Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012
Baroness Hughes of Stretford Excerpts(12 years, 8 months ago)
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Baroness Walmsley
My Lords, I very much support this statutory instrument. I am very excited about the potential of these new academies. Whether the new providers coming in to the system will be able to provide high-quality, more specialised alternative provision for young people remains to be seen, but it is likely that they will.
The 16-19 academies, particularly those that focus on science and technology, engineering and maths, are getting employers involved. Big companies are getting very involved in the applications to new academies, and that is a very good thing, especially to help them take in young people doing apprenticeships based in these 16-19 academies and working closely with the employer. That is a good thing.
I notice from the Explanatory Memorandum that there is no guidance specific to the amendments, given that they are consequential, but it comments that guidance on how to apply to become an alternative provision free school for existing non-maintained new providers is available on the DfE website. I gave the Minister notice today as we came into the Committee that I would ask him to look at the guidelines to make sure that they are not too tight and do not thereby exclude organisations that we really need in order to provide for certain special kinds of children—for example, the Red Balloon organisation, which provides for children who have been severely bullied and are self-excluding from school. These are young people who do not necessarily have a special educational need or a physical disability. Very often they are extremely bright but cannot go to school because they have been severely bullied. The guidance as it stands on applications to become a free school excludes organisations such as that, and possibly others that I do not know about. Will the Minister look at the guidance to see whether it can be a little more flexible so as not to exclude such worthwhile organisations?
Baroness Hughes of Stretford
My Lords, as the Minister said, the regulations on alternative provision academies are consequential and therefore rather technical and limited. He described what they are seeking to do and I have no issues with either of those aspects. However, I would be grateful if the Minister took the opportunity to clarify three issues on the principle of alternative provision academies with regard to the implementation. I have questions in three areas. First, how will alternative provision academies work in practice in a local area? Secondly, what will the funding level be? Thirdly, how will accountability be applied, given that it cannot be applied in the same way as a mainstream school or academy?
On the first point, which at this stage is the most important, how will an APA work in practice in a local area? As the Minister said, currently the local authority ensures that there is sufficient provision in an alternative setting, a pupil referral unit, and that there are sufficient places available for the local schools in that area to place a child when a child needs placement outside mainstream education, whether because of illness, exclusion, behavioural problems or whatever. The pupil referral unit is the resource for all the other schools locally and takes referrals from those schools; by definition, it does not have a normal admission process. The objective, one hopes, is to return the child to a mainstream school, either the one that they left or another one, as soon as possible.
If a pupil referral unit becomes an alternative provision academy, it will, as the Minister said, have all the freedoms and independence that other academies have in law. I see the argument that those freedoms are necessary to raise standards in alternative provision, and it is certainly the case that in some of our alternative provision those standards are far too low, even taking into account the difficult circumstances of some of the children. However, if an alternative provision setting has all those freedoms, how will that work in practice? Who, for example, will commission the places in an alternative provision academy? Will it be other mainstream schools? Will it be the local authority? Will the APAs themselves be able to determine the level of provision—that is, the number of places—that they will provide in that academy? If so, will that necessarily match the level of need and demand from the other local schools? Under this new regime what obligation will the alternative provision academy have to accept children referred by other schools? Will they, as now, be obliged to accept them?
Presumably the APAs—independent establishments—will be funded according to the number of pupils they have. I am concerned that as independent units, dependent on that funding, there may be the development of a perverse incentive for APAs to hold on to pupils because that is where their funding is coming from, rather than as now—where there is no such funding relationship—returning those children as quickly as possible to their mainstream education. How will a pupil actually get out of an APA, and who will be responsible for ensuring that the decisions taken about that child—whether they stay in the APA, for how long, when they leave and where they go—are in that child’s best interests? What responsibility will the referring school have for monitoring that child’s progress, looking to the eventual outcome for that child and whether it is the best that could be? What responsibility will the local authority have, if any, for monitoring the progress of the children collectively in the APAs in their areas?
All of this, I am afraid, is still very unclear to me. I may have missed something, but it seems to me, and I am not against the principle, that we are changing very profoundly the dynamics of the relationship between alternative provision and mainstream schools, whether they are schools or academies. In making the alternative provision an academy, with all of those freedoms, it is not clear where the reciprocity will lie and who will be responsible for the children.
Briefly, I have two other points. One concerns funding. I think the Government have said that the funding will follow pupils into APAs and that it will be set at a high need level. This level has yet to be announced. Can the Minister say when this will be announced and how the level of funding will compare to that in mainstream schools?
The third point is also important. It is clear to me that the usual accountability measures for mainstream schools cannot apply in quite the same way here. How will APAs be held accountable for their children’s progress or lack of it? Are the Government considering, for example, a payment-by-results model, as they are within the criminal justice system? By what yardstick will children’s progress be measured? I agree with the Minister’s comment that children’s low levels of attainment in some alternative provision is lamentably low and we should not accept it. Equally, these children are often facing multiple problems, and they need significant amounts of help in overcoming the barriers to learning that those problems engender. I am not clear about how being in an independent academy will help children to access the level and quality of extra support they need, much of it from local authority children’s services and health services. In becoming an independent academy, the relationship between that provision and the local authority and the other children’s services will be changed quite fundamentally and will, necessarily, be more distant.
Those are my three concerns. I know there are a lot of questions there, and if the Minister cannot deal with all of them in detail, I am quite happy for him to write to me. The issues which I raised in the first group of questions about the new relationship, how that will work locally and who will be responsible for the child, are particularly important. If he cannot give me answers today, then perhaps later.
Lord Hill of Oareford
My Lords, I am grateful for those comments and for the support expressed for the development of alternative provision academies. I can tell my noble friend Lady Walmsley that in the first round we had a number of proposals for alternative provision free schools. I hope that they will be able to open this September and that, in the round for 2013 that closed at the end of February, there will be more application for alternative provision free schools. There is a lot of enthusiasm for them.
My noble friend is right that there are questions about this. In some ways, they link to the points raised by the noble Baroness, Lady Hughes of Stretford, about the referral mechanism. Unlike with mainstream schools where, as it were, parental choice is the determinant of the placement, it is still the case with alternative provision free schools that the local authority or a school is the referral mechanism. That leads to some questions that we need to work through about when some providers want to set up in areas where a local authority may be less keen on a more varied landscape. If the local authority is not prepared to make that referral, there are issues for us to think through. I know those issues are very much in my noble friend’s mind.
Let me do my best on the thrust of the points raised by the noble Baroness, Lady Hughes. If there are some things that I do not pick up, I will follow them up. On the accountability of alternative provision academies to the local community, their funding agreements will require them to be at the heart of their local community. They will be accountable through their performance, which will be published in the same way as other schools. They will be inspected by Ofsted like other academies. There are a number of accountability mechanisms. They are obviously accountable through the funding agreement that they sign with the Secretary of State.
On funding, currently they will be funded through interim arrangements. The noble Baroness referred to an earlier announcement that we made, saying that the funding would come out of what is called the higher needs block. The principle of that, as she knows from other areas of academy funding, is to have equivalence with the funding that would go to a PRU. That is what we want to replicate. We want an AP academy to get the same funding that it would have received as a maintained PRU. We have put interim arrangements in place to make sure that that happens. The longer-term answer to the noble Baroness’s question will come out of our response—which we will publish before too long—to the consultation, which has ended, on our broader reforms to the funding system. As part of that, we will set out our longer-term thoughts on how funding for alternative provision academies and other parts of what one might call higher needs funding—such as special needs funding—will be dealt with going forward. I hope that we will be able to make that clear before too long.
I was asked another question on the role of the local authority. As the noble Baroness said, local authorities will retain their Section 19 duties to arrange suitable full-time education. That relationship with a converted PRU would obviously change a bit over time in the sense that the local authority role would move from being the direct provider to a commissioner of services, along the lines that I think were set out in the schools White Paper of 2005.
An important contextual point in all this is that we all want as few children as possible to go into alternative provision, and the earlier we can pick them up and put support in place, the fewer will end up doing so. Therefore, as part of the broader context, we are running trials based on the very good work that went on in Cambridgeshire to give schools responsibility, including budgetary responsibility, for an excluded child. That gives a school an added incentive to make sure that the child is looked after as well as possible and reintegrated as quickly as possible, if that is the right course of action.
As I have already touched on, pupils will be referred to AP academies in the same way as they currently are to PRUs. Under the new system, we would expect schools to work closely with professionals to ensure that pupils get the provision which best meets their needs. We do not think that we should be more prescriptive than that at this point.
The noble Baroness, Lady Hughes, asked me whether AP academies will be obliged to accept a pupil. Again, the referral mechanism will be the same as now, so the success of an AP academy will depend on its ability to meet the needs of its local community. If a local authority or other commissioner does not think that the alternative provision academy is doing a good job, it will not want to refer pupils to it, and I think that that will act as a discipline for the schools to make sure that the children are properly looked after. It will therefore be in the interests of AP academies to have strong links with the local authority and with local schools.
I hope that I have dealt with the main points. I shall obviously read the noble Baroness’s comments and, if I can add anything further, I shall write to her. With that, I hope that we can accept the order.
Baroness Hughes of Stretford
Perhaps I may come back briefly on the point that the Minister has just made. My question about referrals hinges not on whether the changed status of the alternative provision organisation as an academy means that if a local authority is not happy it might not want to make a referral but, rather, whether the changed status—the independent status as an academy—means that an APA will be able to refuse to take a referral, unlike the current situation with PRUs. Therefore, my question was whether the change in status would change the power of the APA.
While I am on my feet, I wish to make two other quick points. The Minister mentioned that the pilots would look at whether the referring schools could have continuing budget responsibility for a child and continuing responsibility for his or her progression through school, and I know that the Government are looking at that. However, does the Minister envisage that with APAs the referring school will continue to have responsibility for overseeing the progress of the child and for holding the ring in bringing people together to look at the issues and at whether the child is making progress? If the referring school does not do that, who will? It does not seem to be right for a child simply to be placed in an APA and for the APA to be the sole arbiter of what happens to that child in future. I think that, as is currently the case with pupil referral units, somebody outside the APA should monitor the situation, call case conferences if necessary and make sure that decisions are taken in the best interests of the child.
Lord Hill of Oareford
My Lords, again, I shall give short answers and will follow up further in writing. On the pilots, my understanding is that, alongside continuing budget responsibility, APAs will have responsibility for the child’s progress, and I think that they would perform the kind of role that the noble Baroness is contemplating.
On her first question—whether the greater independence of an alternative provision academy would mean that it could refuse pupils; and I am sorry if I got it the other way around—she will know that currently PRUs are able to refuse children if those units feel that the provision they offer is unsuitable, and they can suggest another provider that might better meet the children’s needs. We think that AP academies would continue to play a similar role, and that in general they would have an interest in taking a pupil for the right reasons—and for financial reasons, if one wants to think of it that way. We would envisage them advising local authorities and schools on the best way to choose the right provision for an individual child. That is my “off the top of the head” answer, but if I can add anything further, I certainly will. I hope that we can support the order.
Children Act 2004 Information Database (England) (Revocation) Regulations 2012
Baroness Hughes of Stretford Excerpts(12 years, 8 months ago)
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Baroness Walmsley
My Lords, I very much support the abolition of ContactPoint. Setting up a monumental database to cover every child in the country was a terrible waste of money. It had a danger of setting up a tick-box mentality, and there were safeguarding issues because it was quite widely accessible. We had to set up all kinds of safeguards for the people who had access to it. At least some of the savings should be spent on better training for professionals in the children’s workforce in how to work effectively with other professionals in the children’s workforce. That would be a far better way to spend the money, so I very much support the regulations.
Baroness Hughes of Stretford
Briefly, my Lords, as the Minister said, this is a very limited set of regulations in its intent. Given that ContactPoint has gone, I will not say anything about those regulations. I just put a couple of points on record in respect of the wider context that the Minister outlined.
First, as someone involved in the implementation of ContactPoint—sweating blood over it would not be too excessive a statement—it was never intended that it of itself could protect children. However, the recommendations from equally august people as Eileen Munro that we ought to try it came about because every inquiry, from Maria Colwell through to Jasmine Beckford, Victoria Climbié and even, to some extent, Baby Peter, identified to a lesser or greater extent the repeated failure, despite all those inquiries over 30 or 40 years, of professionals to share information properly.
One reason for that is that the local solutions that the Government are now asking local areas to put in place were always variable at best and, in many instances, were totally inadequate. They ran into the buffers of particular agencies—health is an example in many places—which felt that the law did not allow them to share information. It needs decisive government action to make it clear, as we tried to do, that those barriers do not exist. I do not mean this unkindly, but many professionals in local areas take a default position of, “We cannot share information”. That is what has happened and many children have lost their lives because of it.
There is a second, more practical reason, which ContactPoint, cumbersome though it might have been, was designed to address. For example, as a social worker, a referral from a school expressing concern about a child might land on your desk. If it is completely cold, your only contacts at that point are the school and the address of the child and their parents. You do not know, and it is often very difficult to find out, who else has been involved with or might have had concerns about that child in the recent past. It is very hard to get that information and put it together. You cannot call a case conference because you do not know who to call to it.
I must put on record that ContactPoint was never a database of information about children, as the noble Baroness, Lady Walmsley, maintained; it was a database of professionals. It was simply a list of the people who were connected to a child, such as their school, their GP and any other professional who had provided a service. If you, as a professional, got a referral about a concern, you could look on the database not for the details of the child—their background, history or circumstances—but for a list of professionals who had been involved in one way or another. That does not transgress that child’s human rights or reveal any information about that child. You would have to go to the professionals and ask for the information in order to get it. The database would never have given it to you.
Therefore, I do not think that local solutions will cut it. We have tried them over decades and they have not worked. Facilitation from government is needed. While I am very much in favour of building up professionals’ capacity to use their judgment more effectively, I disagree profoundly with Eileen Munro’s belief that that will simply happen without central government drive, commitment and clarification—not necessarily prescription. I simply say to the Minister: be very wary. I am not at all sure that what is being put in place instead of ContactPoint will prevent the death of another child through the failure of professionals to share information. We need a stronger system to ensure that that does not happen. Much has been tried over the years and nothing has yet worked. I am sorry that ContactPoint did not have a chance to prove whether it could have been better.
Lord Hill of Oareford
My Lords, the noble Baroness, Lady Hughes of Stretford, talked about sweating blood, and I can completely believe that she did. One starts with the simple thought that it must be possible with the use of technology in the modern age to share information more successfully than has been possible before, and there must be a rational way of delivering that through a national system. My own limited experience is that you say something in the department that sounds quite simple and before you blink you have procurement frameworks, complicated systems and national everything, and something that you thought was quite modest and rational turns into a huge thing with a life all of its own. Therefore, I understand how trying to implement it must have felt.
I also know, and it was clear from the noble Baroness’s remarks, how strongly she feels about the subject and how much she knows about it. She says, rightly, that our challenge is to try to make a more local approach work. With regard to her specific point, which I think was one of the issues that the noble Lord, Lord Laming, originally raised, the misconceptions about data protection, either genuine or used as a pretext for a default position of doing nothing, have been a problem. In the revised guidance that we will be issuing later this year, as I mentioned, we will need to make that clear and respond to the point that misconceptions about data protection cannot be used as an excuse not to share information. Therefore, that is one way of dealing with the matter.
There are also other ways. One would not want to rule out the intelligent use of IT in certain settings in order to share information at an appropriate level. The example that I referred to—the work that we are doing with the Department of Health on sharing information regarding children who might be moved around from one A&E to another by their parents or carers—may be another way in which we can deal with that.
On the point raised by my noble friend Lady Walmsley regarding the money that we are saving, we have spent about £244 million on ContactPoint. We are committed to funding high-quality training—for example, with our programme of social work reform, building on the work of the social work task force that the previous Government introduced.
I accept the challenge that the noble Baroness, Lady Hughes, set out. We are all committed to trying to ensure that it works. With that, on the narrow point on the revocation, I hope that we are able to accept these regulations.
Schools: Dyslexia
Baroness Hughes of Stretford Excerpts(12 years, 8 months ago)
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Lord Hill of Oareford
I agree with my noble friend that this is an important issue that goes back a long way, but I have to disagree with him that no Governments have ever done anything. Recent figures that I have seen show that the improvement in educational attainment between 2006 and 2011 for children with specific learning difficulties, while much lower than we would like, doubled over that five-year period. Therefore, I do not think it is fair to say that previous Governments have not done anything. It is also fair to say that this Government share the determination of the previous Government to try to do whatever we can to address this issue.
Baroness Hughes of Stretford
My Lords, many local authorities, as the Minister will know, have also taken the initiative and promoted dyslexia specialist primary schools in their areas as a base for teacher training and to disseminate best practice in other schools. But the Government are now forcing hundreds of primary schools to become academies, independent of the local authority and separate from other local schools. Does the Minister really think that that is compatible with the kind of local co-operation that we have all agreed here today is necessary to improve provision for young children with dyslexia and other special educational needs?
Lord Hill of Oareford
I certainly agree with that last point about the need for co-operation. Where I probably take issue with the noble Baroness is around her premise that academies working together in chains are not able to work together and share in a collegiate way just as all other schools have been doing for a long time. We are seeing that kind of working together emerging through academy chains and clusters and through teaching schools. That is the way forward.
Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012
Baroness Hughes of Stretford Excerpts(12 years, 10 months ago)
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Baroness Hughes of Stretford
Like other colleagues, I thank the Minister for his statement and for sending me a copy of the letter from Sarah Teather with some of the Green Paper responses. I very much welcome in principle the idea of extending direct payments to families, children and young people and the potential for empowerment, choice and control that that gives.
I have a number of overarching points to raise with the Minister as well as in relation to the detail of how the instrument is worded. First, will the Minister say something about when the draft guidance to the pathfinder authorities will be published? The devil really is in the detail of how this scheme will be implemented. Had we had that guidance today, perhaps some of our questions might have been answered. Going forward, I think that the guidance will be critical.
Secondly, can the Minister say a little more about how he sees this pilot fitting into the wider scheme of personal budgets for families of disabled children and those with special educational needs, to which he, and others, referred? As we know, the Labour Government began the pilots for families with disabled children and the current Government announced in September last year the 20 pathfinders to which we have referred today to test the Green Paper proposals, including personal budgets and testing the healthcare element particularly of direct payments through the personal healthcare budget pilots. How far does the Minister see the pilots that we are discussing today, in those pathfinder sites, being integrated with the pilots already going on in relation to social care and healthcare budgets? The instrument is framed as if this is something separate, but a family with children with special educational needs will also very often have health needs—they may also have a physical disability. Does he envisage that these will be integrated so that the families themselves will be able to look across the range of services—of social care, health and education? How will that work? It is really very important that with direct payments for educational services, or those that could be purchased from an educational budget, the families themselves should have some flexibility about how the whole range of resources might be available.
Thirdly, the extent to which this achieves the objectives to which the noble Lord, Lord Touhig, referred—a positive impact on families—will depend in part on the availability of alternative providers for the kinds of goods and services that the families might seek. What expectation or requirement do the Government have on local authorities actively to stimulate that market and support emerging providers in the voluntary sector, so that families seeking to use direct payments have real choice and there are options out there for them?
Finally, as an overarching point, as the noble Lords, Lord Low and Lord Rix, have mentioned, there is a real concern about the total quantum of resources available here. Will the total amount of resources be sufficient to fund adequately the direct payments for those families or young people who seek to use them while not compromising the level of services available to other children?
On some specific issues in the instrument, paragraph 3 in Part 2 says that local authorities must consider the request for direct payments and paragraph 13 refers to the decision by the local authority that it is free not to make direct payments after a request by a family or young person. On what bases can the local authority decide not to make a direct payment? If the technical requirements are there and have been adhered to, such as the written consent and so on, what will be the criteria that the local authority has to consider in deciding whether to make a direct payment? This concerns the balance between the powers of the local authority to make those decisions as against the entitlement of families.
Secondly, how extensive or limited will be the ability to use direct payments and what do the Government envisage? Paragraph 10 says that,
“Before making direct payments, a local authority must … agree … the qualifying goods and services”,
to be served by direct payment. What does that mean in practice? Will the local authority have to agree not just the general but the specific service, or the specific piece of kit? Will it have to agree the provider and the cost? If all of that has to be agreed between the young person or the family and the local authority, there is not much flexibility left for anybody to do anything different. So what is the flexibility envisaged in how the direct payments will be operated?
Thirdly, the degree of control given potentially to the local authority in the instrument seems to provide very broad caveats for the local authority not to have to make direct payments. If the local authority feels that direct payments might have “an adverse impact” on other services or if it is not compatible with the efficient use of local authority resources, it can decide not to go along with direct payments. Like the noble Lord, Lord Rix, while one wants to see powers that ensure the value for money and correct use of direct payments, those are very broad caveats that will allow a local authority not to go down the route of offering direct payments.
I say this because, as a Member of Parliament for many years, I had a number of experiences in relation to adult social care in which I felt that local authorities were very specifically not informing people about the potential to have direct payments. They were making it extremely difficult and took a general view that making direct payments available to some people was against the grain in terms of the efficient use of their resources. Looking at the responses to the Green Paper, I see that 19 per cent—which must largely be local authorities—replied that they had concerns that making direct payments to some individuals would in general almost certainly have a negative impact on the efficient use of resources and so on.
In relation to the monitoring review that the local authority is required to undertake—and it is right that it does—it would have been preferable had there been some reference to the local authority undertaking the review alongside the recipient or beneficiary of direct payments. A very top-heavy approach is envisaged in the statutory instrument with all the powers for decision-making resting with the local authorities. It is an interesting contrast to the way in which the Government have approached the balance of power and control between schools and local authorities, for instance. Here, we see the local authority being given all the control.
My fourth, and most important, point is about information, advice and support. It may well be that there will be some parents who are well able to take on the local authority to exercise the potential to use direct payments effectively, but there will be other families who cannot do that on their own. The quality of advice, information and support is very important. I also note that if the payment for advice and support comes from a third-party organisation, it has to come out of the direct payment. I wonder where that will leave families. Is it a payment for any advice and support in addition to that being given for the service? What implications will that have for the total quantum of resources?
Lord Hill of Oareford
My Lords, I am grateful for the broad welcome for this order and for the helpful suggestions that were made. I would never think that the noble Lord, Lord Low, was a wet blanket. The questions that he raises are proper questions in that they are the same questions that in our different ways we have all been grappling with over the past few months. The key issue is how we get the right balance—this is the point made by the noble Baroness, Lady Hughes of Stretford—between wanting to increase choice for individual parents, families, children and young people and wanting to do that in a way, in this most sensitive of areas, that does not undermine the provision for other children. Getting that balance right is what these pilots are intended to address.
The general answer that I have to a large number of the questions that have been raised is that the purpose and point of the pilot is to try to get answers to the questions that noble Lords have raised. We will know the answers to the points about the balance, what will happen in certain circumstances, what it will mean for different providers, how we know that in some cases local authorities might not want to approach this with an open mind and all the rest of it only once we have this pilot. The evaluation will help us to understand that, which is why, as a number of noble Lords, including the noble Lord, Lord Touhig and the noble Baroness, Lady Hughes, made clear, the evaluation is so important and why in the same spirit as we have tried to approach this whole process we will make sure that that evaluation is shared widely.
Some specific points were raised by the noble Lord, Lord Touhig, who I must now think of as the three in one, if that is not inappropriate in the Moses Room. He asked whether we would look at the experience of parents and young people as part of the evaluation, whether we would look at the impact on local authority-commissioned SEN services and how calculations of direct payments are made. When we finalise the details of the evaluation, those are all things that I am certainly happy for officials to look at. We expect interim findings from the valuation in April this year and then September this year, with a final report available in March 2013. That would be before the order needed to be renewed, if indeed it did.
On the point about guidance raised by the noble Baroness, Lady Hughes of Stretford, which was a fair question, officials will share a draft of the advice to pathfinders with the Special Educational Consortium. I will make sure that other noble Lords with an interest will also see it. We will do that in the coming weeks and we would welcome views because we need to get that guidance absolutely right.
Lord Hill of Oareford
Yes, my Lords, there is, and my noble friend raises a good question. It seems that the order allows the local authority to review the decision that is taken. I may need to write generally on the arrangements for the review of decisions. Our view is that we have sufficiently robust arrangements for the purposes of the pilot, so they are in place, but I think I will need to follow up with my noble friend on precisely what they are. However, on the kind of issue that my noble friend spoke about—whether it has worked properly and whether a fair process has been carried out—we certainly think that, again, the evaluation will enable us to see whether the processes that have been put in place are working. If I have more particulars, I will write to my noble friend on that.
Baroness Hughes of Stretford
The wording of the order, as far as I can see, simply says that if the local authority decides to refuse direct payments or in a review to change the current situation—to reduce the funding, or whatever—the beneficiary or the family can ask it to look again. However, after that, there is nothing as detailed on any recourse to any independent authority. Perhaps the Minister could say a little more about that. Can he also answer my question about the criteria on which a local authority can refuse in the first place to decide that a particular family’s request is not going to be acceded to?
Lord Hill of Oareford
Some of the criteria are set out in the order—for instance, paragraphs 6 to 8 on when the local authority is not satisfied that the recipient is suitable and paragraph 11 on the effect on other services. The question that underlines this comes back to this central tension, which the noble Baroness quite rightly raised, between the duties and responsibilities on the local authority to continue to discharge its statutory duties, the budgets and everything that goes with that, and trying to arrive at a situation where there is more flexibility for individuals and their families. Given that the local authority ultimately has the statutory responsibility and the budget, we have to have a system in place whereby the local authority does not find itself exposed either financially or in other ways in a way that it cannot afford or deliver. From that point of view, that is the whole basis of the system that we currently have. We might get to another point—with our SEN Green Paper and further legislative steps—but until then it is within that framework that we have to operate.
The noble Baroness, Lady Hughes, also asked a question about how these pilots integrate more generally into the work that is carrying on with the pathfinders and the work that is going on with health and social budgets. This pilot on direct payments is being undertaken as part of the broader pathfinder programme in 20 areas made up of 31 local authorities and their PCT partners. They are working together—or we hope that they will work together—to test the use of personal budgets including direct payments for health care and special educational provision alongside the development of the new education health and social care plans. The pathfinder programme is managed by a joint working group across the two departments; the whole recruitment phase to select the pathfinders and their support and evaluation teams is also a joint venture. It is probably also fair to say—this is a broad point that links to the noble Baroness’s questions—that the local authorities and others with whom we are working on these pilots are approaching it with an open mind, trying to see whether it is possible to introduce personal budgets and direct payments and to see what it would look like. It is clearly the case, as the noble Baroness very rightly said, that there may be some local authorities and others who do not particularly relish the thought of change, but the ones in the pathfinder, with whom we will be working to test these issues, will, we think, engage with that constructively.
Adoption
Baroness Hughes of Stretford Excerpts(12 years, 11 months ago)
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Lord Hill of Oareford
The noble Lord is exactly right: one wants to adopt a balanced approach to adoption. The fact is that the number of children being adopted has unfortunately been falling. Of around 3,000 children in care under the age of one last year, only 60 were placed in adoption. There are things that we ought to do to redress the balance, but the noble Lord’s underlying point is clearly important.
Baroness Hughes of Stretford
My Lords, the Government’s proposals will remove legal aid entirely from some 35,000 families a year who are in court for one reason or another concerning their children. Are the Government not concerned that without legal representation there will be severe delays in the hearing of these care cases, including children for whom the plan is adoption, adding further to the delay for these children?
Lord Hill of Oareford
My Lords, CAFCASS has an extremely important role to play in giving support through the legal process to the families and the children who are going through this process, and that support through CAFCASS remains in place.
Education and Skills Act 2008
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Lord Hill of Oareford
My Lords, if my noble friend had been able to sit in on some of our extremely lengthy deliberations on the Education Bill, particularly as we ground through Committee in the Moses Room, where all those present were extremely resilient in the hours they put into debating it, he would know that a significant part of the current Education Bill has precisely the sort of measure that he would welcome—giving greater authority to teachers to teach. We all know that orderly environments are environments where children are safer, and environments in which children are safer are those where they can learn better. Therefore, I completely accept the need for an orderly environment. What I do not accept is that there is necessarily an either/or between looking after the interests of children and wanting to make sure that they learn in an orderly environment. It is possible to do both.
Baroness Hughes of Stretford
My Lords, at Third Reading the Minister told us that he estimates about 95 per cent of schools have a school council or some form of consultation process for pupils. That means that, despite the guidance he referred to, for pupils at more than 1,000 schools there is no such forum that we know about. Contrary to the view expressed by the noble Lord, Lord Tebbit, does the Minister agree that engaging with pupils is not only good practice for the schools, but also encourages responsibility and active citizenship among the pupils? Therefore, in addition to the guidance, what do the Government intend to do to ensure that all schools have some appropriate consultation and active participation mechanisms for students?
Lord Hill of Oareford
In all these things, one needs to strike a balance between seeking to move in the direction of involving children and being overly prescriptive in the ways one goes about doing it. We think the balance is about right in terms of the degree of guidance that we give and the way that schools are responding. One of the other developments, which will probably not be welcomed by my noble friend Lord Tebbit, is that the Government have said that they are looking at ways of strengthening the role of the office of the Children's Commissioner, and are thereby looking at making sure that children’s rights as set out under the UN convention would be enforced.
Sure Start
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Lord Hill of Oareford
I do not agree with the last point made by the right reverend Prelate. I hope the figures I was able to announce to the noble Lord, Lord Dubs, demonstrate that local authorities are working extremely hard to spend the money they get through the early intervention grant and maintain the important services delivered through Sure Start children’s centres. Of the 152 local authorities, I think I am right in saying that 119 have announced no change at all to the number of Sure Start children’s centres that they have; of the others a range of measures has been taken. The point of doing away with the ring-fence is to give local authorities greater responsibility and we think that is the right approach.
Baroness Hughes of Stretford
My Lords, for the first time ever we have the prospect, through Sure Start, of a universal integrated service for the under-fives and their parents. It is clear, however, that local authorities are not only closing centres but are cutting their budgets dramatically—11 per cent this year, 21 per cent next year—in response to the Government’s significant cuts in the early intervention grant and the removal of the ring-fence, referred to by the right reverend Prelate. Will the Minister accept that it is the responsibility of Government to ensure that this universal service continues instead of passing the buck to local authorities and that every parent has the right to access Sure Start? Will he at least consider bringing back the ring-fence for Sure Start funding?
Lord Hill of Oareford
As I explained in my answer to the right reverend Prelate, there is a difference of opinion between us and the party opposite about the ring-fence. It is our view that giving local authorities greater discretion over their budget is the right way to go forward; to treat them like the responsible bodies that they are. I recognise there is not as much money around as there was before—I cannot deny that that is the case—but we believe the right way is to put the same funding into the EIG for Sure Start children’s centres, which are an extremely important service. We want to focus them on providing better services for the most disadvantaged and we think that is the right way forward.
Education Bill
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, after our discussions about admissions on Monday, I move to a number of government amendments which achieve two important things. The first introduces an important new clause that makes it possible for anyone to object to a school’s admission arrangements by referring an objection to the office of the schools adjudicator. His duty to consider all concerns that are raised to him in this way remains. This new clause builds on Clause 62, which extends the adjudicator’s remit to include all academies and free schools so that admissions to all state-funded schools will be covered by the same organisation. Our other amendments relate to the issue we discussed on Monday about national oversight of and accountability for the admissions system. Our Clause 34 would have removed a duty on local authorities to send their annual report on admissions in their area to the adjudicator. This is because in the statutory code we are placing that duty on local authorities to report locally to local people.
However, during Committee I listened with care to noble Lords’ concerns about the adjudicator not getting these reports to help flesh out his and the Secretary of State’s national picture on admissions. Noble Lords were worried that, without these reports, the adjudicator would see admissions only where things have gone wrong or might have gone wrong whereas these reports also set out the areas where things are going right, which is the vast majority. Noble Lords were concerned that this would remove a thread of accountability running from schools through local authorities through the adjudicator to the Secretary of State, which was not our intention. So we are addressing that concern with Amendments 64 to 67. They place a duty on local authorities to send their reports to the adjudicator in addition to being published locally. This will ensure his national oversight and he will continue to be able to take these reports into account when deciding whether to investigate a school’s admission arrangements. I hope that noble Lords will agree that our moves on admissions are aimed at achieving and promoting fair access and that these amendments will help achieve that end. I beg to move.
Baroness Hughes of Stretford
My Lords, I am grateful to the Minister for responding to my letter about these amendments and for the Keeling schedule which helps us to understand the impact of these further amendments. I welcome the moves that he has made and those new measures that he has just described. However, I would welcome clarification on two points before we get to Third Reading. In his letter to me in relation to my query about possibly seeing the draft regulations relating to these measures, the Minister says he believes that the admissions code should be the prime document and that regulations merely reflect the code rather than being a separate source of guidance. But the measures, even as amended in the School Standards and Framework Act 1998, provide for regulations which may make provision,
“as to any conditions which must be satisfied before … an objection can be referred to the adjudicator under subsection (2) or … the adjudicator is required to determine an objection referred to him”.
I understand that to mean that, in addition to the admissions code, which will not go into such matters, any regulations coming forward can stipulate conditions that parents or, as the Minister said, any person or body—including the local authority— must meet before making an objection to a school’s admissions procedure. As we have not seen the draft regulations, we have no idea of the conditions that the Government may be thinking of imposing. They could create additional hurdles for people to overcome before they can avail themselves of the opportunities to object to admission authorities’ policy and practices that the government amendments have created for them. Perhaps the Minister could clarify that my understanding is correct and, if so, what conditions the Government may be thinking of including in regulations. It is important that we have an idea of those before this matter is decided.
Lord Hill of Oareford
My Lords, it remains our intention to bring the new codes into force from February 2012. While there is no legal requirement for us to publish a further draft of the code, we intend to do so as quickly as possible, with a planned date of 31 October. Alongside those draft codes, we expect to publish draft regulations and to consult on them for four weeks ahead of laying the codes formally before Parliament on 1 December. I would be very happy to share a set of the draft regulations with the noble Baroness so that she can see them in good time.
Baroness Hughes of Stretford
Is it possible to see those draft regulations before Third Reading so that that issue is clarified before the Bill is finally disposed of?
Lord Hill of Oareford
I understand the point. Let me check where we have got to on the draft regulations and come back to the noble Baroness, if I may.
To clarify the point about binding the judgment of the adjudicator and what happens if the admissions authority does not do what the adjudicator says, the judgment of the adjudicator is final and legally binding. It cannot be ignored. The school or local authority must implement that decision without undue delay or find itself in breach of the statutory duty to have admissions arrangements compliant with the code. If they fail to do that, they risk judicial review or direction by the Secretary of State.
So the adjudicator’s ruling is binding. The difference is that instead of the current situation whereby the adjudicator specifies how the admissions authority must change its arrangements to comply with his ruling, his ruling will still be binding and it will be the duty of the admissions authority to comply with his ruling and change their admissions arrangements to make sure that they are compliant.
I take the point raised by the two noble Lords about vexatious complaints. We are proposing to put in place a couple of safeguards. First, the adjudicator would not have to reconsider his decision if someone were putting in repeated allegations and accusations on which he had already decided. Secondly, we are making it clear that there cannot be anonymous allegations of that sort to try to ensure that the system works properly.
“(1) Where a new school is to be established there should be local determination as to the appropriate category of new school, based on a local assessment of need and local consultation, including with parents and the local authority.
(2) The category of the new school shall not be presumed prior to the assessment of need and consultation with parents in subsection (1).
(3) The Secretary of State shall not provide a funding incentive which supports one category of school over another.”
Baroness Hughes of Stretford
My Lords, Clause 36 introduces a new presumption that every new school in the future will be an academy. The clause further restricts the power of local authorities to determine what is the most appropriate type of school when a new school is needed. Under the clause, before publishing proposals for a competition for the establishment of a new school, the local authority must obtain the consent of the Secretary of State.
The clause also enables the Secretary of State or the local authority with the consent of the Secretary of State to halt such a competition at an early first stage before the closing date for proposals to be submitted. The clause means that academy proposals in that process will no longer need to be submitted to local authorities for approval but will instead be referred directly to the Secretary of State for him to decide if he wishes to enter into academy arrangements with the proposer. The clause places a duty on local authorities to seek proposals for the establishment of an academy if a new school is needed, not any other type of school. It specifically denies the local authority the ability to publish any of its own proposals for a new foundation or community school in a Section 7 competition.
The Government's proposals essentially do three things. First, if a new school is needed in an area, they skew the whole process massively so that academies have an immediate head start over other types of school through this presumption, which will be enshrined in law. Secondly, they mean that a local community school is possible only as a last resort when all other options have been exhausted. Thirdly, they limit the role of the local authority and parents to have a say in the type of school, according to local need and the best fit with the local school system. At the very least, this appears to fly in the face of the localism agenda that the Government appear to be promoting elsewhere, but also it seems wrong in principle. Clause 36, with the presumption in favour of academies for every new school, gets to the very heart of the Government’s intentions and presents the most profound change and challenge to our education system.
As we have noted before, the Government’s vision is that eventually every school should be an academy. This clause will apply to primary schools, secondary schools, special schools, every kind of school—all schools as academies with power to determine their own admissions, and no formal links with local authorities or other schools. It is Death by default of local community schools leading potentially to thousands of atomised schools all linked, in theory, to the Secretary of State though in practice the Secretary of State and his officials could not possibly manage effectively so many relationships. Therefore schools will, to all intents and purposes, be free floating. The significance of Clause 36 cannot be overstated.
Amendments 70A and 73A seek simply to create a level playing field. Amendment 70A would mean that where a new school needs to be established, there should be local determination as to the category of school based on an assessment of local need and consultation, including with parents; that the category or type of new school would not be presumed prior to that consultation and assessment; and that the Secretary of State shall not provide any funding incentive which supports one category of school over another. Amendment 73A would consequently remove Schedule 12 to the Bill.
When this was discussed in Grand Committee, the Minister told us that the provisions do not mean that every new school would be an academy, but as the Bill stands any proposal for a new school would go forward only if a satisfactory academy solution could not be found. In that situation, the local authority would then be required by the Secretary of State to run a competition that includes the possibility of different kinds of schools. It is only if the second stage of the process fails that the local authority could bring forward proposals for a community school. The dice are loaded heavily in favour of academies and against local community schools, which can go forward only as a last resort. Our amendments would remove that presumption, restore neutrality between the appropriateness of different kinds of schools for different situations, and allow the decision to be made locally on the basis of what is best for the children and families in that area.
The presumption also seems to restrict parental choice, both in the decision about the type of school needed and in moving, in time, to one type of school only—the academy. The Government profess to be in favour of parental choice. Nick Gibb in the other place said that the intention behind Schedule 12 is,
“to increase parental choice by diversifying provisions and ensuring that parents have a genuine choice of school to which they send their children”.—[Official Report, Commons, Education Bill Committee 29/3/11; col. 790.]
It is difficult to see how these proposals succeed in that objective. By contrast, our amendments would put parents at the centre of decision-making and thereby ensure a wider range of types of school—more diversity in the system—by not presuming there is a one-size-fits-all solution, the academy. This seems to us to be a more mature approach and a fairer approach, opening up all options equally for local people to consider.
I hope that these amendments will be given the support of the House, particularly from those noble Lords across all Benches who, while open to the potential of academies to improve standards—as indeed I am and my colleagues are—do not believe that academies are necessarily the best and the only solution in every situation, and who want to see local involvement in decisions about new schools. I beg to move.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his response and noble Lords for their contributions to this debate. In response, I shall touch on some of the points made.
The amendments tabled by the noble Lord, Lord Avebury, and my noble friend Lady Massey and the contributions from the noble Lord, Lord Alton, and the right reverend Prelate relate to the number of places in denominational schools for children who are predominantly—although, as was said, not exclusively—from families of faith. I understand and respect the fact that that is a very important issue for people of faith, as, indeed, it is for those of none. I do not want to go down the route of debating that issue except to acknowledge that I have heard both sides of that debate. The main thrust of the amendment is potentially relevant to all new schools in the future, and therefore to a much wider group of children. I therefore want to focus on the presumption.
Correct me if I am wrong, but I think that I have discerned that the principles of local determination on these matters and of retaining a wide diversity of schools in a locality—a balance, as my noble friend Lady Turner said—are shared and supported on both sides of the debate. I therefore hope that both sides will support my amendment as my noble friend Lord Touhig has correctly identified it.
As for the amendments tabled by the noble Baroness, Lady Walmsley, although I very much welcome her support for local involvement in decision-making on local schools, I do not feel that her amendments go far enough. She is not seeking to delete paragraph 6(1) from Schedule 11, which enshrines the presumption that where a new school is needed the local authority,
“must seek proposals for the establishment of an Academy”.
That is the core of Clause 36, to which we object. Given the resolution on academies at her party's most recent conference, it is somewhat surprising that the Front Bench here is apparently prepared to support a presumption in favour of academies. I do not support her amendment because it still does not challenge that presumption.
In response to the Minister I would say, as I am sure he would expect, that there is no divide at all between us on the desire to raise standards in schools, to increase opportunities for children—particularly those whose start in life has been more disadvantaged—and to achieve diversity of school provision. I take issue somewhat with his claim that the Government are merely extending the Labour Government’s policies on academies. The language used by the current Government may be similar but the scale of their intentions make this policy, and its outcome for the system of education in this country as a whole, qualitatively very different indeed.
I agree as well that, in the beginning of our embarking on the road of academies in disadvantaged areas, some local authorities were resistant to the idea. But things have moved on. The Labour Government in particular demonstrated that, by selective targeting of academies in the most disadvantaged areas, standards in those places and for those children could rise substantially. It is a very different matter for the current Government to propose to enshrine in law a presumption that every new school in the future should be an academy, with community schools only as a last resort.
It is also a very different proposition to say there should be a presumption that every school is able to become an academy regardless of whether it is equipped to handle the greater autonomy that such status brings. Although we on this side support academies in principle, the principles of local determination and a diversity of provision from which parents can choose are more important. We are not convinced by the Government’s argument. It is, by anybody’s standards, a step too far to enshrine this presumption in law. I wish to test the opinion of the House.
Baroness Hughes of Stretford
My Lords, I welcome the affirmative resolution procedure introduced by Amendment 74, which will mean that Parliament will have to consider any further proposals by the Government to change and particularly to extend the exemption from inspections for any other categories of school. That is a bottom-line issue and I am pleased to see that the Government have brought forward those amendments. However, and we will go on to debate this in the next group, the principle of exempting any public service from the possibility of inspection in the future is a principle that we cannot support. Risk assessment and proportionality is one thing—for a long time it has been the approach adopted by Ofsted and supported, as it has developed, by successive Ministers including myself and my predecessors in the previous Government —but exemption, potentially for ever, even for a school judged to be outstanding is quite another.
Do the Government intend to exempt, for example, excellent hospitals from further inspections? What about excellent nursing homes or care homes for the elderly? I suspect not, because the Health Secretary announced today increases in the inspection of hospitals, including no-notice inspections, of which I entirely approve and think there should be more of in relation to schools as well.
I note in the Minister’s response to the Committee and in his letter to me, which my noble friend Lady Morgan has outlined, the actions that he has agreed Ofsted will take in relation to outstanding schools if this measure is approved. They will try to minimise the dangers—there are dangers, not just to safeguarding but to educational standards—that could arise from the government decision wholly to exempt such schools from inspection.
Lord Hill of Oareford
My Lords, let me respond briefly to the specific point about safeguarding raised by my noble friend Lady Walmsley, which I think the noble Baroness, Lady Morgan of Huyton, alluded to. I can confirm that the thematic survey of safeguarding will take place and will be used to inform the judgments that we make going forward about that important issue.
I turn to the core point made by the noble Baroness, Lady Hughes of Stretford, about the thinking behind the Government’s approach. I recognise the points of view that she put across: wanting a more proportionate approach based on having far more data about how schools are doing generally and publishing those so that parents can see the whole time how the school is doing, but having the position that if schools are performing well—delivering what parents want, delivering strong results—we need not make them be inspected in the same way as all other schools.
Baroness Hughes of Stretford
Just while the Minister is on that point, would he concede my main point, which is that it is not necessary to exempt outstanding schools from inspection in law in order to have the different, proportionate approach that he talks about?
Lord Hill of Oareford
The reason why we are making this change and doing it now is because we are putting on a statutory basis the approach that we want. That is why we are doing it. In practice, the vast majority of secondary schools will be inspected through a thematic survey visit over a five-year period. The risk assessment arrangements will trigger inspections. The starting point is that we think it builds on the principle of proportionality that already exists in inspections. With these increased safeguards in place, and I am grateful to noble Lords who have encouraged us to strengthen those and look at this again, we think that it will deliver a proportionate and effective system.
Lord Lucas
My Lords, I add my voice to those who have already spoken. I am greatly saddened by this Government’s attitude to inspection, which seems to me to be coloured by too many years in opposition listening to schools complaining about inspection. Indeed, inspection under the previous Government was not generally taking a constructive turn, but then, we had not constructed it in a constructive way ourselves previously. I had hoped that this Government would go back to first principles and ask what inspection is for. If you start by saying that it is to make sure that our children are receiving the best possible education, then you need a system which is much faster to react than the current one. It can take Ofsted three years to pick up that a school is going wrong, because their data are always backward-looking and they always want two years of that before they believe that there is any trend in place. So in the schools that I have seen and known to have gone wrong, it has been the third year or the beginning of the fourth when Ofsted have come to call and by then, a lot of children’s educations have been harmed. I would have been looking to produce something which was much faster to react, rather than something which is going to be slower to react.
To pick up the point made by the noble Baroness, Lady Morris of Yardley, and the noble Lord, Lord Quirk, it is essential that inspectors, the people who are seeing a lot of schools, see the very best. The point about the best schools is that they are utterly surprising and jaw-dropping when you see them: you could not believe that what they are doing could be done. When you have seen it, you start to understand how other schools could do it too, but if you have not seen it, you just do not know; you just accept that the ordinary way of doing things is sufficient, that the platitudes that, “We are doing well by our children here” are right, because it is okay by the current average, rather than being anywhere near the potential of the children. When you see the difference that a really good school can make, you understand that there is a long way to go; not that schools are bad at the moment, but that the good schools can be a great deal better than they are. That understanding comes from going round outstanding schools and being able, as the noble Baroness, Lady Morris, said, to set your yardstick on the basis of what you know can be achieved with children like these in a school that really understands how to deal with them.
We do not have that; we have something that goes backwards. We have a decision to remove outstanding schools from the purview of Ofsted. However, things change. I came across a school by chance the other day—Glenthorne in Sutton. It is sprouting all sorts of new initiatives. You can study three A-levels and golf, as well as tennis and football, to a professional standard. It is great to see these initiatives but no one will take a look at them. No one will know whether they are going right or being balanced correctly. It will be three years before anything shows in the figures. However, a good, experienced head, going around six months into the project, would know whether it was going right. To think that you can do this by remote control—that we are looking after the future of our children by stepping back in this way—is a profound misconception. I am afraid I despair of changing the Government’s mind at the moment, but give it a year or two, let an outstanding school or two crash, and then we will think about it again.
Baroness Hughes of Stretford
My Lords, I cannot improve on the contributions that we have heard from my noble friends and the noble Lords, Lord Quirk and Lord Lucas. I just want to add a few more points to the debate.
The first is one of principle. I believe strongly that not just the Government but we in this House and the other place are guardians of the public when they use public services. We have to take very seriously the arrangements we make to ensure the safety as well as the standards of those services. Secondly, as we have seen, the possibility of an inspection in any public service is not a guarantee of high standards. However, the certainty of no inspection surely means a huge risk of declining standards and, in this case, a risk to children. Thirdly, our experience in other sectors, particularly in health and social care recently, shows that pulling back too far on inspection has led to serious risk to patients and older people. Fourthly, there is the point that I made in my previous contribution, which, with respect, I do not think the Minister answered fully. Exempting outstanding schools completely is not necessary in order for them to have a qualitatively different inspection regime. We should keep them in the framework of inspection.
My noble friend Lady Morris asked the Minister to take a deep breath and think again about his position and responsibilities. I ask noble Lords also to think from the point of view of a parent of a child at a school, with which they may well be very happy as an outstanding school. However, they would not be happy to know that it would never be inspected again. A further point is that when parents are looking for a school for their children, they look not only at a school’s results but on the internet for Ofsted reports. In this instance, a few years down the line there will be no up-to-date Ofsted reports for those parents who are looking for a school to examine. They will not know the difference between the school as it was when it was outstanding and the school as it is further down the line. On this issue we all have a responsibility to consider all the points made, particularly the dangers inherent in this approach, and whether we are happy to support them.
Education Bill
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Baroness Hughes of Stretford
My Lords, I do not object in principle to the proposals. They were consulted on in 2009 by my Government. We decided at that stage against moving in this direction. I agree that the impact on students when these errors occur is very bad. I agree, too, with measures in general to drive up performance, although it is interesting to contrast them with the approach of this Government to driving up performance in schools, which is to absolve them of every possible requirement, whereas in this instance further financial sanctions are being sought. It is a moot point whether Ofqual needs these powers or whether the existing powers that the Minister has referred to of withdrawing accreditation or giving a direction are both more appropriate and more effective. The Minister agreed that these are strong powers.
I will make three points and will be grateful if the Minister will respond to them. First, I echo some of the points made by the noble Baroness, Lady Sharp, about the rushed nature of this publication. It begs the question of whether the detail has been properly thought through, with only eight days for providers to have any kind of discussion with Ofqual about how it might work. Consequently, no information is available on a number of important questions. For example, in what circumstances will the financial penalties be imposed? What level of apparent errors will be the threshold for financial penalties to kick in? What will be the levels of penalties and how will they be determined? What will the maximum penalty be? What will be the mechanism for an independent appeals process for providers, and what safeguards will there be that it will be a fair and transparent process? Will the Government issue guidance to Ofqual on how it should conduct itself? The Minister may say that Ofqual will have a full consultation for 12 weeks on some of these questions, but as noble Lords are being asked to consider the measures now, it would have been helpful to have had some indication of the Government's view about how this will work.
My second question is: are financial penalties appropriate? We have heard that Pearson has replied with some comments, but I am more concerned with the majority of exam boards, which are charitable, not-for-profit organisations. Seventy-five per cent of all GCSEs and A-levels are delivered by not-for-profit organisations. There is already in the system a degree of potential financial instability for the exam boards, because government policy decisions, for instance on changing the structures of GCSEs, have an immediate financial impact on them. Therefore, there is a danger to the not-for-profit organisations that this may further jeopardise their financial stability. As we have heard, schools, too, are concerned that if the not-for-profit organisations take any financial penalty, ultimately they will have to pass it on to schools; they will not necessarily be able to absorb it.
Finally, I am concerned that there are clear parameters and guidance on how Ofqual must use the powers in ways that will protect it from having to respond to what will inevitably be media pressure and perhaps the appearance of political pressure concerning the way it implements these decisions and applies financial penalties. What safeguards does the Minister envisage to ensure that protection? One not-for-profit exam board has suggested that Ofqual should deal with these matters through a more distant complaints procedure, so that it will be clearly separate from government and shielded to some extent from the barrage of perhaps understandable media pressure that will accompany these issues.
Lord Hill of Oareford
My Lords, I am grateful to my noble friends Lord Lingfield and Lady Sharp of Guildford, and the noble Lord, Lord Sutherland of Houndwood, for their broad welcome for the measures, and the recognition that this responds to a need.
On the speed of the consultation, referred to by my noble friend Lady Sharp and the noble Baroness, Lady Hughes of Stretford, we responded to the points that were raised in Grand Committee. A legislative opportunity presented itself with this Education Bill and we had before us the failures of this summer. I know that the previous Government consulted. Our case would be that, with the legislative opportunity there and the evidence of the failures that we had this summer, which the previous Government had not had, it was sensible to act while the opportunity presented itself, but I take my noble friend’s point about the importance of consultation. Ofqual will consult on the detailed implementation of its powers, which will be a full 12-week consultation.
In response to the question asked by the noble Baroness, Lady Hughes, Ofqual will publish a statement as part of its qualifications regulatory framework, which will set out how and in what circumstances its powers will be used. That will make clear Ofqual’s expectations that only serious or persistent breaches could lead to a fine.
On the question of appeals, there will be an appeal to the independent First-tier Tribunal, in line with other regulators. I know that concerns were raised about fines being passed on to schools, effectively. Ofqual will have powers to cap those fees if it thinks that it is necessary to do so. I understand the point that obviously some of the big awarding bodies are charities, but some of them are charities with very large tens of millions or hundreds of millions of pounds of turnover. Our basic point is that a pupil or student on the wrong end of a duff examination paper is not too bothered whether that paper has been set by a charity or a commercial organisation. That is why we think that it is appropriate to give this extra power. The noble Baroness, Lady Hughes, is right that there are two powers but we feel that in essence they are not sufficiently nuanced. Giving this additional power we hope will lead not to large amounts of fining but to better and more accurate examination papers.
Education Bill
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Baroness Howe of Idlicote
My Lords, I, too, welcome the government amendment—or everybody’s amendment, really. It clearly is right and proper that schools and children’s services play their part within the broader community. In a recent survey of almost 1,000 governors, carried out by the National Governors Association and the TES, a significant majority of governors agreed that schools should play a key role in the provision of children’s services in the area. Indeed, that makes sense, and is surely what the Government were aiming to do—to get everybody involved in children’s education to work together for their benefit.
Baroness Hughes of Stretford
My Lords, I, too, warmly welcome the government amendments not to repeal the duties in Clauses 30 and 31. The Minister probably had to do some convincing back at the ranch, so to speak. It would be rather surprising if he did not, but I am certainly glad that those provisions will remain on the statute book.
I have a few questions about the situation now. Despite the measures in the government amendments, there is some confusion about the Government’s commitment. I perhaps echo something of where the noble Baroness, Lady Walmsley, is coming from. Amendment 62 restores Section 10 of the Child Care Act 2000—the duty to co-operate to improve well-being. That Section 10 refers to “academy” as one of the schools on which the duty is imposed, but as we know, Clause 52 of the Bill creates three different types of academies: academy schools; 16 to 19 academies; and alternative provision academies. First, for the avoidance of doubt, is it the Minister’s understanding that the duty to co-operate will apply to those three types of new academies, as well as the generic term in the Child Care Act?
Secondly, there has been a revocation of regulations that were introduced some time ago to apply the duty to pupil referral units. The Government have already revoked that requirement. Can the Minister assure us that he will now overturn this revocation and bring pupil referral units back into the duty to co-operate, as was originally the case before the Government acted?
“( ) In section 84 (code for school admissions) in subsection (2) after “requirements” insert “which ensure fair access to opportunity for education”.
( ) In section 84 (code for school admissions) in subsection (2) after “other matters” insert “which ensure fair access to opportunity for education”.”
Baroness Hughes of Stretford
My Lords, I will speak to Amendments 63A and 66A, which relate to Clause 34, on the subject of admissions. Amendment 63A would require the code on school admissions to have a duty to ensure fair access to opportunity for education. Amendment 66A would require the Secretary of State to promote fair access to education and training. We regard those two amendments as consequential, one on another.
Let us remind ourselves briefly of the very important debate we had in Grand Committee. Many concerns were expressed about the provisions in the Bill, and the way the Government were changing the arrangements on admissions. As it stands, the Bill introduces a number of changes to admissions. These include reductions in the powers of the school adjudicator. The Bill removes the power of the adjudicator to direct a school or a local authority to change those of its admissions policies which breach the code. It removes the power of the adjudicator to look more widely at school admissions and practices when they receive a specific complaint. It also abolishes local admissions forums, which can resolve parents’ issues locally and avoid complaints going to the adjudicator.
The Government have brought forward some minor amendments, which we will discuss after this group. I thank the Minister now, as I will later, for his Keeling schedule, and the efforts he has made to explain those amendments. They are important, but they do not address the subject of the amendments in the current group. These amendments would require the Secretary of State to promote fair access to education, and to ensure that the admissions code also required fair access to opportunity for education.
So why is this amendment necessary? It is necessary because academies are their own admissions authorities and as the number of academies grows, which is the Government’s intention, to a point where most or all of our 20,000-odd schools are academies, parents making applications will face a bewildering and inconsistent patchwork of different admission arrangements at different schools.
In fact, there is already information that this is the case in some boroughs where the majority of secondary schools are academies. For example, someone might live very close to a school, but that school does not have as one of its admission criteria proximity of the pupil’s home to the school, so the pupil could not satisfy that criterion. But the same child may live too far away from the next nearest school which does admit pupils on the basis of proximity. There is a real problem for parents in the future as more schools become academies. Schools that are highly performing are often very popular and it is crucial to ensure that access is fair so that children from all backgrounds can benefit. Even the most articulate parents and those who know the system best might struggle in a borough in which every single school operates a different set of admissions criteria, but for those for whom English is a second language or who feel they can navigate the system less well, the risk must surely be that their children simply end up in those schools that are undersubscribed and where others choose not to apply. However, since it is not yet the case that every school is an outstanding school, parents’ ability to choose a school in a transparent way within a fair and consistent admissions system is even more important.
In Grand Committee, I noted that the new draft admissions code contains the word “fair” 26 times, including in the line:
“The purpose of the Code is to ensure that all school places for maintained schools … and Academies are allocated and offered in an open and fair way”.
But using the word “fair” so many times does not give the code the duty to ensure that fairness, and that is what these amendments would achieve. They would also hold the Secretary of State accountable for ensuring that access is fair. This goes to the crux of the debate in Grand Committee because, leaving aside the detail of the Government’s arrangements, there is a great deal of concern that responsibility for ensuring fair access should be built into the arrangements on admissions. Some similar amendments to those I am putting forward today were tabled in Grand Committee, and the noble Baroness, Lady Walmsley, said that what concerned her was that someone should have oversight as to whether fair access is going on. I agree with her, and I note that the noble Baroness and her colleagues have tabled similar amendments.
In Grand Committee the Minister told us that the draft admissions code is designed to ensure fair access and local authorities are under a duty to exercise their functions with a view to ensuring fair access to opportunity for education and training. But in an increasing number of cases, particularly at secondary level, whereas I have already said that there are no or few schools in which the local authority is the admissions authority, because they are all academies, it is difficult to see how this will protect parents and children. That is because so far as admissions are concerned, the local authority is irrelevant. So Amendment 66A would give the Secretary of State a duty to promote fair access, while Amendment 63A would ensure that all admissions authorities, when setting their criteria, would have to set them so as to ensure fairness of access. The Liberal Democrat amendment also tabled in this group would have the same effect as our Amendment 66A, but we have used the term “promote fair access” while they have used the words,
“to ensure fair access … as far as is reasonably practicable”.
I do not think that there is much to choose between them.
This is not a debate about the detail of the Government’s proposals. It is an argument that says: given the changes the Government are making—dismantling to some extent the checks and balances in the current system on admissions—and the ambition that every school should be an academy and therefore its own admissions authority, it is vital, in our view, that there is an overarching obligation on the admissions code to ensure fair access and that the Secretary of State has an overarching duty to be accountable for promoting fair access overall.
As I said in Committee, it is not that we are not in favour of more freedom and autonomy for schools, but we believe in trying to achieve a balance between the interests of schools on the one hand and the interests of parents and children on the other. There should be a duty outside the school system itself—that is, in the admissions code and with the Secretary of State—to ensure that that fairness is really built into the system and that the system is really operating in that way. I beg to move.
Lord Hill of Oareford
I understand the point. One way to tackle this might be to ask the chief adjudicator to look at the concern that has been raised about what happens where there is a range of admissions authorities. The chief adjudicator would be the right person to look at that, report on it and comment on it in his annual report so that people can see what is going on. I will follow up that point with my right honourable friend to see whether that might be a way of addressing those concerns.
As I said, local authorities have a duty to refer any arrangements that they suspect may be unfair to the adjudicator. That role gives them oversight of all arrangements, be they at maintained or academy schools. In carrying out all of their functions in the provision of education local authorities have a duty under Section 13A of the Education Act 1996 to ensure fair access to opportunity for education and training. We think that the duty should be at that level.
Ensuring fair access was the reason for the introduction of the admissions code and is central in its current revision. We hope that the new revised code, which was consulted on over the summer and will be laid before Parliament shortly, makes the code easier to understand while protecting and extending safeguards for vulnerable groups. The changes in this Bill extending the adjudicator’s remit to include academies and free schools, and the government amendments which will allow anyone to object to the adjudicator, are aimed at achieving and promoting fair access. We think that sufficient safeguards are in place to make sure that the oversight to which noble Lords have referred is in place. The changes we have made will help the admissions arrangements, not weaken them as the noble Baroness suggests. I ask the noble Baroness to withdraw the amendment.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his detailed response. As my noble friend Lady Morris said, he was trying to be helpful. However, a number of issues are still outstanding. I also thank other noble Baronesses and my noble friends for contributing to the debate as well. It is somewhat disappointing that the noble Baroness, Lady Walmsley, said that she tabled her amendment to enable the Minister to say what he had to say, as she spoke with great conviction in Committee about the necessity for an overarching duty precisely for some of the reasons that my noble friend Lady Morris pointed out; namely, that this issue—
Baroness Walmsley
Perhaps I may clarify the situation for the benefit of the noble Baroness. I have been convinced by my noble friend the Minister and my right honourable friend the Secretary of State that the duty is there and that it is no longer necessary for me to press my amendment. I have been satisfied on the issue.
Baroness Hughes of Stretford
As I hope to point out, I did not hear the Minister say anything which suggested that that duty already exists in statute. He said that it is not strictly necessary. I will try to unpick what I think he said. I am surprised that the noble Baroness is satisfied by that.
Lord Avebury
Perhaps the noble Baroness did not hear the Minister say that he will write to my noble friend giving her the statutory reference. Is not that enough?
Baroness Hughes of Stretford
I do not have a statutory reference. I am just responding to the words that the Minister himself chose to use. If I might get to that point, I will perhaps explain what I mean.
My noble friend Lady Morris rightly said that, even in the context of trying to free head teachers to run schools, it really does not make sense to enable each school to decide which pupils to admit and which to reject. In a local system, this atomisation of admission decisions by individual schools means that some children will be left out and that the interests of children as a whole will not be protected. My noble friend Lord Knight of Weymouth gave some good examples from his experience of how some schools will not abide by the admission codes and will not comply. The examples we have seen of that confirm the need for a duty or power outwith the system. That is the point that we were trying to get across to noble Lords.
My noble friend Lady Morris said it should be a referee; I would say a guardian of the rights of children and parents in this system. The Minister said that the duty on the Secretary of State was not strictly necessary, but when he went on to talk about what powers and duties the Secretary of State has in law, he said that the Secretary of State had full oversight of admissions through the school adjudicator. This gets to the principle of the role of government. We are seeking an active agency within government to make sure that admissions are fair across all children—not to have oversight through the adjudicator only. That is not an active requirement on the Secretary of State, either through the admissions code or directly on the Secretary of State himself. Yes, the Secretary of State has the power to ask the adjudicator to investigate, but that is not the same as the Secretary of State having the duty to satisfy Parliament that he is pursuing by every means possible the principle of fair access.
The Minister also said that he thought that the right level for that duty was the local authority. As I said in my opening remarks, local authorities will have a co-ordinating role on the admissions code, but that is a co-ordination in relation to the administration of the admissions, not to the actual decisions that schools will make. That is not where the qualitative decision lies; the local authorities have no power at all under the proposed arrangements to challenge. They will have a power to refer to the adjudicator if they think a school is not in compliance, but they do not have that overall duty, at least where most schools are academies, to ensure fair access. There is nobody actually holding that ring in the system at the local level or nationally. That is why we feel very strongly, on a point of principle, that it is the responsibility of government to protect the rights of children and parents. That is where democratic accountability lies in this regard, in our view—to protect) the interests of citizens who are, in this case, children and parents. Given the ambition of the Government that every school should be an academy and be its own admissions authority, and given the other changes that the Government are making to the system, we feel that these amendments are necessary. I wish to press the amendment.