Academies Bill [HL]

Baroness Wilkins Excerpts

Wednesday 7th July 2010 Lords Chamber

[Lord Low of Dalston]

My Lords, I wish to speak to Amendments 12 to 14 and to Amendment 39, all of which are in my name. I very much welcome government Amendment 11, to which the Minister has just spoken. In Committee, there was a widespread concern throughout the Chamber to ensure that academies were put on the same footing as maintained schools as regards admitting and meeting the needs of pupils with special educational needs. The Minister said then that he would reflect and come back with proposals on how parity could be achieved. As we have heard, he has been as good as his word. I am very grateful to him for this and for the time and trouble that he has taken to meet Peers to discuss their concerns. I am also most grateful to officials for the time that they have taken to make sure that we get this absolutely right.

For my part, I think that we have very nearly got it right, but not quite. That is why I have put down the amendments to which I am speaking this evening. I spoke on this at some length in Committee, so I shall not weary the House by going over the same ground all over again. The Minister has met very many of the concerns that I raised in Committee, but one or two issues still remain. The first is whether the new provisions will relate to existing as well as new academies. In moving his amendment, the Minister has clarified that because he has said that they will do so. However, I think he said that they would apply to existing academies when they entered into a new agreement. That could be some years away. I hope that the Minister can reassure us that steps will be taken to apply the new provisions to existing academies at the earliest possible date and not necessarily waiting several years before doing so.

Secondly, there is the question of whether obligations that are equivalent to the SEN obligations in the Minister’s amendment are the same in their effect as the SEN obligations. If not, it will be argued in court that Parliament’s decision not to make these obligations direct statutory obligations must indicate an intention to permit variation from the statutory framework. I should therefore be grateful if the Minister could confirm that the intention is for academies to be subject to exactly the same obligations as maintained schools as regards admitting and meeting the needs of pupils with special educational needs, which the notion of parity would imply.

My main concern is with the enforceability of the rights implied by these obligations. The Minister has chosen to confer the obligations by importing the statutory SEN framework into the contractual framework of academy arrangements. These are contractual agreements between the Secretary of State and an academy to which parents and pupils are not a party. There is a complex legal argument as to whether the duties imported into academy arrangements by this means are enforceable by parents or pupils. I shall spare the House all the legal technicalities, but there are essentially three ways that one might seek to ensure that the duties are enforceable.

The first is by laying on academies the same statutory obligations as those laid on maintained schools directly by statute, not by statutorily importing them into a contract. That is what my Amendment 14 would do and I still think that it is the simplest and surest way to achieve my aim, which is why I have tabled that amendment again and why it would save a lot of bother by putting everything beyond doubt, if the Minister agreed to it.

Assuming that the Minister’s preference is to proceed by the contractual route and to maintain the contractual relationship with academies, there are two further ways that one might seek to enforce the contractual obligations. One is through a complaints procedure and the other is by making it clear that pupils and parents can enforce their rights by judicial review.

As for complaints procedures, complaints would presumably be made to the Secretary of State, but there is nothing that establishes such a procedure and nothing is proposed. Even if there were, it would need to be clear that if the Secretary of State found that an academy had not complied with the relevant provisions of the academy arrangements, he would require the academy to comply, and the arrangements would need to make clear that he could compel compliance. This would place a considerable additional burden on the Secretary of State, whose process for dealing with complaints is already widely perceived to be slow and ineffective—as is illustrated by the fact that it is never suggested by defendants in proceedings for judicial review that the court should decline jurisdiction because a complaint to the Secretary of State would provide an effective alternative remedy.

As for judicial review, the availability of this remedy could be put beyond doubt simply by making clear that the rights accorded to pupils and parents under academy arrangements could be enforced through judicial review. This could be done on a narrow basis relating to SEN only, as is provided for in Amendment 12, or on a wider basis covering all rights given to parents and pupils, as provided for in Amendment 13. Amendment 12 would sort out the problem relating to special educational needs, but would, if anything, weaken the position in relation to other rights—say, those relating to admissions—because it would imply that those rights could not be enforced through judicial review.

The Minister has shown himself to be very accommodating of our concerns in the quest to achieve full parity between academies and maintained schools. I hope that further discussion may be possible before Third Reading, with a view to finding a formula which would ensure that enforceability is not only a reality, but is seen to be a reality, either through a robust complaints procedure or by putting it beyond doubt that judicial review is available as a remedy.

Something along the lines of Amendments 12 or 13 would do the job for judicial review, and I have suggestions for a robust complaints procedure that I would be happy to put to the Minister. Amendment 39 begins the job, but even that requires fleshing out in some respects to reflect the ingredients of a robust complaints procedure. If the Minister would be happy to proceed along these lines, I am sure that we could reach an arrangement that would put enforceability beyond doubt and would be satisfactory to everyone. If full parity is the Minister’s aim, I cannot see a reason not to do this.

[Baroness Wilkins]

My Lords, I echo the thanks of the noble Lord, Lord Low, to the Minister for all his time and the concern that he has given to this issue. I support the noble Lord, Lord Low, in his amendments and hope that the Minister will meet his concerns and satisfy him fully.

[Lord Hunt of Kings Heath]

I, too, warmly thank the Minister for bringing his amendment. It certainly shows that he has listened to the House and we are grateful. I also support the noble Lord, Lord Low. He raises important issues in relation to JR and I am sure that the Minister will be able to respond positively.

I should like to raise a further issue on this group of amendments which relates to SEN funding. It arises from the potential decline in the ability of local authorities to fund support services for SEN pupils which would result from an increase in the overall number of academies.

At the moment, local authorities retain a proportion of funding related to the number of schools that they maintain for the provision of central services, including those for special educational needs. While the overall level of funding within a local authority area may well not fall as a result of this process, the reallocation of resources away from local authorities to individual schools can have potentially significant effects for children and young people with SEN.

We widely accept that the provision of special educational needs support is at the most expensive end, or at least the more expensive end, of the educational spectrum. A key feature of local authority provision is that it allows a local authority to ensure that finite resources are spent effectively through the ability of the local authority to generate economies of scale.

This matter will come up later in Amendment 21, to be moved by my noble friend Lady Wilkins, on low-incidence SEN. However, it actually raises a more general issue of principle. In the letter that the Minister circulated to us and to my noble friend, he states that academies are able to buy in SEN support services from their local authority, from neighbouring local authorities or from other providers. I understand that principle, but I ask him to reflect on the circumstances. Because there will clearly be no requirement for an academy to purchase services from its local authority, current services might be at risk. In particular, the expertise that individual local authorities have established might not be available to academies, because resources are no longer there to support it. There is also a risk that the provision of SEN support on an individual school basis might be more expensive than that which could be accessed by the local authority.

The noble Lord may say that the problem will not arise, that essentially he is proposing a market-based solution and that because of that the combination of academies making their own decisions will ensure a satisfactory outcome. I should mention again my NHS experience, because what is happening here is very much in parallel to the decentralisation that has been undertaken in the National Health Service. My experience has been that in that process specialist services can actually lose out and that if they do, the Government have to find some mechanism for intervention to make sure that those specialist services, as a whole, continue to be provided. I give advanced warning that I will raise this again in the debate on my noble friend’s amendment. It would be useful to have some indication from the Government that they understand the issue and that there is a mechanism by which they can deal with it. If the noble Lord had accepted my suggestion that a statutory duty of partnership might be laid on all parties, that might have been one way through.