ask my noble friend Lord Lucas to withdraw his Amendment 112A and hope that other noble Lords will not move theirs.

[Lord Lucas (Con)]

My Lords, I am very grateful to my noble friend for those replies. I shall read them in Hansard and return to her if I have any points of detail to make. I very much agree with my noble friend Lord Wei that we need an appeal system that feels fair and builds trust. There are different ways of doing it. It clearly should not be by internal local authority appeals, the Local Government Ombudsmen have not proved helpful in elective home education cases to date and the Secretary of State system is a bit on the impenetrable side, so I very much hope this is an area where we will make improvements.

My noble friend’s remarks put a lot of weight on the forthcoming guidance. If at any stage a draft of that can be shared, I would be most grateful to have a look at it. It would shortcut a lot of debate if we had a clear feeling of where the Government are heading.

18:00

[Baroness Barran (Con)]

I hope my noble friend picked up the point, but if not, I will repeat it: we plan to develop the guidance in co-operation with home-educating parents and local authorities. I am sure that, when a draft is ready, we would be happy to share it with other Members of the House.

[Lord Lucas (Con)]

My Lords, I was not trying to hurry my noble friend; I was just saying this is clearly quite important.

Picking up on other points made in the debate, I am absolutely delighted that the noble Lord, Lord Soley, and I are so much in agreement on this. We approach it from different angles, but we both agree on the need for the system to be supportive and for children who are not being properly educated to be rescued with speed. The question is: how do we do this fairly and leave home education as a supported system?

My general experience of this—and I hope that talking to Gloucestershire will mean that my noble friend shares it—is that where there is a supportive system, money is much better directed. Money goes to supporting the education of children, rather than being used to try to control their parents, and there is a much better flow of information about what is happening. Providing facilities for parents, including maths and English catch-up and even swimming lessons, means we get to see these children and get the information without having to be punitive about it. There is a flow of information because we are working with the home education community. The numbers that remain outside the easy orbit gets small, and they can be focused on. Building something that is supportive and works with home education is a double benefit—using the money well and allowing us to catch up with children who are being failed swiftly. I very much hope that that is the direction the Bill will take.

I beg leave to withdraw the amendment.

Amendment 112A withdrawn.

Amendments 113 and 114 not moved.

[The Deputy Chairman of Committees (Lord Geddes) (Con)]

Before calling Amendment 114A, I inform the Committee that the noble Baroness, Lady Brinton, will be taking part remotely and that if Amendment 114A is agreed, I cannot call Amendments 115 or 116 due to pre-emption.

Amendment 114A

Moved by

[Lord Lucas]

114A: Clause 48, page 42, line 26, leave out from “1(a),” to “days” in line 27 and insert “the period of 30 school”
Member's explanatory statement
This amendment, along with other amendments to Clause 48, page 42, and Clause 49, page 47, in the name of Lord Lucas, are intended to simplify the immediate duty to one of registration, leaving it to the local authority to then inform the parents of the other requirements, and to increase the timescale to accommodate for additional responsibilities on parents. “School days” are used to exempt parents from having to disrupt holidays to provide the required information.

[Lord Lucas (Con)]

My Lords, Amendment 114A is the first appearance of an amendment that deals with longer time limits. Such amendments seem to be scattered through a number of groups. I will try not to repeat myself, or indeed focus on them at this moment because there are many more of them in later groups.

The principle I am working to is that the time limits being set should work for a reasonably together, reasonably collaborative parent. We have to allow for the fact that children go on holidays and that out of term time, it may be hard to get hold of them. We should look at longer limits than are set out in the Bill, and at the concept of “school days”—the parental equivalent of working days—as the form these limits should take.

I am interested to know where my noble friend finds herself on this and all the other amendments on time limits. I am aiming to help the Government produce a system that works fairly. If we have a system that trips parents easily into school attendance orders, then we need to allow parents time to react first. I particularly think that we need to give parents time to get it wrong first. I know how often I managed to get things wrong. Reading through my amendments in putting together these groups, I can see that my drafting has not exactly been perfect. We ought to have human time limits. They should not be overlong, but they ought to allow for the real lives of the home educators involved. After all, local authorities are not known as the fastest people in the world when it comes to responding to inquiries. There ought to be some equality of allowance.

In this group, Amendment 122C questions whether, in this section of the Bill, the Government intend to catch hired home tutors—people picking up an individual from a tutor supplier and saying, “We’d love you to come in a couple of days a week to support us in home education”. Would they be caught by Amendment 122C? Where is the boundary between organised provision of education and a parent asking an individual to come in and help?

Amendment 126A asks that we look at the benefit of registering tutors, in much the same style as we have done with parking operators. The Government are expanding the number of tutors and their use in the schooling system, but we do not have a system that in any way is protective of the public. There is no useful form of registration for tutors. To my mind, this is a subject to which the Government should be bending a thought. The best I can hope for from my noble friend is, “Yes, we’re thinking of looking at it”, but I do think that they should be.

I have read through Amendment 128A before. This does need to be said somewhere, and I suspect it is in the guidance my noble friend has been talking about. The basis on which local authorities are supposed to be interacting with home education need to be made clear to them.

All the other amendments in this group—apart from Amendment 140B, which is just an example of an appeal—consider ways in which the support the Government mention in the Bill but do not, as far as I can see in the impact assessment, provide any money for, might be provided. They look at things that good local authorities already do. Amendment 173 suggests that this support should be in place before we pitch into activating the registration system.

The point was made when considering the last group that home educators are actually saving the state a lot of money. My noble friend said we should not start giving money to home educators, and that this was a decision they had made. Yes, but we should give money to local authorities so that their support for home educators is properly funded. In previous iterations, I have suggested that half the money the Government save should go to local authorities—with no undue ring-fencing—the intention being that it is a fund to provide for their support of home educators, to be used in a way that works best locally. That is not in the impact assessment at the moment, and I very much hope that the Government will have a figure in front of us before the Bill leaves this House. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I remind the Committee that the noble Baroness, Lady Brinton, is taking part remotely. I call the noble Baroness.

[Baroness Brinton (LD) [V]]

My Lords, the comprehensive introduction by the noble Lord, Lord Lucas, to the wide-ranging amendments in this group has once again set the tone for many of us with concerns about this part of the Bill as originally drafted. I think that everyone, including the Minister, has said that they want to see the relationship between home-educating parents and their local authority start from a position of trust and support, while ensuring that there is a system that protects children too.

I am pleased that at the end of his speech the noble Lord mentioned that there should be some money for local authorities to help support home educators. That was one of the points I mentioned about the northern California home educators I saw at Sierra College, just outside Sacramento. That was exactly what had happened. The school board here understood that it could help parents without changing parents’ way of educating their children. As a result of that trust, the entire tone changed between the home educators and the school board.

I have signed the right reverend Prelate the Bishop of St Albans’s Amendments 115, 117 and 119, which extend from 15 to 30 days the period in which parents must register their child and provide the information. Other amendments in this group do the same. The amendment from the noble Lord, Lord Lucas, talks about “school days”, not just “days”, and that is very helpful and supportive as well. Amendment 129 from the noble Lord, Lord Hunt, will ensure that children or teachers get the support for any special educational need or disability that they would have already got.

In previous groups I have talked about the problem that many parents have had of not getting the support they need for their child, even though they may be entitled to it. If they have had some support, it has not been enough to provide the specific support that the child needs, whether for special educational needs, disability or a mental or physical health problem. I have given examples of that before. As a result, some parents have been forced to withdraw their children from school, often because they felt that their child was literally not safe—perhaps a medical procedure requires a school nurse to do it but there is no longer a school nurse available. Sometimes parents have been threatened with off-rolling by the school. Sometimes the promised special educational needs support has not happened.

In the last group the noble Lord, Lord Soley, gave a further good example of children being withdrawn from school because of their challenging behaviour. It is important to recognise that children with this challenging behaviour should also get support. If they end up out of school with their parents trying to cope, that is a very big burden for parents. The behaviour of parents, when accused by the local authority of not doing things, often causes friction. Local authorities should always come from the approach that the noble Lord, Lord Storey, outlined: that of teachers always wanting to help, understand and get to the root of the problem and provide the support that will change the child’s behaviour.

I believe the amendment from the noble Lord, Lord Hunt, is vital. A child with SEN, a disability or a health problem who is out of school should have the support that they would have got in school. They need it wherever they receive their education. His amendment needs to succeed.

[The Lord Bishop of Blackburn]

My Lords, I will speak briefly to the amendments in this group, of which Amendments 115, 117 and 119 were originally tabled by my right reverend friend the Bishop of St Albans, who is unable to be present in the Chamber today.

As he is absent, I will focus on the amendments tabled by the noble Baroness, Lady Garden, and the noble Lord, Lord Lucas, which also extend the relevant period in which a parent must comply with registration and provide information, as requested from a local authority, from 15 days to 28 days, 30 days or 30 school days respectively. I know my right reverend friend the Bishop of St Albans would have been happy to support these amendments, as do I, given their shared principle that giving parents sufficient breathing space to comply is helpful.

Fifteen days is simply too short a timeframe to register a child or provide any information necessary in accordance with the register. To begin with, parents may not even be aware of the obligation to register their child in the first place, making it imperative that there is a reasonable timeframe to inform the local authority that the child is eligible for registration. Home schooling is not subject to the traditional school calendar, meaning that a two-week holiday, far from unusual, would take up the entirety of the relevant period to comply. Fifteen days appears somewhat punitive and may unintentionally mean that parents fall foul of it, particularly where circumstances make it impossible to comply. I am not aware of any specific rationale behind this compliance timeframe of 15 days, so I would welcome the Government’s reason for it.

As it stands, I do not believe that the Government have reasonably considered the complexities of some families’ lives and the multitude of reasons for delays that could occur. Rather than being unnecessarily tight, as currently stipulated, the relevant period ought to reflect a more reasonable timeframe. I hope the Government will provide home-schooling parents with a relevant compliance period that reflects real-life circumstances, whether that is 28 days, 30 days or 30 school days.

Finally, I add my support to Amendment 128A in the name of the noble Lord, Lord Lucas, which helpfully defines the correct relationship between local authorities and home-schooling parents, and the constructive and non-judgmental attitude that local authorities should have when dealing with elective home educators.

18:15

[Baroness Garden of Frognal (LD)]

It is a great pleasure to follow the right reverend Prelate the Bishop of Blackburn, and I absolutely agree with everything he has just said. I rise to speak to Amendments 116, 118, 125 and 126 in my name. I tabled these amendments on behalf of home educators. There are quite a lot of them so I crave your Lordships’ indulgence.

As we have heard from the right reverend Prelate and the noble Baroness, Lady Brinton, the first two refer to wishing to lengthen the relevant period in a number of different situations. My amendments lengthen from 15 to 28 days the period in which parents are required to comply with duties imposed by local authorities, but I would be happy to go along with the 30 days in the other amendments. Parents would argue that they may need time to consult, possibly obtain legal advice or, at the very least, consider all the implications, and 28 or 30 days is a much more reasonable timeframe for that than 15.

Amendment 125 finds itself in this group. It seeks to ensure that the less structured but enormously beneficial forest schools and farm schools are not overlooked. Both teach a great deal to pupils and get them out in the open, with fresh air and acquiring a new understanding of natural surroundings, animals, crops and all the other invaluable work of farms. My daughter teaches four year-olds, who really love their forest school lessons. It is some of the most pleasurable and productive learning they achieve. It is particularly beneficial for town and disadvantaged children, who may never have walked through woods or seen a cow.

Amendment 126 ensures that someone who has made strenuous efforts to provide information should not be penalised if the information is deemed inadequate. People can do only their best, and we would not wish to see parents fined for matters that were not their fault.

[Lord Addington (LD)]

My Lords, I will speak briefly to Amendment 129. I put my name to this because I saw it and said, “Yes, this is right”. What level of support are you going to give to a certain group with special educational needs, particularly if they do not have the plan? Anyone who has looked at special educational needs knows that there is a great struggle to get the plan. We have a bureaucratic legal system in which whether you get it often depends on the lawyer you have employed. I know that this was not the original intention of the Bill, because I did it. Going through this process, there was supposed to be something called a graduated approach involved. Can we have some indication of what the Government feel the process will be in future? I assume that the new review of special educational needs will come up with something that is an improvement.

The law of unintended consequences, or the cock-up theory of history, means that we have a mess in special educational needs at the moment. I do not think anybody seriously disputes that, but I hope that in future we will not be so dependent on the plan, the statement mark 2, the gold star tattooed on the back of your neck or whichever way you identify special educational needs; you will not be as determined on the higher classification. Many people are getting the plan now because they are not getting any support, their education is deteriorating and they are suddenly finding themselves in the higher-needs group.

I did the Bill and the noble Baroness did not, so maybe this fault falls more on me than on her, but that is the state of affairs at the moment. Some indication that the Government will intervene before they get to this crucial point would be very reassuring, at least with regard to their thinking and lines of progression on this. It is not happening at the moment, and some assurance that it will happen in future, or at least that the Government plan for it to happen in future, would make life a little easier.

[Lord Storey (LD)]

I was slightly diverted there. I am going to be very brief. I am diverted because—is Amendment 123 in this group? Yes, it is.

I will perhaps ask the Minister a question. Any teacher who is teaching children in a school has to have disclosure and barring clearance. Regarding the practice—and I do not complain about this—where some home educators use teachers either to teach their own children, not all the time but occasionally, and maybe a group of children, presumably those teachers have to also have safeguarding qualifications. What I am trying to say in this amendment is that there are cases—and this actually was raised with me by some home educators—where, for example, and I think this is very good practice, the children will meet other adults who are not qualified teachers but have particular expertise in a particular area to instruct or teach their children. What this amendment seeks is to ensure that those adults also have safeguarding clearance. I do not know what the current situation is on that.

I also want to respond to the point in Amendment 129, which my noble friend Lord Addington signed. This is the issue which I still struggle with. For those pupils who are permanently excluded from school—and in the vast majority of cases they are young people with special educational needs—if there is not a pupil referral unit on the site of the school, they get moved to an alternative provider. As we have discussed, I think in Written and Oral Questions, many local authorities, often because there is a shortage of places or because they have not got the money, look for the cheapest provider. I had a meeting yesterday with Ofsted, which told me—I was absolutely horrified by this—that one unregistered provider charges £50 a day plus taxi fares, including the £50, almost just to look after that child. That child could have special educational needs, so this cannot be allowed to go on. We need to take a firm hand. I am sort of having a second go at this, because I was chairing the session today at the All-Party Parliamentary Group for Education. The Minister on special educational needs spoke about this and I was very reassured, but hoped I could be reassured from our Minister on this issue as well. Other than that, that is all I want to say.

[Baroness Chapman of Darlington (Lab)]

I do not want to repeat much of the good stuff that has been said, but I shall just mention our Amendment 128, which amends Clause 48 on sharing data between local authorities when a child moves. We are just pointing out that we must have regard to child protection and the safety of their parents when this is done. We are concerned that, where there are circumstances in which a parent is moving as a consequence of domestic violence or is a victim of or witness to crime, that they are protected. To be absolutely clear, we want to make sure that information can be shared, and that it can be shared safely and quickly.

On Amendment 129, about the support provided by local authorities to children with special needs or disabilities, we are very interested in supporting this. We take the points raised on time limits and school days and would be sympathetic to any reasonable amendments along these lines at Report.

[Baroness Barran (Con)]

My Lords, I turn to the second group of amendments, starting with Amendment 128A, in the name of my noble friend Lord Lucas. I would remind the House that the law is already clear that parents have a right to educate their children at home. The Government continue to support this where it is done in the best interests of the child. Our guidance on home education for local authorities is clear that elective home education, of itself, is not an inherent safeguarding risk, and local authorities should not treat it as such. We are also aware that there are a number of reasons why parents may choose elective home education. Sometimes, as your Lordships have already raised this afternoon, this may not be their choice, for example due to off-rolling, which is why we believe it would be valuable to require the recording of reasons for home education, so we can identify some of the wider system issues which my noble friend rightly points to in his amendment.

On Amendment 128, from the noble Baroness, Lady Chapman, the information held in registers will of course be protected under UK GDPR, like any other data, and the Bill only enables data to be shared with prescribed partners where the local authority feels that it is appropriate and proportionate to promote the education, safety and welfare of children. I am very familiar with the issues that she raises in relation to domestic abuse and just how devious some people can be in trying to track down a former partner, which is why that proportionality of risk is so important.

I would like to thank again my noble friend Lord Lucas, the right reverend Prelate the Bishop of St. Albans and the noble Baroness, Lady Garden of Frognal, for Amendments 114A through to 119. We believe that the timeframe of 15 days in which parents or out-of-school providers must provide information for a local authority register strikes the right balance between minimising the amount of time a child would spend in potentially unsuitable education and allowing sufficient time to send the required information. In addition, defining the period in terms of “school days” would, we believe, be an inappropriate and impractical measurement for home-educated children who, as we heard in the debate, by definition do not necessarily follow a school calendar. But I think the issue with the timings and those proposed by my noble friend in later amendments on the school attendance order process is that, if you take them all together, it would more than double the length of time that a child would be without suitable education. It would take the total number of days to 120, instead of 51 on the Government’s proposed process. I think that is the way I would ask your Lordships to think about it. Each individual step may look tight to some of your Lordships, and to some home educators and proprietors of education institutions, but when we look at it in the round, the fact that a child could be in unsuitable education for 120 days, versus 51, is the point I would ask your Lordships to reflect on.

The noble Baroness, Lady Garden of Frognal, proposed Amendment 126. The monetary penalty for failing to provide information, contained in the new Section 436E, only applies to persons who provide out-of-school education to children without their parents being present. Parents who fail in their duty to provide information, or who provide false information, for the register would not be subject to any financial penalty. Rather, as I mentioned earlier, the local authority will be required then to initiate the process of finding out whether a child is receiving suitable education. That is obviously the central point of their inquiry. If they find that a child is not receiving this, then it could lead to a school attendance order. And if that attendance order is not complied with, it could eventually result in a fine being imposed, but only if the parent convinces neither the local authority nor the magistrates’ court that their child is being suitably educated.

18:30

Turning to my noble friend Lord Lucas’s Amendment 140B, as raised earlier in this debate there are already a number of options for parents who want to query or challenge a school attendance order. We are not convinced that introducing a further route such as this to appeal a local authority’s decision would be the best use of effort and resources. As I have already mentioned to the Committee, we recognise the importance of having a system that feels fair and is trusted. We will do what more we can to support parents and strengthen independent oversight.

I turn to Amendments 129 to 129F, from my noble friend Lord Lucas and the noble Lord, Lord Hunt. The Bill already includes a broad range of examples of the types of support local authorities could provide. I think behind the noble Lord’s amendments, if I have understood correctly, is not just what is provided but how it is provided. As I have mentioned, we plan to publish statutory guidance for local authorities which will include further and more detailed examples, and—again I repeat myself—we will work with all key stakeholders to do this.

Consideration for the needs of the child is already included in the support duty, and there are a range of areas where parents and children may need support and resources. Therefore, rather than setting that out explicitly in the Bill, we think those decisions are best made locally. Local authorities already have a statutory duty to secure the provision set out in an education, health and care plan for children with special educational needs.

The noble Lord, Lord Addington, asked about the situation for children without an education, health and care plan and about the Government’s aspiration. As I am sure he is expecting me to say, the Government’s aspiration through the consultation we are carrying out on the SEND and AP Green Paper is to address some of the issues he highlighted. Our current published guidance to local authorities on elective home education says that

“if the home education is suitable, the local authority has no duty to arrange any special educational provision for the child; the plan should simply set out the type of special educational provision that the authority thinks the child requires but it should state in a suitable place that parents have made their own arrangements under s.7 of the Education Act 1996”.

However, this should be caveated by the fact that our clauses in the Bill would give the local authority a duty to provide some support if the child is registered on the children not in school register, which could include special educational needs support. As I said earlier, this would be at the request of parents and not imposed.

[Lord Addington (LD)]

That was fairly helpful, but we are now overly dependent on the plans; I do not think there is any doubt about that. The Government are effectively saying that an identified need which is either not severe or has not yet gone through the process would still give some form of obligation, recognition and an entitlement to support in certain circumstances.

[Baroness Barran (Con)]

Under the changes proposed in the Bill—if I understood the noble Lord correctly.

I turn to Amendment 173 from my noble friend Lord Lucas. We would like the system of registration to be implemented as soon as possible to—I hope—reassure those parents who are doing a great job supporting their children at home. It will offer support to those parents who are struggling to provide education to their children at home, help safeguard those children who may be more vulnerable and not in school, and allow local authorities to better target their resources to those families who want or need support. We will take sufficient time prior to the registration system coming into force to ensure the registers work for everyone and that local authorities are clear on their support duty. Therefore, we do not feel it is helpful to set a strict implementation plan for the new support duty in the Bill.

The noble Lord, Lord Storey, raised Amendment 123. I hope he will be reassured that it is already a criminal offence knowingly to recruit someone to work in a regulated activity with children who has been barred from working with children.

The noble Baroness, Lady Garden, and my noble friend Lord Lucas brought forward Amendments 122C, 125 and 126A. A threshold set out in regulations will ensure that the duty to provide information targets only those providers that are used for a substantial proportion of a child’s education. I was not altogether surprised that the noble Lord, Lord Storey, raised the issue of unregulated alternative provision. I know we are going to be debating it in more detail in a subsequent group, so I hope I can save my remarks on that for later.

There is also a power in new Section 436E(6) to make regulations creating specific exemptions to the requirement for providers to provide information, which could be used to exclude certain settings from scope. We will continue to engage with stakeholders on this. However, where providers are eligible, the duty will be vital in aiding identification of eligible children and ensuring the registration system is effective in safeguarding them from harm and promoting their education.

My noble friend—I mean my noble friend Lord Lucas; I have so many noble friends—referred to the importance of adequate funding. We are still in the process of determining what the minimum expectation on local authorities should be in terms of their new support duty. To ensure that it is as effective as possible, it is right that we undertake the necessary consideration and assessment of need, including how this can be achieved and the costs involved. We will engage closely with stakeholders on this prior to the statutory guidance being issued and we have also committed to undertake a new burdens assessment to identify the level of funding that may be required to support local authorities so that they can discharge their duty effectively and well. Therefore, I ask my noble friend Lord Lucas—

[Baroness Morris of Yardley (Lab)]

I have a very quick question before the Minister sits down. She talked about making sure that people have the relevant safeguarding qualifications and going through the process. Whose responsibility is that? Does the parent of a home-educated child have a legal duty to do the checking or does that power and responsibility lie with someone else? If it was a school, it would be the school’s responsibility. I am not sure whose responsibility this is.

[Baroness Barran (Con)]

I do not know the answer to the noble Baroness’s specific question, but I will get an answer and respond to her.

In closing, I ask my noble friend Lord Lucas to withdraw Amendment 114A and other noble Lords not to move the amendments in their names.

[Lord Lucas (Con)]

My Lords, yet again, I am very grateful to my noble friend for her replies. I assume that the Government have all the powers they need to create this guidance that we are all placing so much reliance on. I hope my noble friend will tell me if that is not the case, but I assume that it is. I look forward to reading her replies in more detail in Hansard and picking up any issues I have with them in correspondence. For now, I beg leave to withdraw my amendment.

Amendment 114A withdrawn.

Amendments 115 to 119 not moved.

Amendment 120

Moved by

[Baroness Garden of Frognal]

120: Clause 48, page 42, line 32, leave out “15” and insert “28”
Member's explanatory statement
This amendment, and others to Clause 48 in Baroness Garden’s name, are intended to lengthen the “relevant period”.

[Baroness Garden of Frognal (LD)]

My Lords, I shall move Amendment 120 and speak to Amendments 122, 123 and 134 in my name. I can be brief because we have effectively discussed all this already. The first three amendments all refer to wishing to lengthen the relevant period from 15 to 28 days in a number of different situations but, of course, I would be very happy to accept the amendment that suggests 30 days. I really will not go into detail on each of them, although Amendment 134 does ring the changes, as here, for some reason, it is 14 days. One wonders why, when we have had 15 all along, suddenly here only 14 days are given to challenge a monetary penalty. Could the Minister explain how these periods are arrived at? It would be helpful if we knew how the Government decided that some should be 14 and some 15. Anyway, my amendment does not waver. We still consider 28 days a reasonable time for such representations. I will not repeat previous arguments but will just say that that is a much more reasonable period in which to challenge and work out an appropriate response. I beg to move.

[Lord Lucas (Con)]

My Lords, I have a couple of amendments in this group. My noble friend covered the government arguments on this subject clearly under the previous group. I expect to come back at her in one form or another when I have the time to analyse the detailed timescale she is looking at—in other words, the whole distance between a worried local authority saying that a child is not being looked after properly and being able to enforce, and how that all works together. But I shall not move my amendments at this time.

[Baroness Wilcox of Newport (Lab)]

My Lords, this is a technical question and compassion for parents who are often struggling to deal with vulnerable children must be factored in. These amendments are intended to simplify the immediate duty to one of registration, leaving it to the local authority then to inform the parents of the other requirements and increase the timescale to accommodate additional responsibilities on parents. School days are used to exempt parents from having to disrupt holidays to provide the required information. These all seem sensible alternatives to what is currently proposed by the Government. I conclude by asking the Minister what analysis lies behind the Government’s choice of a 15-day period in these proposals.

[Baroness Barran (Con)]

My Lords, again, I thank my noble friend Lord Lucas, the noble Baroness, Lady Garden of Frognal, and the right reverend Prelate the Bishop of St Albans, represented tonight by the right reverend Prelate the Bishop of Blackburn, for Amendments 120, 120A, 121, 122 and 122A. As debated with your Lordships earlier this evening, the relevant period has been set at 15 days to minimise the amount of time that children are potentially not in receipt of a suitable education and to allow local authorities to use their powers effectively. Therefore, extending this timeframe could reduce local authority visibility where, for example, a child might be missing education, and prevent them quickly redirecting their resource, where a child ceases to be eligible for registration, to those children and families still eligible. As I said in the earlier group, our approach to this has been to look at the total length of the process and consider the balance between the requirements placed on parents and providers with the rights of the child to access a suitable education as quickly as possible. As I said, the amendments would increase that from 51 days to 120 days, and I am sure all the former teachers in the Committee will be able to convert that into a term or more in a nanosecond. That is the reason we would resist these amendments.

Turning to Amendment 124 from the noble Baroness, Lady Garden, the response time for providers has been set to 15 days for similar reasons—so that local authorities can be sure that their registers are accurate and they are discharging their duties effectively to ensure that children are in receipt of a suitable education. By extending the timeframe, local authorities would not be able to identify where certain children are receiving their education or, at worst, if they are attending unsuitable settings such as illegal schools.

Finally, turning to Amendment 134: we consider extending the 14-day period unnecessary, as a person served with a warning notice is already able to extend their period to respond to 28 days if they provide notice that they will be making representations. Therefore, I would ask the noble Baroness, Lady Garden, to withdraw her Amendment 120 and other noble Lords not to move theirs.

18:45

[Baroness Garden of Frognal (LD)]

I thank the noble Baroness for her response. I am not sure she entirely agreed with us; still, I beg leave to withdraw.

Amendment 120 withdrawn.

Amendments 120A to 134A not moved.

Debate on whether Clause 48 should stand part of the Bill.

[Baroness Kennedy of Cradley (Non-Afl)]

My Lords, I oppose Clause 48 standing part of the Bill to enable us again to have a full discussion of the issues in this part. Part 3 has drawn significant criticism from home educators and I want to put their significant anxieties and concerns about the introduction of the children not in school register to the Committee. They are very fearful of its consequences and its unintended consequences for their children and their children’s education. Sadly, many feel demonised by the tone of this part. As we have heard from the Government, their intention behind this part of the legislation is to tackle the increasing number of pupils who are disengaging from schools and increasing non-attendance. I hope, therefore, that this debate will allow the Minister to explain to the Committee, and put on record comprehensively, the reasons this part is being introduced. More importantly, I hope it will give the opportunity for the fears and anxieties of home educators to be alleviated, to allow the Government’s significant reassurances to be given to home educators and for this Committee to hear those comments before Report.

I think all of us in this Committee would recognise that home-educating families begin and continue with home education as they passionately believe the home is the best setting for their children to learn and thrive. There are many reasons why school is not a suitable environment for some children. Often, it is because the specific needs of the child cannot adequately be accommodated by a school, which may already be managing a lot of competing needs of the children in its care. By way of illustration, may I spend a few minutes giving the situations and views of two home-educating families?

First, I have first-hand experience of how a five year-old boy has thrived from being home educated. This little boy, settled now with his new adopted family, can be quite disruptive. In a school environment it became clear that, if bored, he would cause trouble and risked being too easily dismissed as the naughty kid in the class. Through home education this five year-old little boy now has a reading age of eight: he loves Shakespeare and reading about classical Greek mythology. In maths he is doing algebra because he loves it, and does it over and over. He is confident and, although only five, can have a proper conversation with anyone, including me. All that was needed was a different educational environment in which he could flourish. His parents and the home-educating community of which they are a part are terrified by this part of the Bill. His parents can understand the intent behind it, but they feel that

“this legislation is effectively punishing parents for doing what they feel is right by their child”.

My second example illustrates how a child’s specific health needs often mean home education is the only choice. For one mum the health of her daughter was paramount; her daughter developed absence seizures in year 1, a debilitating condition which affected her brain. Despite requests, her school refused to facilitate necessary long-term changes to benefit her health. They asked for her to attend school late once a week, so she could wake naturally, as advised by her consultant. Even though this was trialled prior to lockdown, when the school reopened the family was threatened with a fine. It appeared to the family that the school was far more concerned about the impact on its attendance figures than the needs of their daughter. Now, through home education, in which the family was able to deliver the needs advised by the medical professionals, the young girl has recovered from the seizures and her parents are determined to keep it that way. Her mum said:

“I am terrified the Schools Bill will result in her being forced back into school and the seizures recurring.”


What assurances can the Minister give both these families, and the many others that have contacted us, that the register will not be used by local authorities to force children back into school? For example, condition C in new Section 436B could be read as saying that consent needs to be secured to educate your child at home. Parents—and especially parents of children with special educational needs—need assurances that their child will not be compelled to attend a school that is unable or unsuitable to provide for that child. What assurances can the Minister give that this will not be the case? Will the Government consider tabling an amendment to this condition to ensure that this is not the case?

The renewed focus on reducing the number of children not in school must not lead to an overaggressive approach from schools and local authorities towards home educators. Can the Minister state or comment on whether it is envisaged that guidance about the use of the register regarding home educators will be issued? We already hear reports from home educators of overreach by schools and local authorities, threatening fines and prosecutions, and making parents feel like they are troublesome or elitist and making the wrong choice for their children. There is a lack of empathy and understanding that, for home educators, it is the successful education of their children that is utmost in their mind. How will the Government ensure that the regulation around the children not in school register and any associated guidance will not be used as a stick to erode parents’ democratic right to decide how best to educate their children?

In this part of the Bill, there is a huge increase in information for families to provide—so much so that it is intrusive. Home-educating families are already known to their local authority. Why is more personal and sensitive data needed? New Section 436C(2) states that the register may contain

“any other information the local authority consider appropriate.”

What information did the noble Baroness have in mind when this subsection was drafted? What reassurances can she give that the information requested by local authorities will not grow and be extended in different ways by different local authorities, creating a postcode lottery of registration information?

It is so important to be clear about what data will be published, who it will be shared with and how it will be kept secure, as the failure to provide this data, as people have said in the past, can result in fines and imprisonment.

New Section 436D creates a duty on parents to provide information requested by the local authority, but there must be exemptions for victims of domestic violence. One woman who works with home educators wrote to me to explain that local authorities will now require the names of both parents. The fear of data breaches from authorities is causing terror among some women who have fled abusive former partners. One mother she met through her work has already had to relocate three times, including once to a refuge with her daughter, because both social services and the local authority elective home education staff divulged her address to her former partner who, by court order, was not allowed to hold her or her daughter’s address. This situation happened under the current protections we have in place. How will the Minister protect victims of domestic abuse when the regulation around the register seems to eradicate this protection completely?

Many home educators are part of local groups and networks. They offer each other support and share information. That is why new Section 436E is a concern for those home educators who are part of active home education groups. It could allow for financial penalties to be levied against child tutors, childminders or home education groups where parents share care of their children. I am sure that was not the intent of this section, and therefore ask the Minister to look again to see whether the breadth of this section can be re-examined so that there are no other unintended consequences of this nature.

Finally, one of the stated aims of this part of the legislation is to give more support to home educators. However, it is not clear what support will be afforded to home educators, as it is left to the local authorities to decide what they think is fit. Furthermore, there is no clear and detailed framework to ensure that local authorities assess children’s education fairly and consistently. What support do the Government envisage being given to home education by this part of the Bill and by local authorities?

In conclusion, I thank all the organisations and home-educating parents who have contacted me; there have been many, including Education Otherwise, Square Peg and the elective home education art project, to name a few. I hope I have managed to get across their main concerns today. All the themes of their comments were the same: that home educators felt demonised not encouraged, unfairly victimised, and powerless to counter the additional local authority powers and demands. Clearly, this reaction from home educators was not the Government’s intention, so I hope that this debate, and the other debates we have on clauses in this part, will allow the Minister to allay the genuine fears of home educators across the country and consider how this part can be changed before Report.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I remind the Committee that the noble Baroness, Lady Brinton, is taking part remotely. I call the noble Baroness.

[Baroness Brinton (LD) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Kennedy of Cradley, whose introduction to this clause stand part debate was helpful, especially with the examples she provided. I also agree with her about ensuring that no data for victims of domestic abuse should be published or passed on. When doing my work on stalking law reform, I met a woman who was such a victim. She and her son had had to repeatedly move after her violent and stalker husband had found her. After the third move a big red flag was put on her file, but the social worker at the local authority decided to give her ex-husband her address because she felt that he should have access to his son. Unfortunately, he attacked both her and him. We cannot always guarantee the behaviour of people, but in this case we know that victims of domestic abuse are targets for their ex-partners.

The Minister has heard from noble Lords across the Committee over the last two days of debate concerns about this part of the Bill, particularly Clause 48, with questions about the language. My noble friend Lord Shipley raised concerns about the word “expediency”, but plenty of other concerns were raised too. For example, how exactly will data be held and used?

There are concerns too about the tone of the legislation, which is designed on the basis of home educators being a problem, as we have heard from many people speaking today. I know the Minister does not agree with that and is urging us to be careful with our language, but we are hearing from parents that the tone of the Bill is what worries them.

Once again, many parents have said that, unfortunately, their relationship with the local authority has been the root of their problems, which has meant that the child had to be withdrawn from school. Far too many local authorities have taken the view of having a hostile and difficult relationship. It has been helpful to listen to the debate and hear the supportive way in which many amendments, often led by the noble Lord, Lord Lucas, have tried to change that tone. It would be good to see that in revisions from the Minister at a later stage.

Concerns about the principles that underpin this clause also worry many. So I completely agree, first, with the noble Baroness, Lady Kennedy of Cradley, that we should ask the Minister to respond to the clause standing part, but also with my noble friend Lord Shipley’s earlier comment that, with Report stage starting in under two weeks, it is completely wrong to proceed with this part of the Bill while there are so many unsolved problems: those of principle, language and attitude. Frankly, this means that there must be a delay to starting Report while the Government think again—at least until the autumn.

19:00

[Lord Storey (LD)]

I was not going to speak on this group, but I am now. My noble friend Lady Brinton is right: the tone is really important; we underlined that in previous debates.

I am very nervous that we said right at the beginning—I think there was agreement across the Committee—that this was about protecting the vulnerable and ensuring the rights of children. I guess that all noble Lords here have been bombarded with emails from home educators, and we must be careful that we do not believe everything that they tell us. As the noble Baroness, Lady Kennedy, was talking, I received an email giving a completely different view about how some home educators are suing one other over what they said; some are being told to be quiet. The noble Baroness mentioned a couple of organisations, but, for some people, there is more at stake here. We must remember—I repeat this—that the vast majority of home educators are doing a fantastic job; they want support and to work together. If we ramp up the fear that they will be threatened, they will feel threatened. We should try to ensure that they completely understand what we are trying to do to support them and their child.

[Baroness Chapman of Darlington (Lab)]

My Lords, we are respectful of the right of parents to educate their children at home, but we cannot agree that this clause should not be part of the Bill. There are clearly important measures that we support quite strongly and want to see enacted. We support the principle of a register. However, there have been some helpful suggestions for improvement—particularly on new Sections 436C and 436D(2), inserted by Clause 48—and the Minister has committed to go away and consider those further.

On the issues around data we raised in relation to Amendment 128 in an earlier group, having thought about what the Minister said and the issues raised by the noble Baroness, Lady Kennedy, and other noble Lords, I think it is worth some further consideration, because clearly there are risks and we would not want to rush into anything that would cause more problems. We hope that, with some improvements, this clause will be a helpful and necessary change that will safeguard children. It is not about forcing children back into school; it is about balance between freedom to decide and safeguarding.

On the comments that we have just heard from my noble friend, this Bill is not ready for Report. We do not think that the Government will have time to reconsider some of the issues that have been raised. It would seem appropriate, given everything that has been said, for us at least to wait for the regulatory review to be completed before we take this Bill to Report.

[Baroness Penn (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy, for giving us the opportunity again to ensure that the tone we take when talking about this issue—as the noble Lord, Lord Storey, and many other noble Lords in this debate have said—is one of support, of explaining what the Government are seeking to achieve with these measures and of trying to allay some the concerns we have heard, while being clear that we do not lose sight of the importance of protecting a child’s right to education. In doing so, I can reassure the noble Baroness, Lady Kennedy, that the introduction of registers is not, in any way, intended to undermine or interfere with the parents’ right to educate their child how they choose. This clause includes no measures on monitoring or assessing the education that parents may be providing. Local authorities’ existing powers are already sufficient in this regard, and we have already provided guidance to support local authorities to determine whether education is suitable.

As many noble Lords have said, we know that many parents who home educate do it very well—often to a very high standard and in challenging circumstances. However, that is not the case for all. That is a key point I would like to emphasise: this Bill is about establishing registers so that we know who and where home-educated children are; it is not about forcing them back to school.

A school attendance order can be issued only if the local authority is not satisfied that the education provided for the child is suitable. The example raised by the noble Baroness, Lady Kennedy, of the little boy thriving at home with his new adopted family is clearly a case where the home education being provided is suitable and, if demonstrated as she described, the local authority could only agree with that. Similarly, on her example of a girl in year 1 who developed seizures, if the education being provided at home is suitable—and that is demonstrated to the local authority—the local authority could not reasonably issue a school attendance order. In addition, the current law, supported by guidance, already requires local authorities to take all relevant factors into account when taking a view on whether it is expedient for a child to attend school, including any medical grounds.

I turn now to the noble Baroness’s question about parents needing local authorities’ consent to home educate. I can reassure the noble Baroness that condition C in new Section 436B simply does not do that; it establishes that a home-educated child is eligible to be included on the local authority’s register. That is a statement of fact; there is nothing about consent involved in new Section 436B.

As we heard in an earlier debate, we must recognise that there are growing numbers of children not in school, particularly after the pandemic, and there are concerns that some of these children will not be receiving suitable education—and, in some cases, not at all. We need to be able to assure ourselves that they are receiving a suitable education, and that is what these provisions are all about. While parents of eligible children will be required to provide information to local authorities for inclusion on their registers, local authorities will be able to require only that information which is prescribed in legislation. Any additional information prescribed will be intended to support the promotion of the education, welfare or safety of children.

I have also heard the concerns about data sharing—which was raised not just in this group—and was sorry to hear about the specific situation the noble Baroness described; that absolutely should not have occurred. As my noble friend the Minister has explained, there will be protections in place: the clause allows local authorities to share information only with certain prescribed persons, to be set out in regulations, when they consider it appropriate for the purposes of ensuring the safety, welfare or education of a child—

[Baroness Chapman of Darlington (Lab)]

There is quite deep concern about this issue, and I wonder whether the regulations could be made available to us before Report.

[Baroness Penn (Con)]

I can absolutely take that point away and see whether it is possible. If that is not the mechanism by which we can provide further detail and assurance, I will look at what else we can do to explore, and reassure on, that issue further.

As my noble friend the Minister said, under UK GDPR, parents have the right to object to any processing where UK legislation requires such processing, which would include the sharing of information to prescribed persons. The organisation responsible for that processing would then need to review the request and decide whether the processing is in the best interest of the child or family, and either uphold the request in the specific circumstances or proceed with the processing. The parent also has a formal route of complaint with the Information Commissioner’s Office, which has a range of powers in this area. It is essential, however, for local authorities to be able to share information, if needed, to support multi-agency safeguarding and education efforts, with the appropriate safeguards in place.

On the question of statutory guidance, which the noble Baroness asked about also, this will help ensure the consistency of interpretation and implementation of duties across local authorities. As we said, we will ensure that it is created in close collaboration with local authorities and home educators, and includes advice on how local authorities can best promote positive engagement, as we have heard the concerns from parents where that has not been the case. We have also heard examples of best practice, and that is what we will seek to draw on in drafting the guidance.

There was a concern about financial penalties for tutors or childminders and home education groups. The duty on providers to share information on request will be important in helping to identify those children who are not—but should be—on registers, and those regulations will be used to set a threshold at which an education provider comes into the scope of the duty in Section 436E, ensuring the duty is only placed on providers that provide a substantial proportion of an eligible child’s education. There is also the power to make regulations to create specific exemptions to this duty, and we have indicated our intention to use that power to exclude informal groups of home-educating parents from the scope of this measure.

I thank the noble Baroness once again for the opportunity to reiterate some of those points, and I think we have heard the areas that the Government will take away and look at to ensure that we continue to have a message for support for home educators, but not lose sight of the importance of what we are trying to achieve with these registers.

[Lord Lucas (Con)]

My Lords, that was a good answer, but I feel my noble friend has not addressed the reasonable fears of some home educators about the way this Bill is drafted at present. For instance, in new Section 436C(1)(c),

“such details of the means by which the child is being educated as may be prescribed”

is a completely open phrase. This is an area which is used by some local authorities to pressure parents. They pursue parents for timetables, the details of subjects of studied and other things which do not necessarily form part of home education. Home education is not subject bound. Schools have to do it that way; if the Times has its way, schools may not have to do it that way, but they do so at the moment. Home education may follow timetables, or it may be something much looser. The age at which a child begins to read can be quite late in home education, or it can be very early. These things vary enormously from the practice which is necessary in school. That new Section 436C(1)(c) is in this Bill, and opens and then flows through to the school attendance order provisions, is a source of considerable worry, and I think reasonably so.

Clause 48 agreed.

Amendment 135 not moved.

Clause 49: School attendance orders

Amendment 136

Moved by

[Baroness Garden of Frognal]

136: Clause 49, page 47, line 18, after the first “notice” insert “of at least 28 days”
Member's explanatory statement
This amendment specifies that the period within which a person must satisfy a local authority that a child is receiving education is a minimum of 28 days.

[Baroness Garden of Frognal (LD)]

My Lords, I beg to move Amendment 136 and speak to Amendments 137, 138, 139, 141, 142 and 143 in my name. It might have been less painful if most of these had been grouped with my other amendments seeking to increase or specify relevant periods for parents to respond to notices.

Amendment 136 relates to “the period specified” within which a person must satisfy the local authority; home educators would wish this to say “of at least 28 days”, for reasons we have already set out. Amendment 137 replaces a period of not less than 10 days with our favoured 28 days. Amendment 138 once again specifies 28 days in place of the vaguer “specified in the notice”.

Amendment 139 moves into another area of concern: that of authorities taking on roles which may run counter to the wishes of parents or the best interests of the child. It would be preferable if the authorities’ wishes were supplemented by those of a “suitably qualified independent adviser”, and we have touched on this already in an earlier group, and surely the Minister can see that would allay fears of overriding officialdom.

Amendments 141, 142 and 143 all ask to replace 10 days with 28 days. Parents do not wish to dodge their responsibilities, but they do wish to have sufficient time to assess, research and respond in a way which, as ever, serves the best interest of the child.

I hope the Minister will appreciate how strongly home educators feel that this Bill is giving undue powers to authorities, powers which they feel more than able to fulfil themselves. Once again, we have to be aware of cautions over parents who do not have the best interests of their children in keeping them off school, but so very many excellent home educators can surely be allowed to serve their children without heavy-handed monitoring. I beg to move.

19:15

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

My Lords, I now invite the noble Baroness, Lady Brinton, to take part remotely.

[Baroness Brinton (LD) [V]]

My Lords, I have two amendments in this group: Amendment 137D and 143IB. Amendment 137D replicates Amendment 171V that I had in an earlier group, for children who are home educated or out of school long-term for other reasons.

Amendment 137D sets out that a local authority must take account of the advice of a doctor, social worker or youth offending officer when considering school attendance orders. This comes back to the issue that I have talked about often in these groups, where some parents have their children out of school not because they want to but because their child is not safe in school, whether that is for medical, psychological or other reasons. For the reasons I said earlier, and I will not go through them again, many parents say that the officer at their local authority refused to acknowledge the reasons why the pupil was out of school. This amendment ensures that the advice of the relevant independent expert must be taken into account when considering orders and school nomination notice for a school attendance order.

[Lord Lucas (Con)]

My Lords, I have some amendments in this group: Amendments 136A and 137A are timing amendments, and we have covered that subject already.

Amendments 140A, 143A, 143C, 143D, 143E and 143H are of a technical nature. I think the quickest thing would be for me to listen to the Minister’s reply, because I think I have made my intentions clear in the amendments.

Amendment 143IA goes back to an earlier discussion on the relationship between local authorities and home educators. It suggests that having Ofsted report on the quality of the home education provision in a local authority, and on the quality of the work that it does on school attendance, would be a useful way of redressing the balance between home educators and a local authority, and that it would direct the attention of the local authority to the need to perform well in this area, and would have similar benefits in the case of attendance.

[Baroness Whitaker (Lab)]

My Lords, I have in Amendment 143G a very simple provision that, on acquittal for breaching a school attendance order, that particular school attendance order dies—no ifs, no buts. Surely, natural justice mandates that the court’s decision is respected for that specific attendance order.

[Baroness Wilcox of Newport (Lab)]

My Lords, the general thrust of these amendments is to make school attendance order conditions easier for parents by, for example, increasing the information handover period, compelling consideration of the child’s relevant medical conditions—looking at the child holistically.

An important factor that has not had enough mention is that of the impact of poverty on attendance. Poverty affects school attendance for a variety of reasons, and in the third decade of the 21st century some children are unable to attend school because their parents cannot afford fuel or travel costs, or they are more likely to be absent with sickness as their families cannot afford heating or hot water, or to provide a healthy diet.

For some children, not having the right uniform and missing breakfast are barriers to them setting foot in school. Children are having to take days off school due to unwashed, ill fitting or shabby clothes. This often leads to bullying, which is a huge concern when children are unable to dress like their peers and have poorer-quality clothing, shoes and school bags. I have seen and experienced these issues first-hand as a barrier to attendance, and teachers themselves often provide for children in these desperate circumstances. It cannot be right that in a society as wealthy as Britain, we still have children living like this. Poor attendance adds to the inequalities that they face.

We know that schools are often the first point of contact when dealing with such inequalities, so it is important that we have the correct resources and tools to deal with them. Our Amendment 144 ensures that schools’ attendance policies consider how to support staff who have been given new responsibilities for implementing the policies. This whole Bill will give hard-pressed teachers even more responsibilities, so we require recognition of that and to get them the support that they deserve in those areas.

Naturally, none of these measures will increase the resources for education, financial or physical. In the debate on Monday, I noted to your Lordships the paper-thin state of local government finances, and schools are finely balanced within that equation. Such an increase in monitoring and evaluation of attendance policies will be yet another job for an already hard-pressed member of the senior management team in a school. I have served in that capacity for decades; it is an extremely stressful occupation. This is one reason it is increasingly difficult to recruit heads and deputies in the secondary sector.

Our Amendment 146 will mandate the Secretary of State to produce a breakdown of those fined to allow assessment of disparities and compel them to consider the measures to address this. If we examine the data, attendance fines and fixed penalty notices are vastly skewed towards women, who are more often caregivers, and less affluent people, who are more often dealing with truant children. The Secretary of State should be forced to recognise this injustice and tackle it. I pose the question: where is the levelling-up agenda here?

I must stress that we do not disagree with this clause in principle. I set out earlier that we must ensure that the children at greatest risk attend school regularly, but I must press the Minister on what her department’s hard evidence is—whether behavioural science or otherwise—that fines will increase the information given or get more absent children into school. Children with poor attendance need support and staff need the resources to help them deal with it.

[Baroness Barran (Con)]

I thank my noble friend Lord Lucas, the noble Baronesses, Lady Wilcox, Lady Chapman, Lady Brinton, Lady Bennett and Lady Garden, and the noble Lord, Lord Knight, for their amendments in this group. I shall speak to Amendments 136 to 143, from the noble Baroness, Lady Garden, and Amendments 136A and 137A, tabled by my noble friend Lord Lucas. We have worked closely with a group of local authorities in developing the timeframes set out in the Bill. As we discussed in previous groups on school attendance order timeframes, we want to ensure that the school attendance order process is as efficient as possible, so that any child not receiving a suitable education is placed in adequate provision swiftly and can benefit from the full-time education to which they are entitled. 

Amendment 143D, tabled by my noble friend Lord Lucas, would bypass the existing procedures under the Children and Families Act 2014 and associated secondary legislation for amending an education, health and care plan. Clause 49, as drafted, does not prevent a parent seeking to have the name of a school changed or removed from their child’s education, health and care plan, in line with the existing process and timescales set out in the Act. Following that process, a parent may apply for the school attendance order to be revoked as normal.

I thank my noble friend Lord Lucas and the noble Lord, Lord Knight of Weymouth, for their Amendments 140A, 143A and 143C. If local authorities were required to revoke orders simply on the grounds that a child has moved to a new area, the continuity of the child’s education and the local authority’s duties to safeguard children—and to satisfy itself that every child is receiving a suitable education—would be impeded.

When a child leaves the local authority area, including, as in the example given in Amendment 140A, to move to Wales, we expect both local authorities to work together to co-ordinate and facilitate the movement of children and parents subject to school attendance orders. We expect local authorities to facilitate this swiftly and efficiently, given the importance of ensuring that all children have access to suitable full-time education, in line with their common-law obligation to act within a reasonable timeframe. We will set out further details on this issue in future guidance.

On Amendment 143E, tabled by my noble friend Lord Lucas, I assure him that school attendance orders already apply only to children of compulsory school age. This is included under new Section 436J(4), introduced through this Bill.

On Amendments 143G and 143H, tabled by the noble Baroness, Lady Whitaker, and my noble friend Lord Lucas, Clause 50 as drafted already allows the court to use its discretion to rule that a school attendance order ceases to be in force in the event of an acquittal for breaching the order. This discretion is valuable, as there may be circumstances where there are clear reasons for the order to remain in force.

If the court finds that a parent has had their child registered at the school named in the order, they would find the parent not guilty of the offence, but there may be individual factors making it important for the child to continue attending that school and, therefore, for the order to remain in force; for example, if there had been a previous pattern of school attendance orders being required in respect of that child.

Amendment 143IA, tabled by my noble friend Lord Lucas and the noble Lord, Lord Knight, would create duties on Ofsted to oversee local authorities’ exercise of their functions in relation to electively home-educated children and school attendance in a way that encourages a positive relationship between the two. As your Lordships have heard me and my noble friend say several times this evening, that is absolutely our goal. Ofsted already covers both elective home education and children missing education as part of its children’s social care remit; local authorities are held to account in relation to those functions.

On school attendance, through recently published attendance guidance, which we intend to put on a statutory footing through the Bill, local authorities are expected to provide attendance support to pupils who face barriers to attendance prior to considering any legal intervention. As I said earlier, in response to the question asked by the noble Baroness, Lady Wilcox, it is “support, support and support” before there is any kind of enforcement. We understand that the reasons children may not be attending school are often very complex and support is almost always the right answer.

On Amendment 137D, tabled by the noble Baroness, Lady Brinton, local authorities are already required by law to take account of relevant factors when making decisions, including on preliminary notices. They should have the necessary in-house expertise to make these decisions but, as we have heard from the noble Baroness, that is not always the case. If local authorities do not have the expertise, they are able to consult an external expert. Parents are able to ask local authorities to take account of expert advice when making decisions, and the local authority must consider this external evidence and any other relevant considerations in line with public law.

19:30

Similarly, on Amendment 143IB, again tabled by the noble Baroness, Lady Brinton, our recently published school attendance guidance makes it clear that local authorities should work together with other services and partners such as health services, youth justice services and children’s social care to unblock the barriers to attendance. This will include considering the individual needs of children with specific barriers to attendance and working together to put in place appropriate support so that they can attend school regularly. We expect local authorities to build strong relationships and meet regularly with these services, which should share their expertise and build effective data-sharing opportunities to make sure that the response is consistent and joined up across the local authority for the benefit of the child.

Moving to Amendment 143J, tabled by the noble Baroness, Lady Whitaker, and the noble Lord, Lord Knight, the Equality Act 2010 protects pupils with certain characteristics, including race, disability and religion, from unlawful discrimination in their educational setting. Schools already have clear duties under the Act, and we expect schools to develop all policies, including attendance policies, in line with those duties.

On Amendment 144, tabled by the noble Baronesses, Lady Chapman and Lady Wilcox, and the noble Lord, Lord Knight of Weymouth, through the aforementioned school attendance guidance, academy trust boards and governing bodies of maintained schools are expected to ensure that school staff receive appropriate training to fulfil the school’s duties on attendance. This includes training on the importance of school attendance, and the strategies and procedures for tracking, following up and improving attendance.

Finally, I turn to Amendment 146, tabled by the noble Baronesses, Lady Chapman, Lady Wilcox and Lady Bennett. The Government share their desire to ensure that pupils receive support to attend their education setting, and it is the intention that these reforms move away from the punitive action by default that, as the noble Baronesses know well, is happening in some areas of the country. Clause 54 is central to that ambition. The Government are clear that fixed penalty notices should be used only where all supportive approaches have not been successful, or were not engaged with or appropriate, such as an unauthorised holiday in term time. We will continue to work closely with local authorities to ensure that support is always considered before punitive action, including through the department’s regions group. We will also consider what more we can do as a department to ensure that local authorities are held to account for delivering on this important matter.

Based on those arguments, I ask the noble Baroness, Lady Garden, to withdraw her amendment and other noble Lords not to move the amendments in their names.

[Baroness Garden of Frognal (LD)]

My Lords, I thank the Minister very much for her full reply. There are still some issues that we may wish to come back to on Report, but she has dealt comprehensively with a lot of the matters that were raised. On that basis, I beg leave to withdraw the amendment.

Amendment 136 withdrawn.

Amendments 136ZA to 143D not moved.

[Baroness Penn (Con)]

My Lords, this might be a convenient moment for the Committee to adjourn.

19:35

Sitting suspended. Committee to begin again not before 8.05 pm.

20:06

Debate on whether Clause 49 should stand part of the Bill.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I oppose Clause 49, and the other clauses and the schedule set out in the group, standing part of the Bill. I do so partly because the Bill is such a mess. The noble Lord, Lord Grocott, pointed out that a lot more discussion is needed on it, but we also need to facilitate a debate on the rights of home-schooling families. That is not clear to the families themselves, nor to me because of the Bill.

We have already had extensive debates on this on previous groups, so I will not go on, but I will briefly reflect the worry that many home-schooling families have expressed to me and to other noble Lords. The Minister said on Monday that the Government are not criminalising anything and that it is dangerous to talk in these terms, but that is the sort of language that we have heard from home educators; that is how they feel. If that is not right, they need to be told, and told clearly. They are genuinely fearful that their way of life will be trammelled by this legislation and that the state will use the legal system against them.

Can the Minister please take this opportunity to make a clear statement to home-schooling families about what the legislation means for them, what safeguards will be in place to protect their way of life and what work the Government will do to ensure that positive support, rather than coercion, is provided by local authorities? There are some points from Monday’s debate that might be worth reiterating, but I am aware that it is getting on and it would be wonderful to get through the Bill today.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely on this group. I therefore invite her to speak now.

[Baroness Brinton (LD) [V]]

My Lords, the noble Baroness, Lady Jones, has already expressed the worries from home educators and why she is opposing the clause standing part. My queries are more probing as to whether these clauses and the schedule should stand part.

On Clause 49 on school attendance orders, many Peers have already raised a surfeit of problems during the debate. Unlike the current system on the government website that I described, there is no sense of a ladder of penalties, of support between each stage before progressing on, or how local authorities will work as constructively as they can with parents and pupils before the process for school attendance orders kicks in. I know that the Minister said before the break that the guidance will talk about support. The problem is that, if that guidance is not in the Bill or referred to in the Bill, it might easily be missed and ignored.

On Clause 50 and failure to comply with the school attendance order, I want to come back to something the Minister said at the end of the debate on the first group. I am sorry, and I appreciate that the Minister is probably getting frustrated by this, but I have frustrations myself. She said in response to my question that prison terms were increasing from three months to 51 weeks because magistrates’ powers were now being increased from three months to 51 weeks. In fact, the current maximum is six months. It is going up to 51 weeks, but it is not currently three months. I was slightly bemused by that.

Usually, a maximum prison sentence is defined by the level of the offence, not the sentencing power of the court that is going to hear it. That is exactly why I quoted examples of crimes that would receive sentences of up to six months—threatening someone with a weapon or a second offence of possession of a gun. The example that I gave of a 12-month sentence—I appreciate that 51 weeks is not quite 12 months—was of very serious harassment and stalking, over an extended period, which involved a large team of police investigating over many months, not to mention the distress it caused to the 30 people who were the targets.

I am hearing from the Minister’s response that the drafters decided that, because magistrates will have the opportunity to sentence a convicted criminal to up to 51 weeks, that should be in the Bill. There are three worries and three groups of people involved in this. First and most importantly, what is the impact on children of a parent, especially if it is a single parent, going to prison? For three months, a temporary foster placement or possibly a short-term placement with kinship carers might be possible, but social services view a 51-week sentence very differently, even if the parent comes out after half the sentence has been served.

The second is the impact on prisons. We already know that our prisons are overcrowded. I have no idea of the numbers the Minister thinks are likely to be involved, but it might be useful to have an indication. The third is the impact on the parent who is themselves imprisoned. I ask the Minister if the Ministry of Justice has said that it is content with lines 18 to 20 in Clause 50 and this new, much-increased maximum sentence of 51 weeks.

[Lord Storey (LD)]

The noble Baroness, Lady Jones, sort of said “all home educators” and I briefly want to say that that is not the case. Some home educators feel threatened by a number of people in their organisation, particularly a number of ex-home educators who are running and providing services. I am happy to show the noble Baroness the evidence for that privately.

[Baroness Jones of Moulsecoomb (GP)]

I did not say “all”. I am well aware that there are others, but I did not say “all”.

[Lord Storey (LD)]

The noble Baroness said “home educators”. The noble Baroness, Lady Brinton, corrected by saying “some home educators”, but the noble Baroness, Lady Jones, said “home educators”. When she said that, it indicated to me that she was talking about all home educators.

[Baroness Jones of Moulsecoomb (GP)]

I am really sorry; the noble Lord is going to have to check this in Hansard. I have my copy and that is not what I said.

[Lord Storey (LD)]

Let us agree to differ until we see Hansard.

[Baroness Jones of Moulsecoomb (GP)]

No—the noble Lord is wrong.

[Lord Storey (LD)]

If I am wrong, I am wrong and will apologise, but I make the point quite strongly that a large number of home educators are getting on with home educating. Within the home education movement, there are home educators who are behaving in an unacceptable way. In the first debate we had—I do not think the noble Baroness, Lady Jones, was with us—we all agreed, or the feeling of the debate was, that we need to use language that brings home educators together and works with local authorities. That is really important.

I turn to the issue of school attendance, which, again, we discussed previously. Part of me asks that, if school attendance is important—of course it is; it is hugely important, and we want to make sure every child and young person is in school—what are the tools in our kit to ensure that it happens? It must be through encouragement, reward and so on. If that is the case, should we say that there should be no sanctions, and let us do it through all other means? If we want school attendance to thrive in our society, we should not be suggesting that parents be fined, taken to court or, as my noble friend Lady Brinton mentioned, criminalised. Should we have a serious discussion about doing away with all those sanctions? If so, we need to know the consequences. I prefer a carrot-and-stick approach, but the carrot should be the overriding way we encourage parents to ensure that their children are in school.

20:15

[Baroness Chapman of Darlington (Lab)]

I do not want to detain the Committee either, but my ears also pricked up at the question of six months or 12 months. I was part of the Bill Committee when we agreed that magistrates should have the power to hand down sentences of up to a year. This is a slightly odd one; I do not think I have ever seen an offence drafted quite like this, especially given the journey that people would go on to be subject to these orders. I absolutely accept that, for a situation to get this point, the circumstances would be extremely unusual. If you need to send a parent to prison for a year for failing to get their child to school, there is a lot more going on. There will probably have been multiple interventions from social services and elsewhere before we ever got to that point. Whether the child would still be in the care of a parent who needed to go to prison for failing to get them to school is an interesting question.

It is usual, I should think, with an offence such as this, for a Minister to explain why a penalty of a year will have any more of a deterrent effect then a penalty of six months, eight months or three months. I know they would be available to a magistrate, but it is unusual to see it done in this way. I do not know whether that is because it is a Bill of the Department for Education, rather than the MoJ, which is perhaps more used to dealing with such clauses. It would be helpful if the Minister said a bit more about this.

I am content that these clauses should stand part of the Bill, but I am sensitive to the concerns of home educators, particularly those who are doing a good job. We do not want them to feel undermined or threatened in any way by this. We can stand here and say “Well, they shouldn’t; there’s no need for them to”, but the fact is that that is how they already feel, so we have a job of work to do to meet them where they are on this. At this point, it would be helpful if the Minister said what she can on that, but we do not want the clauses removed from the Bill.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

I shall speak to Clauses 49, 50 and 51 and Schedule 4, which the noble Baroness, Lady Jones, opposes. She asked me to summarise the purpose of this part of the Bill. The overarching purpose is that we should feel confident that every child in this country is getting a suitable education, that we should offer support to those home-educating parents who feel they need it, and that we should address the very small number of children who are not in school or being suitably educated at home, and who are exposed to a range of risks which we have discussed tonight.

The other point behind the noble Baroness’s very fair question was to ask us about the spirit in which we approach this and how we are doing it. As the noble Baroness, Lady Chapman, said, it does not matter whether we tell parents to think a certain thing: if we feel it, we feel it. I hope that the Committee senses that we acknowledge that. I feel it is our responsibility to try to address those anxieties and put ourselves in the shoes of parents who are worried about the proposals. It is material, in our commitment to develop guidance for local authorities, that we will do that in partnership with local authorities and home-educating parents, so both voices are there. I hope very much that we will reach a good place with them, and that that recap responds to the noble Baroness’s question.

I am afraid that I will have to write to the noble Baronesses, Lady Brinton and Lady Chapman, regarding their questions. My understanding is that we are bringing the offence in this Bill in line with other similar offences, but both noble Baronesses have asked extremely good and detailed questions and I will respond to them in writing.

Clause 49 amends the school attendance order process in England to make an order a more effective measure for parents who are not providing their child with a suitable education, or who fail to demonstrate that they are doing so to local authorities. If a local authority knows that a suitable education is not being provided, or cannot deduce whether it is, it is important that this be acted on quickly to make sure that children get a suitable education as quickly as possible. For this reason, additional timeframes have been introduced and in some existing cases, as the Committee has debated tonight, shortened. We are trying to bring more consistency by aligning the process for and effect of orders for academy schools more closely with that for maintained schools.

Clause 50 similarly seeks to increase the efficiency of the process where a parent fails to comply with a school attendance order in England, and to support the child’s right to education and minimise the amount of time that a child misses education. Today, if a child is registered at a school but their parent keeps them at home without a valid reason, the parent commits an offence and can potentially receive a heavier penalty than if they simply withdraw the child from school completely without providing any education at all and ignore a school attendance order. Equalising the maximum penalties for those two situations removes this perverse incentive to take children out of school without providing suitable home education. These changes are only being made to the school attendance order process in England. Therefore, Clause 51 and Schedule 4 make consequential amendments to help separate the two processes in England and Wales and to ensure they are reflected in relevant legislation such as the Children Act 1989 and the Education Act 1996.

With that explanation, I ask the noble Baroness not to oppose Clause 49, the other clauses and Schedule 4.

Clause 49 agreed.

Clause 50: Failure to comply with school attendance order

Amendments 143E to 143I not moved.

Clause 50 agreed.

Amendment 143IA not moved.

Clause 51: School attendance orders: consequential amendments

Clause 51 agreed.

Schedule 4: School attendance orders: consequential amendments

Schedule 4 agreed.

Clause 52: School attendance: general duties on local authorities

Amendment 143IB not moved.

Clause 52 agreed.

Clause 53: School attendance policies

Amendment 143J

Moved by

[Baroness Whitaker]

143J: Clause 53, page 57, line 12, at end insert—
“(c) that those policies take into account shared protected characteristics of registered pupils, as set out in the Equality Act 2010.”Member’s explanatory statement
This amendment would require schools to take greater account of gender, ethnicity, religion etc. when designing attendance policies.

[Baroness Whitaker (Lab)]

My Lords, although this amendment was scheduled to be in the last group, amendments have been moved around a bit. I am sorry I missed it.

The rationale of Amendment 143J is that attendance policies should respect protected characteristics—that is, those that are cardinal to a child’s identity and enjoin small, short absences such as for religious or other festivals or necessary travel by parents. I beg to move.

[Baroness Barran (Con)]

My Lords, the Government understand the importance of schools developing their attendance policies in a way that considers the characteristics of individual pupils, including those with protected characteristics that may mean they face greater barriers to attendance. The Equality Act 2010 protects pupils with certain characteristics, such as race, disability and religion, from discrimination in their educational setting. Schools have clear duties under the Act, and we expect them to develop all policies, including attendance policies, in line with those duties.

The department recently published attendance guidance, Working Together To Improve School Attendance, which we intend to put on a statutory footing through the Bill. In addition, through this guidance and their own Equality Act obligations, academy trust boards and governing bodies of maintained schools are expected to ensure that their schools have an attendance policy that considers their obligations under the Act.

As I believe the amendment to be unnecessary, I ask the noble Baroness to withdraw it.

[Baroness Whitaker (Lab)]

I am grateful for the Minister’s reassurance and beg leave to withdraw the amendment.

Amendment 143J withdrawn.

Amendment 144 not moved.

Amendment 145

Moved by

[Baroness Wilcox of Newport]

145: Clause 53, page 57, line 23, at end insert—
“(f) the extent to which mental illness has contributed to truancy, and how mental health will be considered in developing the policy.”

[Baroness Wilcox of Newport (Lab)]

Good mental health is fundamental to thriving in life. I knew it from the other side of the tracks. My dear, late mother suffered greatly with mental health throughout her life, so I grew up and grew old trying to deal with it. It made me much more aware of what it means. I always used to say that if my mother came into school or wherever wearing a plaster cast on her arm, they would know that she had a broken arm. However, they did not know that she had a broken mind. At times it was extremely challenging. It made me a better person, more understanding and very aware of mental health issues.

More than one in 10 children aged 10 to 15 say they have no one to talk to or would not talk to anyone in school if they felt worried or sad. This is the same proportion of children who have a diagnosable mental health problem. Research shows that 50% of mental health problems are established by the age of 14 and 75% are by the age of 24. Young people in the UK today are dealing with high levels of stress due to a variety of issues.

20:30

The DfE’s state of the nation annual report that draws upon children and young people’s mental health, well-being and experiences over the previous academic year, found that evidence indicated lower well-being in December 2020 and February 2021 when schools were closed to most pupils compared to the previous months in the academic year. Reductions in average levels of well-being occurred most clearly in February 2021 when schools were closed to the majority of children before recovering towards the end of the academic year when restrictions were eased.

Of Ofsted’s eight strategic priorities, one is called “keeping children safe”. Ofsted notes that it has

“seen an increase in the complexity of children’s needs”.

No area has seen such a growth in complexity than mental health issues. In this context we have introduced three amendments. Amendment 145 asks that schools’ new attendance policies must consider

“the extent to which mental illness has contributed to truancy, and how mental health will be considered in developing the policy”.

In Amendment 170, during a school inspection Ofsted must assess

“the mental health of the student body”,

which easily sits alongside its current strategic priority of “keeping children safe”. Thus schools with an inadequate mental health rating cannot be rated good or outstanding. In Amendment 171M we ask that

“The Secretary of State must report each year on … how the physical health of children in schools in England affects and is affected by their schooling”.

Some shocking and disturbing research from UCL has found that nearly five times as many children died from suicide compared to coronavirus during the first year of lockdowns. There were more than 1 million referrals made to specialist mental health services in 2021, up 15% compared to before the pandemic.

I draw noble Lords’ attention to the fact that mental health is not mentioned in this Bill. What we have debated over the past four and a half days is that this Bill tinkers with school structures while one in six children aged between six and 16 has a probable mental health issue. This is a priority area for Labour. We would guarantee mental health treatment for all who need it within a month and hire at least 8,500 new mental health professionals. But a creaking NHS cannot do this alone and the focus should be on prevention.

I have noted previously when talking about attendance matters that schools play a vital role in these areas, with the maintenance of general welfare and resilience throughout a child’s time in education rather than acting on it only in times of crisis, when it is often too late. One of my favourite mantras—anyone who has worked with me or for me in schools would say this—is “head it off at the pass”. It is what I always tried to do: stop it becoming a bigger problem. My other was always “less is more”, so I am going to finish now by saying that it is an absolute, acute crisis and one that needs recognising as essential to learning and welfare. We need to understand the drivers of the problem and we must give targeted support to tackle it.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

My Lords, the noble Baroness, Lady Brinton, will be taking part remotely in this group. I invite the noble Baroness to take part.

[Baroness Brinton (LD) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Wilcox, especially today when the Anti-Bullying Alliance is asking all of us to encourage children to talk to someone if they are isolated, depressed or bullied. We know that they are not alone, but of course they feel fearfully alone.

Amendment 145 returns us to the issue of mental health in children in schools, which I raised in earlier parts of the Bill. It looks specifically at school attendance policy and ensuring that any mental health illness that has contributed to truancy is taken into account. That is helpful and fits neatly with my other amendments about following the advice of a doctor.

Amendment 170 is more general, and asks for Ofsted to assess the mental health of a student body—the overall health of all children in a school. We know that children and young people, their parents, their families, Ministers and parliamentarians are all too aware of the effect of the pandemic on their mental health. It is really important that we learn from that.

That is why I am particularly pleased to see Amendment 171M placing a duty on the Secretary of State to report each year on the physical health and mental health of children at school in England. This is particularly helpful, especially with all the concerns expressed recently. I particularly like the physical side: we all talk all the time about how important it is that children take exercise and that they eat properly. On all sides of the House, we discuss it often. But I do not think we actually assess what is happening in schools. For the Secretary of State to have to prepare an annual report on this will be extraordinarily helpful. I particularly like, in the amendment, proposed new paragraph (b)(iii) and (iv), which specifies

“the length of time spent by pupils waiting for mental health support provided through their school”

and

“the adequacy of provision of mental health support in and through schools.”

That is because at the moment there is no focus. We keep saying that schools are the front line of mental health problems; indeed, we know that money has been put in by the NHS to provide counselling services, but we need to be able to see how long children are waiting and whether that money is sufficient. I have to say, wearing my health portfolio hat, that we know that mental health is still really underfunded, so we need to understand if delays continue even after some of this money has reached the front line.

The noble Baroness, Lady Wilcox, is absolutely right: the NHS cannot do this on its own. But I would go further: managing children’s mental health problems must be a joint venture between the child’s school and their access to mental health services. By cataloguing this in a report, the Secretary of State can be held accountable, alongside the Secretary of State for Health, for making sure that the Government deliver on their promises for mental health for our children.

[Baroness Morris of Yardley (Lab)]

My Lords, I will speak briefly on the issue raised by these amendments. I support the thrust of them, although I do not support all the details, particularly the one about Ofsted. I think that would not be an Ofsted role, but I agree that we need to have focus on it and that some organisation needs to give it.

My worry is that we are in the foothills of learning about what we should do with mental health in school. When I taught, which was many years ago now, it was never even discussed. It was not on our agenda, yet the children I taught in the inner city were just as likely to suffer from mental health problems as the generation that we have now. We are very much learning how to deal with this, which is worth bearing in mind.

I do not know what the answers are, but I think there is a problem and it is growing. In a way, it is becoming more evident to us because we did not analyse it in that way. Historically, we have always assumed that children did not suffer from mental health problems. It could be unhappiness at home, bad behaviour or whatever, but in schools we did not focus on mental health being a problem, except in the most extreme cases. Things are being done, but we really are in the foothills and we had such a long way to go before now.

There is the whole issue about CAMHS and its underfunding. It is a disgrace—we all know that. So much more needs to be done. I was interested in hearing from the Minister was about prevention work and the things that we can reasonably expect schools to do to head off people needing more acute services. The work I do in the Birmingham Education Partnership has had some success in this. We received a grant from the clinical commissioning group—so it was actually health money—about three or four years ago. We have rolled out a programme across the city now. I think it has been taken up by the DfE and is either closely aligned to, or has become part of, the DfE initiative, where it is getting mental health leads in schools.

All that is good, and I have seen the good work happening, but it is not universally successful. In Birmingham, where we have over 400 schools, we have put in extra money, resource and effort; we value this highly and prioritise it. After three or four years, however, we have still not rolled it out to every school, and we have only one person on this. This is a major problem. That is where my concerns are.

I will end up not disagreeing at all with what the Minister says about the initiative that has been launched for mental health leads, but it is not at the pace or speed that we need. We are starting from way behind if you look at any other area of school activity, be it phonics, numeracy, PE, sports or art. We have only just started on the journey of understanding what to do to support our young people with mental health difficulties. I should like to hear from the Minister what else is going to happen, and how they will build on the small seeds which have been slowly put into the ground and will take decades to help solve the problem.

If we are to get this right, we must have a picture that schools will not be staffed as they are at the moment. I worry that it is the teacher who has become the mental health lead. To be honest, if it is the physics teacher doing that, we need them in the physics lab teaching physics lessons. We cannot constantly take teachers away from the subjects we need them to teach to give them extra responsibilities to address important issues.

I know I am harking back a bit but, in the days of Every Child Matters and Sure Start, the aim that we made a start on when I was in the department was for a school to be staffed with people other than teachers. I remember visiting a school in the north-east, in Gateshead, where the secondary head proudly told me that just under 50% of his staff were teaching. The other 51% were not teaching: they were counsellors, mentors, assistants, lab assistants, careers advisers—all those other things. Unless you have that multitude of roles within the school, you cannot expect schools to be a key player in this; they just cannot do it. They can enable politicians to tick the box, make a speech and say, “I have done this”, but they will not be delivering effectively.

My vision would be to go back to the model of schools as bases where we can begin to support children’s mental health needs. The only way to do that adequately is to staff them with people who have the skills to do it. Of course, teachers have a role in that and we need mental health leads. I do not have a problem with that, but we cannot have nothing between the mental health lead and CAMHS. That is what we have at the moment: there is nothing in between, as far as a school is concerned. That is my worry.

It is a shame that Amendment 171Y was not spoken to as it is about testing eyesight. It is a great little amendment and it would be effective. I happened to work with some researchers once who did research in American kindergartens, the lowest schools in the system; they were experts in literacy and numeracy. They did eye tests on all five and six year-olds, and the number of children proven to need glasses at that point was unbelievable. They gave the kids a pair of glasses and kept a pair of glasses at the school—it was in a deprived area—and the attainment rate at the school rose significantly. No one had spotted that poor eyesight meant that the child did not know that they were missing out to some extent, especially children sitting at the back of classes. It is an important amendment, which would not need as much resource as mental health, but it would add to well-being and health. That would acknowledge the point that if we want to remove barriers to children’s learning, making sure they are mentally and physically well is a prerequisite for everything else.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want to raise some qualms about this set of amendments. For different reasons, I find myself agreeing with the way the noble Baroness, Lady Morris of Yardley, has just raised some issues.

I have spoken, on earlier amendments, about my concern about pathologising and medicalising all sorts of everyday experiences for children and adolescents. If we see the trials and tribulations of growing up— goodness knows, there are many of them—too much through the prism of mental health, we can contribute to children being anxious and worried about their own mental health. There is a kind of danger that we make children self-absorbed or unable to get over things and undermine their resilience. Important work has been done on this. One of my favourite books is The Dangerous Rise of Therapeutic Education by Professors Kathryn Ecclestone and Dennis Hayes, which was ahead of its time in worrying about some of these issues and raising them. There is a whole body of research on this work.

20:45

I started my professional career many decades ago as a mental health social worker before I became a teacher in further education. At that time working in mental health, I watched the expansion of what constituted a mental illness. Many people in the world of psychiatry and psychology are concerned about this. One thing the noble Baroness, Lady Morris, said was that it is early days with some of this. We have to be a bit careful and think about what we are doing when kids look as though they are stressed out—though obviously there are problems.

For example, we know that there has been, particularly among young girls and adolescents, an outbreak of self-harm. There is a real problem there; it is a kind of social contagion, and then we think that they need CAMHS support. On the other hand, there has also been a slight social contagion of gender dysphoria—certainly in many schools, among a lot of young women—but we are not allowed to say that that is a mental health problem because it apparently would be a form of bigotry. I suggest a certain modesty here in finding out where we are at.

We also have to be a bit honest with ourselves and say that maybe one of the greatest scandals of abandoning the young in recent times, and a real failure of safeguarding, has been that we closed down schools so much during lockdown—it was in and out, on and off. It was obvious what the consequences would be. There was collateral damage: the virus itself was not so much of a threat to young people but they suffered the consequences of two years of not knowing what they were doing—again, I recommend that people read the new UsforThem book The Children’s Inquiry, which includes a lot of evidence. That was what led to a lot of the problematic aspects of the Bill being rushed through —a panic about children not being in school and all the rest of it. This area requires great thought and a careful look at the research. We should certainly not rush in and it should certainly not be part of the Bill.

My final point is that, honestly, the idea of Ofsted inspections being asked to judge the mental health of the student body is traumatising even thinking of it. For any of us who have been in education, we know that the biggest dilemma for teachers is that they have to pass on a body of knowledge—a millennia of knowledge. You never know what to do. The curriculum arguments would be the bits that are the best of what is known and thought. Then there is the modern world: which bits do you pass on to young people? That is our obligation as educators, but you spend the whole time thinking that you have to cut out loads of stuff.

My concern is that if the purpose of schools becomes too embroiled in the therapeutic, we will end up never educating any young people. That would be bad for their physical and mental health, and certainly for their educational development. That is what schools should be for, without being insensitive to some of the mental health challenges of the day.

[Lord Storey (LD)]

For the first time, I agree with the noble Baroness, Lady Fox, in many of the things that she said. This is a first.

One thing I want to add is that the Covid lockdown certainly created real problems. However, you can go further back and say that the recession created a situation whereby local authorities had massive cuts to their budgets. For example, my local authority in Liverpool lost a third of its budget, and services such as CAMHS just went. The resource was not there.

We all understand that young children’s mental health is hugely important, but we have not really thought it through. I do not mean this as any criticism at all. Governments will say, “Yes, we’ve got this scheme going, we’re doing this and we’re doing that”, but I would much prefer it if we completely understood what provision we needed to provide in all our schools and then made sure that it was absolutely Rolls-Royce. I would rather we said that, in every single primary and secondary school in England and Wales, we will ensure that somebody referred to CAMHS is seen within 10 days. Currently, we cannot do that. On Monday, we took evidence from a group of parents regarding, I am sorry to say, alternative provision. A very young, single parent talked us through how she had waited never mind days but months to get referred to CAMHS. Let us do just one small thing at a time and be successful in it.

The second thing I want to say, which my noble friend Lady Brinton mentioned, is the importance of linking up with health. We are not very good at this. I remember that health was the real problem for the education, health and care plans in the Children and Families Act. Getting health to work with education was an absolute nightmare, so good luck on that one. I do not understand why that is the case.

I turn to Amendment 171Y. Noble Lords will be sorry to hear that the noble Baroness, Lady Finlay, has had to catch a train back to Cardiff, so she asked me whether I would read out her speech—am I allowed to say that?

[Baroness Penn (Con)]

My Lords, the noble Lord can speak to the amendment, but he should not read out the noble Baroness’s speech, as she is not here.

[Lord Storey (LD)]

I am learning all the time, after 10 years.

Some 80% of all learning is visual. A child who has undiagnosed, uncorrected vision problems faces academic disadvantages, particularly in literacy and numeracy. This affects their safety, social and cultural development, and physical agility, and disadvantages them for life. The current child screening programme recommended by the National Screening Committee is targeted at four to five year-olds starting school, but a recent pre-Covid study suggested that only around 50% of local authorities are fully compliant with its specifications, and there is no commissioned post-screening follow-up. There is no provision for vision screening in other age groups, despite the numbers needing visual correction increasing in secondary school years.

The prevalence of myopia—short-sightedness—among 10 to 16 year-olds has more than doubled in the past 50 years from 7.2% to 16.4% and continues to grow. During Covid, short-sightedness may have increased between 1.4 and three times, driven by more time indoors and increased screen time. Up to 15% of pupils need spectacles or need their spectacles reviewed. Although an NHS eye examination is free for under 16 year-olds, a child might not be fully aware of, or may be reluctant to admit to, vision problems that would be picked up by a simple universal screening programme. Parents, teachers and carers might also not realise that the child’s vision is deficient. Universal screening would ensure that advice is available to all.

Basic smartphone or laptop-enabled screening could take less than one minute per eye to carry out. It builds on screening carried out in developing countries by volunteers using an “E” shape. Here, training of volunteers or support staff takes only half a day. Reports from schools are positive. It simply alerts the parent or guardian that the child should have a free NHS eye check. The details of the standard can be agreed by the Secretaries of State for Education and Health, with appropriate input from professional bodies and education advisers.

The amendment would not interfere with the NHS’s special schools eye care service, which began to roll out in April 2021 to over 70 special schools. Four in five children with learning difficulties attend special schools and are 28% more likely to have a sight problem than other children; 23% need glasses. The NHS service in special schools is praised by schools and parents. It has already identified that half of children in special schools have a sight problem, and more than 4,000 children have already benefited from it. I hope the Minister can provide an assurance that the rollout of the NHS’s special schools eye care service will restart, to reach a further 130,000 children in the next few years.

The amendment empowers the Secretary of State to set the standards to provide simple screening for all schools to alert to possible vision problems, which, if unaddressed, threaten the academic potential and social development of the child. It aims to remove health inequalities and to enable all children to access the support they need.

[Baroness Penn (Con)]

My Lords, taking first Amendment 145, the Government recognise that some pupils, such as those with mental ill-health, may face greater barriers to attendance than their peers. To ensure that all pupils receive the support they need to remove barriers to attendance, the department has recently published new attendance guidance entitled Working Together to Improve School Attendance. Through this Bill, we intend to make this guidance statutory.

The new guidance sets a clear expectation on all schools to have an attendance policy that is applied in such a way that it considers the individual needs of pupils and supports pupils to overcome barriers to attendance. This includes supporting pupils with mental ill-health, so that they can attend school regularly. This is in addition to obligations under the Equality Act 2010 and the UN Convention on the Rights of the Child. Ofsted will consider schools’ efforts to improve or sustain high attendance as part of its regular inspections, which includes efforts on their attendance policies.

On Amendment 170, it is right that schools should be accountable for their role in supporting their pupils’ mental health, but requiring Ofsted inspectors to assess pupils’ mental health and then to restrict inspection outcomes on that basis, as this amendment would do, would place responsibility for pupils’ mental health squarely on the shoulders of the individual school. I hope your Lordships would accept that that is not appropriate. Many factors can influence a pupil’s mental health and some of these, such as the culture of a school, are inside the school’s control, but many others are not.

As I think noble Lords have agreed on previous debates on mental health, it is not for schools to take on the role of providing specialist mental health support. It is important that we hold schools to account for the right things: delivering a high-quality curriculum that meets people’s needs; providing strong pastoral support; promoting a strong ethos and an inclusive culture; ensuring pupils are safe and feel safe; and engaging effectively with parents and local services. These elements play a key role in supporting pupils’ mental health and are an essential focus of Ofsted’s school inspections.

On Amendment 171M, the department already gathers and assesses a range of data on children and young people’s mental and physical health to improve our understanding and inform the support we provide children, young people and education settings. We do this through publishing an annual State of the Nation report. The department also undertakes and publishes pupil, parent and teacher omnibus surveys, which include a range of questions about the type and level of mental health support provided in schools.

What the debate has been trying to get at—and we have had this for several days in Committee—is thinking through and making sure the Government continue to be held to account for improving the provision of mental health services for young people, including in the support they get through schools. We have put quite a lot of thought and work into that, but there is definitely more to do.

To take the point from the noble Baroness, Lady Morris, we have a policy of putting funding in place so that every school can have a mental health lead trained by 2025. That mental health lead can take a whole-school view of the school’s role in supporting pupils’ mental health. A lot of that might be about prevention, discussion in PSHE classes, the school’s ethos and other things. They will then be equipped with the training to make sure they develop the right approach for their school, but we know that they should not provide specialist mental health support. That is why we are rolling out mental health support teams to provide both early support within schools and that link to specialist support. That is funded by the NHS.

21:00

However, those teams are no good if the services are not there for students to access. This is why we are increasing funding to children’s and young people’s mental health every year; it is going up as a proportion of spend compared to both adult mental health and the NHS overall. Noble Lords have made the point about pace, and I appreciate this because, even with the money there, it takes time to scale up those services. So it is not that we are complacent or claim to have all the answers, but I reassure noble Lords that we have thought this through from the perspective of the funding for the specialist services and the link between schools and those specialist services. We are then equipping teachers within those schools to think about what can be done within the school itself. I think we are making good progress on that.

As a final point on pace, we are ahead of our aims on those specialist mental health support teams. We were aiming for them to be in a quarter of schools by next year, but as we are already at 26%, we have increased our ambition to 35% of schools. Again, we need to go further, but I hope that this provides some reassurance to noble Lords on what we are doing and how seriously we are taking it.

On the NHS side of things—which noble Lords have touched on—there is a series of commitments about introducing new access and waiting time standards for mental health services to ensure timely access to community health care. This includes a new access and waiting time standard for children and young people, and their families or carers, presenting to community mental health services to start receiving care within four weeks from referral.

Finally, on Amendment 171Y, introduced by the noble Lord, Lord Storey, as noble Lords are aware, free eyesight tests are available at opticians, funded by the NHS, for all children under 16 and for young people under 19 who are in full-time education. Further, vision screening is usually carried out for four and five year-olds, most often in school settings, to check children’s eyes. Under the opportunity area programme, we are running the Glasses in Classes scheme in five disadvantaged areas in England. We are also trialling a feasibility study into school-led vision checking across schools on the North Yorkshire coast. While it remains the case that qualified NHS staff and opticians are best placed to undertake regular annual vision screening for most children and young people, I hope that noble Lords are reassured by the extensive work the Government are doing.

Returning to the point on mental health, I hope that I have provided a better picture of what we are doing and how we have thought about our actions in this area. With that, I hope that the noble Baroness, Lady Wilcox, can withdraw her amendment.

[Baroness Wilcox of Newport (Lab)]

I thank the Minister for her reply. Picking up on the glasses point raised by my noble friend Lady Morris and in the amendment of the noble Baroness, Lady Finlay, I remember that we had a huge influx of Roma children to Newport a couple of years ago. Ensuring that they got their eyes tested was very much part of what we did for them—it opened up a whole new world and we kept a spare pair of glasses in school for them. We had about 150 children in one fell swoop. It was a great idea and I have seen it work in practice.

The new guidance to which the Minister refers will no doubt be welcomed, if there is specific awareness of mental health issues. I note her response regarding Ofsted and the comments from other noble Lords, but I still think that there are opportunities that could be developed. We indeed want to hold the Government to account for improving and developing the approach towards mental health matters; it is about playing catch-up, and this is not going to go away. On that basis, I beg leave to withdraw my amendments.

Amendment 145 withdrawn.

Clause 53 agreed.

Clauses 54 and 55 agreed.

Amendment 146 not moved.

Clause 56: Expanding the scope of regulation

Amendment 146A

Moved by

[Lord Lucas]

146A: Clause 56, page 59, line 4, at end insert “or a family”
Member's explanatory statement
This amendment is intended to stop large families being classed as a school.

[Lord Lucas (Con)]

My Lords, large families are not a school unless they are very large families and fish. I beg to move.

[Baroness Meacher (CB)]

My Lords, I want to speak to Amendments 147 and 152.

I applaud the Government for including in this Bill Clause 56, which seeks to ensure that schools currently avoiding registration and inspection are included in Ofsted’s remit in the future. This is a far more important issue than we may have considered it. This country has been standing by while an unknown number of extremist, fundamentalist, isolationist schools are teaching children to reject the values of the country in which they are growing up. What will some of those children do when they grow up? Will they join a terrorist organisation? We simply do not know.

Ofsted has written to me to give us the benefit of some of its information, which is worth quoting. It says that at least 6,000 children are being educated in 900 unregistered schools, or, as it puts it, likely many more. It is very concerning that Ofsted has issued more than 100 warning notices to those it believes are running illegal schools, and 40 % of those settings have not changed to comply with registration as a result. These are people who do not respect the law, so we have to be very tough with them.

It is worrying that children are not learning the most fundamental subjects, including maths and English. Not only is the narrow religious curriculum in many unregistered schools unacceptable but these schools may have unsanitary and unsafe conditions. Ofsted says that it found settings with severe health and safety hazards, and other problems. No one is able to check on these things so long as schools evade registration.

I want to thank Rob Cann of Humanists UK for his very detailed briefing and the precise wording of these amendments.

In Clause 56, the Government are seeking to extend registration to independent education institutions—that is fantastic—but only to those which provide all, or the majority, of the child’s education. Herein lies a significant loophole. The proprietors of some such settings know that if they are inspected, they will have to choose between changing to something very different and closing down. They are therefore very wily and will do all they can to continue to evade regulation and inspection. They will use every loophole they can find to wriggle out of their safeguarding duties. Amendment 146B would limit registration to establishments that provide 18 hours of teaching for 39 weeks of the year. That would be something, but I believe these schools would adjust their regime and continue to avoid registration.

Without doubt, as soon as the Bill receives Royal Assent, these proprietors—who all know one another; there are little groups of them—will get together and split their provision into separate morning and afternoon settings, or some other configuration such as one teacher taking kids in the morning, another in the afternoon. Neither will then be subject to registration under Clause 56 as it stands, and I would be grateful if the Minister would comment on this loophole and whether the Government are content to see these extremist schools escape the important purpose of this Bill.

I recognise that Clause 56(2) allows further tightening definitions to be done through regulations. Here, I am going to say something from experience. Nine years ago, I allowed, if you like, the Government to have a little adjustment to my proposal for an amendment on the face of a Bill on the basis that they would introduce regulations and deal with the problem. I thought, “Well, that sounds okay”. Was I naive? Nine years later, nothing has happened, so I am not impressed with the idea that this can be dealt with through regulations. I fear that it simply would not be done. That is a bit cynical, but it really is my experience.

My Amendment 147 has been carefully thought through. By applying registration only to establishments providing at least a quarter of a child’s education, it would not catch common after-school classes in music, sport or, indeed, religion. I very much hope the Minister will feel able to accept it.

Amendment 152 would close off another loophole for unregistered schools. Many of them operate in private dwellings; indeed, 85% of illegal education settings in Hackney, the borough with the greatest prevalence of illegal schools, are private dwellings. If the proprietor puts down a mattress in a school, on inspection, the school may be classified as a dwelling and a warrant would be required under the law as it stands. Without a warrant, the inspection would be invalidated, so, as Clause 63 stands, a warrant will be required for almost every investigation to prevent that. This will generate unacceptable pressure on the courts, the courts will then put a whole lot of pressure on the inspectors to prove that they really need the warrant, and the whole system could be snarled up. It is reasonable to suppose that determined proprietors will disguise their settings as dwellings to try to protect themselves from Ofsted’s new powers. As I said, they will do just about anything.

Clause 63 introduces a requirement that inspectors can enter a private dwelling only if a warrant has been issued, and a request for a warrant is permissible only if consent has been refused. This leaves in limbo the situation of an inspection in what could be deemed a private dwelling where consent has been given. I am sure this is not the intention, but the wording leaves open the situation of those inspections where consent is given but there is a problem; it leaves an issue.

Registration and inspection of schools must, of course, be dealt with sensitively and authorities cannot be given free access to private dwellings without a warrant if consent is not given. Nevertheless, if the first intimation for Ofsted that a school is in a so-called private dwelling is when it attempts to enter the building, it will need to go away, fill in the forms and ultimately get a warrant, which could take a week or more. This will allow lots of time for the proprietors to conceal, dispose of or fabricate false evidence about whether a school was in operation within the dwelling. Surprise is essential in such situations.

Some proprietors will be less cunning than others and perhaps have less need to be, if a proprietor provides access immediately to an inspector arriving at the address. Amendment 152 clarifies that a warrant will be required only where consent has not been given for entry and where the setting visibly appears to be a dwelling. That sounds a bit pedantic, but it is important, on the basis that these people may just put a mattress down somewhere and claim it is a private dwelling. What is a private dwelling? All sorts of things can be done by them.

I hope the Minister will therefore ask officials to give serious consideration to the following two points. First, the current drafting of Clause 63 is poor and risks making matters worse for Ofsted inspectors. The element of surprise is so important, yet Clause 63 seems to reduce the scope for that surprise. Secondly, the clause does not clarify what a private dwelling is. Will the Minister ensure that, if possible, a definition of a private dwelling for the purposes of the Bill is given in it?

I failed at the beginning of my speech to thank the Minister very much indeed for the discussion we had, and I remember that one of her points was: how on earth do you define a private dwelling—it is probably impossible? I hope that efforts will be made to define a private dwelling to avoid what I call the mattress problem.

Again, I emphasise that the Government seek to achieve a very important objective in these clauses. I hope these comments are helpful; they are certainly intended to be.

[Baroness Whitaker (Lab)]

I should like briefly to add my support to these two very sensible amendments, which would stop unscrupulous unregistered schools circumventing the law and speed up the inspection process.

[Lord Mendelsohn (Lab)]

My Lords, I rise to speak to Amendments 171C and 171D. I strongly support the amendments from the noble Baroness, Lady Meacher, as well. I think she has a very correct estimate of the challenges and has presented some situations that are rather familiar in how they will be used to try to circumvent the Bill. I express my thanks to the Minister for her courtesy and for the time with her and her officials to discuss the matters raised in these amendments.

21:15

These amendments relate to unregistered schools or, more accurately, illegal schools. The Government’s measures, together with the provisions on home schooling, represent an important translation of the commitments to address a long-standing problem. The commitments made in 2018 are a vital step to deal with a very long-standing and thorny problem.

I am pleased that the Government have drafted the Bill with a strong acknowledgement that there are those who are determined to dodge or ignore the legislation. The amendments I propose are suggestions as to how any potential gaps could be eliminated in the Bill. What was previously unacceptable must no longer be possible.

The earlier debates relating to home education raised the important concerns of some home educators, and I hope the Minister can provide reassurance and allay the fears of the majority of home educators. But it is vital that local authorities have the capacity to seek and probe to get relevant information, as those who use illegal schools largely claim that they are home educating. This is clear dishonesty.

My amendments are in the vein of trying to address this. Those who provide or use unregistered settings, many from closed communities and organised groups, have a strong intent to avoid the rules and no interest in balancing the rights to educate with proper safeguarding. They have used loopholes and the lack of investigative rights, access, capacity and data to avoid complying with the existing law, so it is vital that the Bill properly ensures that adherence follows its passage in law.

The Bill goes to great lengths to address this. The definition based on time at unregistered settings helps to close the leeway given to the nature of supervision and addresses the false representation of home schooling. Providing powers to Ofsted to enter and inspect is welcome, and strengthened by being underpinned by police support if needed—but I note and strongly agree with the points from the noble Baroness, Lady Meacher, on this one. It is also welcome to have the new offences of failing to provide documents or information or be interviewed, but I hope that the Minister will consider that the reasonable excuse may well provide some leeway and should be supplemented by guidance. I am very pleased that Clause 56 delegates powers to adjust the rules by regulation and secondary legislation to future-proof it against loopholes not yet foreseen.

While I claim no crystal ball, I think the amendments that I have proposed further strengthen the Bill in a couple of key areas. I also agree with the noble Baroness, Lady Meacher, that, while we always tend to have these provisions, they are rarely followed up with the measures or speed necessary.

Amendment 171C is a general anti-avoidance provision. I stress the use of anti-avoidance measures to provide a broader latitude of discretion for the people we are entrusting with the role of making sure that the right education is provided. The key measure is to make

“provision for Ofsted to have the authority to investigate any suspicions of an institution trying to work around its qualification as an educational institution, and therefore the regulatory provisions, and that Ofsted … can determine whether to initiate an investigation if this is perceived to be occurring and that there is accountability for these actions.”

Amendment 171D is another discouragement but tries to target not just the providers but the enablers, who may try to assist the establishment or operation of such institutions but can avoid the definitions of “provider” in the current framing of the Bill. The amendment

“would enable the revocation of charity status to ensure that charity status is not accorded to those involved in helping, assisting or facilitating disobedience”.

I am aware of the deficiencies in the drafting of these amendments, but I would be grateful if the Minister considered their intent carefully. Of course, I will be happy to assist in any way I can. When passing the Bill, it is essential that we live up to the intent behind it and ensure that no one can inveigle it in any way or at any time.

[Lord Storey (LD)]

I shall speak to my own Amendment 149, and also speak to Amendment 152 and 171C. I thank the noble Lord, Lord Mendelsohn, and the noble Baroness, Lady Meacher, for the amendments and congratulate the Government for, for the first time, trying to sort this problem out. I do not want to repeat everything that the noble Baroness, Lady Meacher, said, because she has painted the situation as it has existed, which is, frankly, totally unacceptable in our society.

I met with people from Ofsted yesterday—and I have had a long-running dialogue with Ofsted over the issue of unregistered schools. I asked them if we have sorted this issue out. They said, “Yes, Government have done the right things now, and this will make a real contribution”. They paused and said that, if we wanted to do something further, we could do, just to close that very small loophole in the issues that the noble Baroness, Lady Meacher, raised. I hope between Committee and Report, the Government might look at this again. It would be silly to have got so far, and not be able to deal with that last bit where they morph into private dwellings. I know the Minister is very keen that we deal with this, and so I hope she will think carefully about that.

I turn to unregistered schools. We talk a lot about young children and attendance at school, and a lot of time, quite rightly, we talk about special educational needs. If there is one group of young people who are constantly forgotten, and pushed from pillar to post, it is those young people who are excluded from school. They are often excluded from school for all the wrong reasons. They are often young people who have special educational needs. In fact, the vast majority of young people excluded from school have special needs. Just think what happens to them. If they are lucky, there is a pupil referral unit on the site, and that seems to me to be the right model. I know the Government are looking at expanding the number of pupil referral units. It seems right to me that they are on the school campus and they can draw from the expertise of the school, and the young people can, we hope, go back into mainstream schooling—if that is the right expression to use. I welcome that, but that is not going to deal with the problem, because the progress in providing that number of pupil referral units will take a long time.

So what happens? If they are lucky, these young people go to a registered provider, but there are not enough registered providers. There is also the issue, which we have talked about quite a lot in this Chamber, of unregistered providers. Some providers are genuine, but some just want to make money and they are almost babysitting those young people. It is absolutely awful: Ofsted told me of a number of providers that charge £50 a day, plus the taxi fare in. If you speak to Ofsted, they will tell you that. What do you get for £50? You get somebody childminding a really vulnerable young person who has special educational needs. Why does that happen? It is because we do not have the places in registered schools, and also because local authorities are strapped for cash. In the past, I have questioned why local authorities do that. I think they do it because they are strapped for cash, but also there is not the provision available. If most of the young people have special educational needs, that special educational needs money does not get to them. Certainly, the staff in these establishments do not have the qualifications, the training, the expertise or the interest in giving them the support and education these young people need.

I do not have all the answers to the current situation we are in. Clearly, the Government are looking at this issue and we need to keep it high on our agenda and keep coming back to it. Noble Lords can be sure that we on these Benches will do that.

There are a couple of practices that I do not like, and which can be closed down straightaway. There is the “managed move”, which used to happen with local authorities: a young person who was disruptive, rather than being permanently excluded from school, was moved to another school to be managed. Sometimes it worked at the other school, or then they would maybe be moved to another school, and if it did not work, they would go back to their original school. If that failed, they would be permanently excluded. Now they go on a dual register, so they are on the register of the school that they are excluded from and the school or alternative provision that they are going to but then, come the examinations, they are immediately taken off the host school, because they affect the overall results. We must examine that very carefully indeed.

The Minister knows the problem better than anybody. I just hope that we can come to some sensible moves on this.

[Lord Berkeley of Knighton (CB)]

My Lords, I want to embellish a couple of points particularly pertinent to the noble Lord, Lord Lucas, and my noble friend Lady Meacher.

Some noble Lords may remember that a few years ago we created care orders in cases of FGM for the family court. What emerged from the research that I did into that was that it was the family units that were espousing FGM but, furthermore, they liked to see themselves as a society—and, in certain cases, belonged to a society—that initiated and believed in female genital mutilation. I make this point because, as the noble Baroness, Lady Meacher, said, it is very easy for a small group of people to move from being a family unit to being accepted possibly as a “school” and thereby having the moral authority to take forward these practices and propagate them. I mention this as a point which we should bear in mind, given what my noble friend Lady Meacher and the noble Lord, Lord Lucas, were warning us about.

[Baroness Chapman of Darlington (Lab)]

The amendment tabled by the noble Baroness, Lady Meacher, is a characteristically sensible suggestion. I hope that the Government are mindful and assure the House that there is no loophole or that an amendment will be used to close it. The amendments tabled by my noble friend Lord Mendelsohn raise similar important issue. The Minister is nodding, so I am sure that she will have something positive to say about this.

The point made by the noble Lord, Lord Storey, about excluded children, is an important one. Maybe we cannot deal with everything in his remarks through this Bill, but I hope that we can attend to those issues that have been around for such a long time. We still see managed moves used far too frequently. It is gaming the system. We know that it goes on. I am sure that when we put in measures to deal with that there will then be another set of behaviours to tackle, but such is life.

On our Amendment 171G, I was very keen to get something in the Bill that has come out of Josh MacAlister’s potentially ground-breaking report. MacAlister’s argument is that in too many places the contribution and voice of education is missing from multi-agency safeguarding conversations. I hear often from partners, usually in health, how difficult it is to engage with schools. Schools want their voices to be heard and to have a statutory role but are unable to do so at the moment. The recommendation from the MacAlister report is that there should be the opportunity that there is in this Bill—well, I am saying that it is an opportunity in this Bill. If we do not take it, I wonder whether when we get the Government’s full response to the MacAlister report we will look back at this and regret that we did not take the opportunity of what is quite a simple recommendation.

21:30

MacAlister said that children constantly face new threats, including online harms. There are ever more sophisticated criminal networks and what he describes as the best team need to be on the field. That should include schools. He has a really important point, and it might be a good idea to incorporate that into this Bill.

At the risk of disrupting the friendly tone of consensus in our deliberations so far, I want to speak to the issue in Amendment 154 on the tax status of private schools. It is something that we on these Benches have felt quite strongly about and have had a growing interest in in recent years. The point we want to make is that independent schools are not charities, and we should not be treating them as if they are. The services they provide are not primarily for public benefit; they are for the benefit of those who can afford to use them.

Some private schools offer bursaries and I have heard every argument and thread in this row over the years. We obviously know that they offer bursaries and many of them go to some considerable effort to contribute to the public good. That is recognised, appreciated, valued and respected. But that is no different to the way many businesses operate. Timpson, for example, does wonderful work with offenders—it provides opportunities and does great stuff—but Timpson is not a charity. The fact that many private schools work in their communities and offer some opportunities is very much on their terms and is quite limited. We do not consider that that makes them charities.

Around 500,000 pupils attend independent schools in the UK. It is true that around one-third of these receive some help with their school fees, but most of these children win scholarships or benefit from something like a staff discount. Among those who get some help, only a very small minority pay no fees at all. It is not usually means-tested. The average amount of financial support received is around one-third of the fee. Given that I have seen estimates of an average fee at between £13,00 and £15,500, that is still a lot of money for a child attending—even with support from the school—to have to find: around £8,000 to £10,000 per year. Only 1.5% of means-tested bursaries and scholarships include any help at all with additional costs like uniform, so we really query the “widening opportunities, social mobility” arguments that you hear in defending charitable status.

We know too that only 7% of the population go to private schools and yet they account for nearly two-thirds of senior judges, six in 10 Permanent Secretaries, and—I read somewhere—around six in 10 Members of the House of Lords. I do not know if that is still true, but I hope that does not affect in any way how we consider what is a very sensible amendment to this Bill.

Charitable status gives private schools around 80% relief on their business rates and saves a school like Eton more than £500,000 a year. We think we can save around £1.7 billion by removing tax breaks for private schools. Even if you are relaxed about the impact on society, equal opportunities and all of those issues, it is very difficult to argue that this is the best use of £1.7 billion. Removing a tax break from private schools should not be viewed as a matter just of ideology, though I am quite relaxed about saying that there is some ideology in this. It is also good management of public finances.

I ask noble Lords to consider whether this really is the best use of public money given the cost of living crisis and the pressures on the vast majority of families. This is about asking noble Lords to engage with the reality we face in 2022. Independent schools are just not charities in any modern sense. It is a status they have inherited for good historical reasons, but one that we think is no longer justifiable.

[Lord Lexden (Con)]

My Lords, I will comment briefly, following on from the noble Baroness. As usual in education debates, I declare my interest as a former general secretary of the Independent Schools Council, which accredits and represents some 1,400 schools, and as the current president of the Independent Schools Association, one of the council’s constituent bodies, which has some 580 of those schools in its membership. There is not a household name among them, and none of them is large in size: many have no more than 200 pupils, some less. But all of them are serving their local communities; responding to their parents’ wishes; striving to keep fees down; and fulfilling their charitable purposes, not just by providing education—recognised as a charitable purpose in law for over 400 years—but by delivering wider public benefit through bursaries, partnership projects with local state schools, and participation in local community projects. Because of the lateness of the hour, I will not give further details in full reply to the noble Baroness.

This amendment seems to have been dug out of the Labour Party’s archives.

[Baroness Chapman of Darlington (Lab)]

It has not been dug out of an archive. I expect it to be in our next manifesto, so I expect the noble Lord to have to engage with this on a regular basis.

[Lord Lexden]

I want to give some background, if I may. At the general election of February 1974 the Labour manifesto declared:

“All forms of tax-relief and charitable status for public schools will be withdrawn.”


With some redrafting, “private schools” being substituted for “public schools” for example, this remained the Labour Party’s position during the rest of the 1970s and throughout the 1980s. At the 1992 election, the threat to charitable status disappeared, 30 years later to suddenly come back now, a weary ghost from the past.

What has happened during the last 30 years? Something significant has occurred: schools in the two sectors of education have moved ever closer together. The credit for this, of course, belongs to the schools themselves. They were drawn together by a recognition of the mutual benefits of partnership in so many different areas—in teaching, particularly in specialist subjects, music, drama and sport. Today this large programme of joint work is underpinned by a memorandum of understanding between the Independent Schools Council and the Government. Details are available on the council’s Schools Together website. Extensive though the programme is, there is more to be done. The best thing that everyone who has the interests of education at heart can do is to press independent and state schools to do more together. Noble Lords opposite should perhaps visit some independent schools to see what partnership work they are carrying out with state sector colleagues—that is the word they use, “colleagues”.

When I was at the Independent Schools Council, years ago, I found it quite difficult to interest the Conservative Party in any of this; Tony Blair’s Government was a different matter. Education Ministers, including Charles Clarke and David Miliband, came to the council’s offices for discussions. An official independent/state schools partnership scheme was set up to encourage progress, backed by modest funding from the Department for Education. In 2000, the then Schools Minister wrote that there had been “a huge cultural change”. In January 2001, she wrote: “There are no plans to legislate to remove charitable status from independent schools.” The same Minister got independent schools seats in the General Teaching Council and introduced special fast-track arrangements to help teachers in independent schools get QTS. She referred to them earlier in these debates. Always listen carefully to everything the noble Baroness, Lady Morris of Yardley, says in this House. I am sorry she is not in her place at the moment.

For years, independent schools have used the benefits of their charitable status, and more besides, to give help with fees. Back in 2001, I used to say that for every pound of benefit received, they provided £2.30 in help with fees. What would be the effect of overturning a law that has stood for over 400 years by confiscating the schools’ charitable status? Fees would rise, bursaries would fall, and schools would become more socially exclusive. I think the policy embodied in this amendment should go back to the Labour Party’s archives.

[Baroness Barran (Con)]

My Lords, that was a very interesting and wide-ranging debate on a number of important issues, which I will try and cover in my remarks. I turn first to Amendment 146A from my noble friend Lord Lucas, which would exempt settings that are classified as being a family from regulation under the Education and Skills Act 2008. I can assure my noble friend that the Government already, and will continue to, consider private arrangements where parents home educate their own children only as exempt.

Turning to Amendment 146B from the noble Lord, Lord Knight: we consulted in 2020 on defining full-time provision as being 18 or more hours per week. However, we concluded that this approach would encourage gaming of the system, allowing settings to opt out of regulation by operating just short of the threshold. We heard powerfully from the noble Lord, Lord Mendelsohn, and the noble Baroness, Lady Meacher, about how there are settings determined to do just that. So, guidance will be produced to help settings to understand where the registration requirements apply.

Amendments 147 and 149 from the noble Baroness, Lady Meacher, and the noble Lord, Lord Storey, seek to register part-time provision and other unregistered provision where local authorities place children. The noble Lord, Lord Berkeley, also highlighted some of the cultural sensitivities that arise in addressing some of these settings. Unregistered alternative provision, as the noble Lord knows, can provide a valuable hook back into learning for children who have complex needs or require bespoke packages. Its use, though, as the noble Lord knows extremely well, requires extremely careful planning and oversight. We absolutely agree on the need to act to address poor commissioning practice, and I know my officials would be very keen to meet with the noble Lord if he would be agreeable to discuss this further. As we set out in the recent special educational needs and alternative provision Green Paper, we are absolutely committed to strengthening protections for children in unregistered alternative provision, and we will be issuing a call for evidence before the summer on its use. I know the noble Lord will contribute to that.

I turn to the points raised by the noble Baroness, Lady Meacher. Regulating part-time settings would address the risk that currently unregistered full-time provision is split into separate settings. I know this is also a concern of the noble Lord, Lord Mendelsohn. However, most part-time provision does serve a legitimate purpose, and this risks interrupting the support and education that those settings provide, where it is provided legitimately. We believe that automatically applying the regulatory regime for independent schools to therapeutic and part-time settings would be inappropriate and likely to introduce unnecessary burdens. However, we will look at this again in the light of the call for evidence.

On Amendment 152 from the noble Baroness, Lady Meacher, Clause 63 introduces, as she described, new search powers. The powers as drafted aim to balance the need to enable Ofsted to search effectively with the safeguarding of civil liberties. This amendment would risk disrupting that balance. I know that the noble Baroness’s concern is that one would lose the element of surprise if inspectors went to an address and then had to go away and get a warrant, but requiring warrants before people’s homes are searched, particularly where consent is not given to enter the property, is a proportionate safeguard.

21:45

However, we do believe that the element of surprise can be maintained, because the Bill allows for pre-emptive warrants if one of three conditions are met. Those conditions are that:

“consent to enter is unlikely to be given unless a warrant is produced”,

that

“it is not practicable to communicate with any person entitled to grant entry”,

or that

“seeking consent to enter may frustrate or seriously prejudice the purpose of entering.”

So I think we have the grounds, in the context the noble Baroness describes, to use pre-emptive warrants. I know that when we met, she was also worried about the capacity of the courts to cope with those applications. Ofsted plans its inspections carefully and will be able to apply to the court in appropriate time, before a warrant is required. Courts hear applications for warrants every day. I think the phrase the noble Baroness used was that the courts would get “snarled up”, but we are confident that that would not be the case. I hope that addresses the points raised in her amendment.

Turning to the points raised by the noble Lord, Lord Mendelsohn, in Amendments 171D and 171C, of course the Government agree with him, in the spirit of Amendment 171D, that all children have the right to receive a broad education and that schools should be held accountable for this. All registered independent schools that are charities are required to provide a broad education, and the inspectorates and the Department for Education can hold them to account for this. Settings which are not registered independent schools may have charitable status, but they of course need to show that they meet their charitable objects, including through the reporting each year to the Charity Commission that all registered charities have to undertake.

Where a charitable setting is operating in such a way that it is providing a full-time education to sufficient primary or secondary pupils, Clause 56 would require it to register. It can then be held to account to provide a broad education, just as with other schools. We do not see the need to remove charitable status from charities that are not operating as schools. They may have some legitimate involvement in the education of primary or secondary-age pupils, and they could have a range of other valid charitable objects. But I know the purpose of the noble Lord’s amendments—I think the word he used was “anti-avoidance”.

The Government consider that Amendment 171C is unnecessary. Ofsted can already inspect settings reasonably believed to be operating full-time unlawfully and without registration. That would permit investigating the activities at a number of premises where inspectors reasonably believed on the basis of evidence that they were really operating as one institution. That evidence might relate to individuals acting in concert, and other evidence—

[Baroness Meacher (CB)]

This is not quite the right moment to do this, but I thank the Minister for allowing me to say a word. Has she been in touch with Ofsted and is she satisfied that it is reassured that it will be able to inspect these illegal schools—these, in my view, very high-risk schools? Is Ofsted content?

[Baroness Barran (Con)]

I am obviously cautious about speaking on behalf of Ofsted, but we have worked closely with it in developing this legislation. My understanding is that it is content, but I would not want to speak on its behalf, as it is an independent body.

[Lord Storey (LD)]

That is a very fair answer but between Committee and Report, will the Minister just make sure that Ofsted is completely content and there are no further loopholes?

[Baroness Barran (Con)]

I would be delighted to do that.

I was talking about how institutions might be operating separately but effectively as one institution. The evidence Ofsted might use to establish that could relate to individuals acting in concert or other evidence of links between the activities, such as the same pupils being educated on different premises. Clause 63 is intended to enhance Ofsted’s powers of inspection in these circumstances. This could include the investigation of so-called “tapestry schools”, with which the noble Lord is rightly concerned. In brief, we believe that those loopholes are closed.

As I explained, we do not believe it appropriate to regulate part-time settings until we have considered the response to the call for evidence on unregistered alternative provision. However, as we have discussed at length, parents have a duty to ensure that their children who are of compulsory school age receive a suitable full-time education. As we know from our earlier debates, local authorities can check this, and where a parent cannot demonstrate that the settings a child attends provide a suitable education, a school attendance order could of course be issued. A parent who sends their child to a different setting that provides only a narrow religious education with no secular education each weekday is very unlikely to be ensuring that their child receives a suitable full-time education, which I think is the point the noble Lord is rightly concerned about. I would be delighted to meet with the noble Baroness and the noble Lord to work through some of these examples in detail to assure them that we are meeting the spirit of their amendments.

Amendment 154 from the noble Baronesses, Lady Chapman, would remove the charitable status of independent educational institutions. When the noble Baroness talked about a change of tone, I thought for a minute that we were going to go to a certain place, but I thank her for the very measured way in which she made her case.

Independent schools that are charities are already obliged to show public benefit, as the noble Baroness acknowledged. She questioned the strength of that, but we are concerned that we should avoid piecemeal reform of charity law, aimed at only one group of charities. The amendment risks creating pressure to extend the removal of charitable status to other sectors. All charities must exist for public benefit, but they are not required to serve the whole public. It is not clear why this principle should change for one group, namely independent schools, and not for other charities.

As my noble friend Lord Lexden explained better than I can and with much greater experience, 85% of independent school council members are already involved in cross-sector working. I have met with a number of schools that are in different partnerships. I think there is a real sense of mutual benefit for the private schools and state-funded schools working together. I know that the noble Baroness and the Government will not agree on this point, but we see independent schools as an asset in our school system. Our responsibility is to make sure they fulfil their charitable purpose and that we use that asset to maximum benefit.

Finally, on Amendment 171G, also from the noble Baroness, Lady Chapman, schools are already under a statutory duty to act in accordance with the arrangements set out by local safeguarding partners. The noble Baroness will remember the recommendations made in Sir Alan Wood’s report following the review of multi-agency safeguarding arrangements. The Government legislated in the Children and Social Work Act 2017 to remove the requirement for local authorities to establish local safeguarding children’s boards. The 2004 Children Act was then amended by the 2017 Act to include provisions relating to those three safeguarding partners—the local authority, police and health—including a duty to make arrangements for them and any appropriate relevant agencies to work together to deliver their safeguarding functions. So there is some history here that we need to remember and take into consideration. The noble Baroness is absolutely right to point out that the independent review included a recommendation to make schools a statutory safeguarding partner. It is something that needs proper consideration and to which we will respond in our implementation strategy later this year.

I therefore ask my noble friend Lord Lucas to withdraw his Amendment 146A and I ask other noble Lords not to move the amendments in their names.

[Lord Lucas (Con)]

My Lords, I am grateful to my noble friend for the answer she gave on my amendment. I had a lot of sympathy for Amendment 149, in the name of the noble Lord, Lord Storey. If we are to require home educators to provide a suitable education, we should make the same requirement of local authorities. What is important is that all children get a suitable education, and we should not accept backsliding by the state on that.

As the noble Baroness, Lady Chapman, would expect, as editor of the Good Schools Guide and a product of Eton, I do not have any sympathy for her amendment. It just seems self-defeating. If you take away the charitable exemption so that independent schools start paying rates, they will do that much less charitable work. That charitable benefit goes straight through to charitable work; the sufferers will be the people currently benefiting from the charity. It will all come back to the state because, although the local authorities may get some additional money from business rates, the state will find itself educating a lot more pupils who are currently being educated elsewhere, not at its expense. The same applies to VAT, but in spades. It appears merely to be an unsatisfactory solution to a long-running niggle. This Government’s approach to try to get the two sectors working together, integrated and benefiting each other, so that they become part of a unified system in rather the way that the health service works with private providers, seems a much better idea. I beg leave to withdraw the amendment.

Amendment 146A withdrawn.

Amendments 146B and 147 not moved.

Clause 56 agreed.

Clause 57 agreed.

Amendment 148

Moved by

[Baroness Barran]

148: After Clause 57, insert the following new Clause—
“Education and childcare behaviour orders(1) The Education and Skills Act 2008 is amended as set out in subsections (2) and (3).(2) In section 96 (unregistered independent educational institutions: offence), at the end insert—“(5) Schedule A1 makes provision enabling a court to make an education and childcare behaviour order where a person is convicted of an offence under this section.”(3) Before Schedule 1 insert—“Schedule A1Education and childcare behaviour ordersMaking an education and childcare behaviour order
1 (1) Where a person (the “defendant”) is convicted of an offence under section 96 (conducting an unregistered independent educational institution) after the coming into force of this Schedule, the prosecution may apply for an education and childcare behaviour order.(2) On an application under sub-paragraph (1), the court may make an education and childcare behaviour order if it thinks it is appropriate to do so for the purpose of protecting children from the risk of harm arising from the defendant conducting an unregistered independent educational institution or otherwise providing children with education, childcare, instruction or supervision. (3) An education and childcare behaviour order is an order which, for the purpose mentioned in sub-paragraph (2)—(a) requires the defendant to do anything specified in the order, or(b) prohibits the defendant from doing anything specified in the order.(4) The court may make an education and childcare behaviour order in respect of the defendant only if it is made in addition to—(a) a sentence imposed in respect of the offence under section 96, or(b) an order discharging the offender conditionally.(5) If, following an application by the prosecution for an education and childcare behaviour order, the court decides not to make such an order, it must state in open court its reasons for that decision.Duration of education and childcare behaviour order
2 (1) An education and childcare behaviour order takes effect on the day on which it is made.(2) An education and childcare behaviour order must specify the period for which it has effect, which must be a fixed period of at least six months and not more than three years.(3) Where a court makes an education and childcare behaviour order in respect of a defendant who is already subject to such an order, the earlier order ceases to have effect.Application for variation or discharge of education and childcare behaviour order
3 (1) The defendant may apply to the appropriate court for an order varying or discharging an education and childcare behaviour order.(2) On an application under this paragraph, the court may by order vary or discharge the education and childcare behaviour order.(3) A defendant may not make an application under this paragraph—(a) before the end of the period of three months beginning with the day on which the order was made, or(b) before the end of the period of three months beginning with the day on which any previous application under this paragraph was refused.(4) In this paragraph, the “appropriate court” means—(a) the court that made the order, or(b) a magistrates’ court for the area in which the defendant lives.Offence of breaching education and childcare behaviour order
4 (1) A person who breaches an education and childcare behaviour order is guilty of an offence.(2) A person guilty of an offence under this paragraph is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or to a fine (or to both).(3) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, for “51 weeks” in sub-paragraph (2), substitute “six months”.(4) Where a person is convicted of an offence under this paragraph, it is not open to the court by or before which the person is convicted to make, in respect of the offence, an order for conditional discharge.”(4) In section 379 of the Sentencing Act 2020, in the table in subsection (1), after the entry for the Serious Crime Act 2007 insert—

“Education and Skills Act 2008
Schedule A1	education and childcare behaviour order	offence of conducting an unregistered independent education institution”.”

Member's explanatory statement
This amendment would enable a court, after having convicted a person of the offence of operating an unregistered independent educational institution, to make an order requiring or prohibiting certain behaviour by that person, if the court considers it appropriate in order to protect children from a risk of harm. Breach of an order would constitute a further criminal offence.

Amendment 148 agreed.

Clause 58 agreed.

Amendment 149 not moved.

Clause 59 agreed.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part in this debate remotely—at least I hope she is—and I invite her to move Amendment 150.

Clause 60: Failure to meet standards: suspension of registration

Amendment 150

Moved by

[Baroness Brinton]

150: Clause 60, page 66, line 4, leave out from beginning to end of line 42 on page 70
Member's explanatory statement
This is a probing amendment aimed at understanding the protections that are in place for day pupils where a school has already been found not to be safe for boarding pupils.

[Baroness Brinton (LD) [V]]

My Lords, in Part 4, on independent educational institutions, particularly Clause 60, the detail seems to put independent schools on a standards system closer to that of publicly funded schools. As I said at Second Reading, I was struggling to understand the rationale for the provision under Clause 60(2), which says that the Secretary of State needs to be

“satisfied that … standards is or are not being met”

and have

“reasonable cause to believe that … one or more students at the institution will or may be exposed to the risk of harm”.

22:00

On 19 May this year, it was reported that Ofsted had issued an updated version of its December 2021 inspection report on Ampleforth College, which is still rated inadequate on safeguarding and leadership. The Department for Education issued its first warning notice in 2018, so DfE has known that it has been in an unsafe position for four years now. This is the fourth inspection that the school has failed in just over a year, having failed three ISI inspections in the years before that.

I understand why there may be an attempt to clarify the law, but what is delaying the Secretary of State taking action? Do we need this clause for action to happen, or are there other remedies? If the power of decision resides solely with the Secretary of State and they can choose not to act—as has happened at Ampleforth—what is the point?

In Clause 60, new Section 118E proposes the requirement to stop boarding, which is put in place to protect pupils. I am all in favour of that in principle, but thinking it through, in any school that has safeguarding issues so severe that a stop boarding requirement is necessary, surely continuing the school in any form should be in question. Safeguarding must be paramount and the precautionary principle must always be in place.

Let me illustrate that with part of the most recent Ampleforth Ofsted report:

“The arrangements to safeguard pupils, including the most vulnerable … remain ineffective … Most, but not all, pupils say they feel safe. However, pupils are at risk of harm ... Leaders do not accept responsibility readily for the harm experienced by pupils in their care.”

Later on, it says:

“Whilst there are some strengths in the boarding provision, pupils’ overall experiences and progress is inadequate. This is because leaders and staff fail to take appropriate action to protect pupils from serious harm.”

It ends with:

“The school does not meet the national minimum standards for boarding schools relating to child protection, management and development of boarding, staff and supervision, and keeping children safe in education.”

I raise this because the new section separates out the boarding issue. At one stage last year, Ampleforth was told it could take no new pupils, but boarding was not stopped, although for some years now, safeguarding has remained a problem at this school. How certain can the Secretary of State be that children will be safe during a period leading up to the suspension of boarding, if only boarding is suspended but day teaching continues? If this is imposed as an emergency action and boarding is ceased suddenly at a large school, there is no mention here of the role of or assistance to the school’s local authority designated officer and their team, as well as children’s services more widely, who are likely to have to provide immediate support for, say, those pupils whose parents live a long way away or abroad.

Part 4 feels as though this is legislation to fill some gaps to ensure that safeguarding at independent schools is properly carried out. Reading reports from the Independent Inquiry into Child Sex Abuse on boarding schools is very chilling. It appears some schools have not learned. Does the department believe that it will now have the tools needed to ensure that independent schools are judged by the same standards as publicly funded ones? After all, the priority must be the safety and education of the children, even if parents are paying for that education and the school is not part of the public system. I look forward to the Minister’s response.

One of the problems at all schools, day and boarding, has been how teachers and other staff are received when they report suspicions about a pupil being abused, whether in school, at home or elsewhere. A duty to report suspicions, also known as mandatory reporting, where a teacher or other staff member reports their suspicions to an authorised and designated person, has transformed school safeguarding in other countries. This is what my second amendment, Amendment 171Z, seeks to achieve through a duty to report child sex abuse. Some form of mandatory reporting is present in 81.8% of developed nations, including 86.4% of nations in Europe, and in 78.6% of developing nations.

Professor Mathews, an academic expert on mandatory reporting from Australia, was a witness to IICSA when it was examining mandatory reporting in April 2019, and he said:

“In the scores of countries that have enacted mandatory reporting legislation for child sexual abuse, none, to my knowledge, have reversed it. Many of those jurisdictions have conducted subsequent government inquiries, looking at whether it is still justified as public policy, including on economic grounds, and they’ve concluded that yes, it is.”

The impact of mandatory reporting laws in Australia—which have been in place for years; in some states, for over 20—means that there is now a substantial amount of academic research. This has shown that, since mandatory reporting was introduced in New South Wales in 1987, referrals from teachers rose, and there was also a decrease in public referrals, because the public knew that teachers and others in their position—those seeing children—were going to be dealing with it. Teachers became confident about using the system and detected some form of abuse in 67% of cases. Of all child sexual abuse cases referred to children’s services, 24% came from teachers.

The problem with the law in England at the moment is that it is all “should” not “must”—and that has not changed the culture. Once in law, it is embedded in teacher and other staff training, management systems, development and training sessions, and Ofsted’s reporting. The IICSA reports on child sex abuse in schools—especially in schools where it has happened for years, decades even—make for totally harrowing reading. I have talked to survivors of child sex abuse at boarding schools, and they all say, “I never want it to happen to anyone else”—and yet things do not change.

Personally, I would like mandatory reporting in all registered activities that children take part in, which is what happens in most countries that have mandatory reporting, but I was told it was unfortunately outside the scope of this Bill. Frankly, achieving it for schools would be helpful as a good start. I look forward to IICSA’s final report and their comments about whether countries in the UK should adopt mandatory reporting. I beg to move.

[Lord Lucas (Con)]

My Lords, it seems delightful that the noble Baroness, Lady Brinton, who, with the rest of us, objected to the Henry VIII powers in the earlier parts of the Bill, should be asking for Henry VIII to return to deal with the Abbot of Ampleforth, who is the seat of the schools problems when it comes to safeguarding.

This is the bit of the Bill that I would very much like to listen to the Government’s rationale behind. I also hope that they will consider the other amendment of the noble Baroness, Lady Brinton—if not now, at least in terms of thinking through what happens when IICSA finally reports. As we have seen in this House with the Valuing Everyone training, when everyone knows what they must do if they see something wrong, wrong happens much less often.

[Baroness Grey-Thompson (CB)]

My Lords, I have added my name to Amendment 171Z on mandatory reporting. This is an area I am very interested in, having started my career in a sports setting, not least because I have a Private Member’s Bill in the queuing system that seeks to address the issue. Having the chance to debate this as part of the Schools Bill was an opportunity not to be missed, and perhaps is the first step in addressing this serious issue.

I thank Tom Perry from Mandate Now for his support on this issue over the years and for his advice on what is required in various settings. If the Government were minded to accept this amendment, it would send out a strong message that they are listening and have an interest in protecting children and young people. I and many others having been debating this for a long time and, over the years, we have been given many reasons why this is not possible to bring in: the cost; that it puts people in a difficult situation when having to report; and that there are other mechanisms which can be used. None of these seems a particularly adequate reason. I have also been told that, if mandatory reporting comes in, the number of cases will rise—well, of course, they will. However, we know from other jurisdictions that those cases stabilise over time.

The fact that this legislation exists in 86% of Europe may not be enough to convince some that it is necessary, but this is also about increasing knowledge and understanding. Schools are a place that have reasonable contact with young people. I am very interested in hearing the Minister’s response. I do not want to pre-empt it, but I suspect that it might include her saying that it will be difficult to do this in a school setting without doing it in a wider setting. If that is the case, I look forward to support of my Private Member’s Bill when we get the chance to debate it.

[Baroness Wilcox of Newport (Lab)]

My Lords, these amendments give us another opportunity to talk about the important issue of safeguarding. It is an issue that has fallen between the cracks of the ambiguity we have dissected and discovered in our debates on most clauses of this Bill. The fact that there have been so many probing amendments in Committee speaks to the level of uncertainty in the House about dealing with such a vaguely worded Bill bereft of ideas and vision for making a better educational opportunity possible for all children and young people.

I acknowledge that the DfE has published an updated version of the statutory safeguarding and child protection guidance for schools in England, Keeping Children Safe in Education, which will be implemented this September. That contains important new guidance, not least the new paragraph setting out that

“children may not feel ready or know how to tell someone that they are being abused”.

It also includes the recommendation that

“governors and trustees receive appropriate safeguarding and child protection … training at induction”,

and then at regular intervals afterwards.

Nevertheless, there is always more that could be done. An old headmaster of mine used to say, “The biggest room in the world is the room for improvement”—I seem to remember he had it printed on a T-shirt. In a previous debate, my noble friend Lady Chapman mentioned the MacAlister review, which proposed that schools be made a statutory partner. The review said:

“In too many places the contribution and voice of education is missing from partnership arrangements, and so schools should be included as a statutory safeguarding partner”,


which we have also proposed as an amendment in another group. Would it be worth the Minister giving an update on the Government’s progress on working through the review’s recommendations, and is becoming a statutory partner something that the DfE is likely to accept?

[Baroness Penn (Con)]

My Lords, turning first to Amendment 150, I hope I can clarify for the noble Baroness, Lady Brinton, a stop boarding requirement is discretionary but can only be supplemental to any suspension of registration which may be imposed in relation to an independent educational setting. Day students are therefore protected from a risk of harm in the first instance by the suspension of the institution’s registration. The intention of these powers together is that all students in an independent educational institution, both day and boarding where applicable, can be protected more effectively from serious risk from harm.

The noble Baroness asked me a number of specific other questions, which I will do my best to write to her on.

On Amendment 171Z, in the names of the noble Baronesses, Lady Brinton and Lady Grey-Thompson, schools and colleges are already under legal duties to exercise their functions to safeguard and promote the welfare of children. This includes having regard to Keeping Children Safe in Education, statutory guidance which is clear on the role all staff have to play. Children and young people who attend a school or college are afforded protection through these provisions. In all cases where concerns about the welfare of children are identified, Ofsted will pass the information on to the relevant police or local authority to take appropriate action to ensure the safety of children cared for at the registered provider.

As we set out in March 2018, in response to the reporting and acting on child abuse consultation, there was no clear evidence to show that introducing a mandatory reporting duty would help keep children safe, and therefore the case was not made for a mandatory reporting duty. We are keeping this under review, and as noble Lords have referenced, we are awaiting the final report of the Independent Inquiry into Child Sexual Abuse, which is expected this autumn.

The noble Baroness, Lady Wilcox, raised the MacAlister review. I believe we have addressed that in previous groups. The Government will be publishing an implementation plan by the end of year, to consider all of those recommendations.

With that, I hope the noble Baroness, Lady Brinton, will withdraw her amendment.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely, and I invite her to respond now.

[Baroness Brinton (LD) [V]]

My Lords, I too thank Tom Perry and Mandate Now, who have been advocating for mandatory reporting for many years, all the survivors of abuse at schools who have been in contact with me, and indeed some of the teachers who have written to me about how difficult it was for them after they reported abuse at their school.

The noble Lord, Lord Lucas, made a slightly jokey but important point about the Secretary of State’s powers, but the difference with Amendment 171Z is that those powers are detailed in the Bill. It is not giving a blind, blank cheque to the Secretary of State to produce regulations that Parliament cannot then comment on. I do not know whether others have better suggestions about who should take those powers. Clearly, somebody has to be able to do it for independent schools. Under the earlier parts of the Bill, it seems the Secretary of State is doing everything else as well. If we can get changes, that may work.

22:15

I thank the noble Baroness, Lady Grey-Thompson, for supporting my amendment. She made a strong case for widening mandatory reporting beyond schools, and I look forward to supporting her in her Private Member’s Bill. The noble Baroness, Lady Wilcox, rightly commented on the new safeguarding guidance, and I am grateful that she also thinks more needs to be done.

I thank the Minister for her response and look forward to receiving her letter detailing specific answers to the questions I raised. However, having regard to keeping children safe is not enough. One of the reasons it is not enough, I am afraid, is that child sex abuse is still happening and not being reported, even when teachers and other staff have suspicions. It is also not good enough just to rely on Ofsted to report when it inspects, though that is vital. It needs to happen as soon as any suspicion is raised.

The hour is late, so I plan to withdraw my amendment, but I will consider bringing it back on Report following receipt of the letter from the Minister. In the meantime, I beg leave to withdraw my amendment.

Amendment 150 withdrawn.

Clause 60 agreed.

Clauses 61 and 62 agreed.

Schedule 5: Independent educational institutions: material changes to registered details

Amendment 151

Moved by

[Baroness Barran]

151: Schedule 5, page 103, line 40, leave out ““refusal” substitute “decision not”” and insert ““104(1) (refusal” substitute “104 (decision not””
Member’s explanatory statement
This amendment corrects a missed consequential amendment.

Amendment 151 agreed.

Schedule 5, as amended, agreed.

Clause 63: Powers of entry and investigation etc

Amendment 152 not moved.

Amendment 153

Moved by

[Baroness Barran]

153: Clause 63, page 74, line 33, at end insert—
“(g) paragraph 4 of Schedule A1 (breach of education and childcare behaviour order).”Member’s explanatory statement
This amendment adds the offence of breaching an education and childcare behaviour order to the list of offences in clause 63, meaning that the new powers of entry and investigation in the Bill would be exercisable in respect of a suspected offence under this Schedule.

Amendment 153 agreed.

Clause 63, as amended, agreed.

Clause 64 agreed.

Amendment 154 not moved.

Clause 65: Teacher misconduct

Amendment 155

Moved by

[Baroness Barran]

155: Clause 65, page 78, line 14, at end insert “that is not a school”
Member’s explanatory statement
This is a drafting clarification to make it clear that the reference to independent educational institutions inserted into s.141A(1) (teachers to whom the misconduct provisions apply) only catches such institutions that are not schools. Schools are already covered by s.141A(1)(a), so this amendment avoids an overlap between existing paragraph (a) and new paragraph (bb).

Amendment 155 agreed.

Clause 65, as amended, agreed.

House resumed.

House adjourned at 10.18 pm.