Academies Bill [HL]

Earl of Listowel Excerpts

Monday 28th June 2010 Lords Chamber

[The Earl of Listowel]

My Lords, listening to the noble Baroness, Lady Perry of Southwark, I was reminded of visiting a children’s home some time ago with an inspector who made the point that she had been asked to be an inspector for care homes for the elderly and had declined because she was a teacher by background. She said, “What do I know about care homes for the elderly?”. There has been an issue—I am sure that it is still an issue—of ensuring that the inspectors are the right ones for the particular institution. The inspector also said that the remit of the Commission for Social Care Inspection, for which she worked at the time, was very much about supporting and developing good-quality practice and supporting the staff. After the remit moved to Ofsted, certainly the information that I received suggested that it became very much about checking that someone had done the right thing and criticising them if they had not, but not about asking, “Have you tried this? What about that way?”, and supporting the development of better practice.

The noble Lord, Lord Lucas, suggested using retiring teachers. The National Union of Teachers has emphasised the need to ensure the proper and continuing professional development of teachers who are already practising. It is concerned that past advice from the Department for Education—then the Department for Children, Schools and Families—was, “You shouldn’t let teachers off during the school day to get continuing professional development. They should do it at other times because we need them in the classroom”. If we could free up teachers with quite a lot of experience to spend a day in another school and take part in the sort of inspection and support arrangement that the noble Lord is discussing, that might kill two birds with one stone inasmuch as it would give them a chance to see how someone else teaches and to learn from that. They could be refreshed by that, as well as producing a report that could be useful to parents or whomever, and they could support professional development at that school. That occurs to me having recently read the information from the National Union of Teachers. No matter how much we improve the training and recruitment of teachers, most teachers are already in post and will be there for a long time, so we really have to think about their developmental needs. That is a bit of an aside.

[Lord Bates]

My Lords, I am grateful to my noble friend Lord Lucas for moving this interesting amendment. My default position when I first read it was that it was completely opposed to what the whole Bill is trying to do: to free up Ofsted inspectors so that they do not spend endless amounts of time visiting schools that are simply outstanding across the board but devote that time to schools that are failing in some areas so that those schools can be given greater attention and support. I take the point made by my noble friend Lady Perry, but that was very much where I was coming from.

When I heard the debate, however, I began to move towards seeing a couple of problems that need to be explored. I wonder whether part of the solution, which probably needs to be developed a little further, should not be the partnering of a highly successful school, which is enabled to become an academy, with a failing school. What would be the format of that relationship? Could the successful school assess and supervise the failing school in the interim?

Then there is the role of the governing bodies. Often very little is said about them, but under the new arrangements they will have hugely more power, authority and responsibility. How much training are they given? When one becomes a non-executive director of a firm, there are often lots of training courses about your duties, statutory responsibilities, the pertinent questions to ask and what you should look out for. The head teacher on the first governing body of which I was a member absolutely insisted that there was never any need for a member of the governing body to come to assemblies or to visit any of the classrooms, as that was way beyond their remit. Later on academy boards, I found that the head teachers of good, successful schools went out of their way to encourage governors to experience classroom teaching, to sit in the staffroom and to talk to teachers. Do people actually know this?

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[Baroness Walmsley]

My Lords, I shall speak also to Amendments 53 and 54 in the same group. Amendment 52 probes the Government’s intentions with regard to the education and care of young children in nursery and reception classes in primary and all-through academy schools. It also seeks commitment from my noble friend the Minister that academies will be expected to provide the balance, age-appropriateness and play base of the early years foundation stage to very young children.

Many children under five are now in primary schools' nursery and reception classes and it is essential that their teachers are qualified and experienced in the early years. The early years foundation stage—which I shall call the EYFS, although that is not that much shorter—provides much needed unity of principle and purpose across the range of settings. It offers a single framework to ensure quality, equality of opportunity and safeguarding. There is a real commitment among early-years professionals to this agenda.

The EYFS was introduced in the Childcare Act 2006 and has been a statutory requirement for all providers of education and care to zero to five year-olds since September 2008. It provides a clear statutory framework and standards, and although it is relatively new, its ideas, standards and approach are not. It has grown out of a long tradition of providing education and care for babies and young children under five years old and attempts for the first time to ensure that, wherever children are educated and cared for, they and their families can expect the same standard of education and care. I give credit to the previous Government for its introduction. Although I feel that it is time to renew it in the light of experience, as it is too prescriptive, it is generally a good thing and should be adhered to by all providing education to this age group.

Academies do not have to follow the national curriculum for primary and secondary schools, but it is not clear what the intention is in relation to under-five year-olds in nursery and reception classes. Perhaps I may ask my noble friend the Minister the following questions. How many of the current all-through academies provide education for under-fives and, of those, how many follow the early years foundation stage? Is it the Government’s expectation that primary academies should follow the early years foundation stage for under-fives? How will the Government ensure that under-fives receive age-appropriate, play-based education in primary academies?

Amendment 53 probes the Government’s intentions for inspection of new academies in relation to education for young children under the early years foundation stage. The Secretary of State has indicated his intention to grant academy status automatically to schools deemed to be outstanding by Ofsted, alongside an intention generally to exempt those outstanding schools-turned-academies from further inspections. However, in relation to the EYFS and provision for under-fives, I am particularly concerned about removing academies from the inspection framework, given that inspection under the EYFS is relatively new and that the main driver behind the EYFS is to improve quality and standards in early childhood education and care. I am also concerned that the emphasis on engagement with parents in the current inspection framework may be lost, with detrimental effects on some schools’ commitment to engage with all parents, which is so important at nursery age.

Under the law, all providers of education and care to under-fives must be registered on the early years register of providers and must meet the legal welfare, learning and development requirements as set out in Section 40 of the Childcare Act 2006 and associated regulations in order to remain registered.

However, schools providing for children aged three to five are exempt from the register, and EYFS provision is inspected within the main schools inspection framework. Maintained, independent and non-maintained special schools are required to be registered only in respect of any provision they offer for children below the age of three, in recognition of the need for extra safeguards for the youngest and most vulnerable children. Can my noble friend explain how young children’s welfare, safeguarding, learning and development will be quality-assured in academy schools?

Perhaps I may draw one related matter to the Minister’s attention. If there is a problem in the early years setting, there is currently a practice of the proprietors deregistering it and opening it up again as a different business, thereby expunging the history of the problematic incident and making it impossible for Ofsted to inspect whether the failings that led to it have been corrected. Indeed, some places have been reregistered several times. I give as an example the case of a nursery in Chigwell, where the two year-old daughter of Mrs Shatl Malin was accidentally hanged in the playhouse where she had been unattended for 20 minutes. The proprietors have reregistered the setting, and the parents have therefore no closure or explanation and no assurances that no such thing can ever happen again. While we have the opportunity in this Bill, I should like to ensure that no academy offering early years education can walk through this loophole by deregistering.

On Amendment 54, one of the best aspects of recent workforce development is the importance of an integrated approach to working with children and families. This is exemplified in the children’s centre model. Again, I give credit to the previous Government for introducing this way of working. In children’s centres, children under five years old and their families can receive seamless integrated services and information. These services vary according to centre, but may be very wide and serve the real needs of families. Indeed, the coalition Government intend to locate a lot more health visitors in them, which I support. I would not want the independence of academies to pull children out of the integrated structures developed under the Every Child Matters agenda, which all parties supported. This is particularly relevant in relation to safeguarding issues. Will my noble friend the Minister clarify what support will be available to academies in developing safeguarding policies and in their implementation? What connections will academies have to children’s trusts and local safeguarding children boards and what impact will there be on children’s centres and extended services where they are co-located with primary schools wanting to apply for academy status? I beg to move.

[The Earl of Listowel]

My Lords, I support the thrust of the noble Baroness’s amendments. Having visited several nurseries in the course of the Childcare Bill and followed the debates about the early years foundation stage, I believe that it is vital to have good-quality early years care. There is a real challenge in achieving that in this country; we start so far behind the Scandinavians. We have not had a strategy until recently in this area. Many of those working in it are poorly educated and poorly paid young women, and there is often a very high turnover of staff. The settings in schools may be different to that general picture, but I ask noble Lords to put themselves into the shoes of a three year-old being cared for by a woman who then goes—then another one comes and goes, and another one comes. That is a very black picture. I am sure that it is not generally the case, but there is that danger.

The early years foundation stage really helps in setting out clearly what the expectation should be and what these children should receive. In particular, every child in the nursery should have a key person. That should be the person who makes the relationship with the parent of the child and follows that child, changes the nappies and looks after that child. Others will have to take their place from time to time but, rather than the child being passed around from person to person, there is someone there with a particular special relationship with that child. That is an easy thing to lose if there are lots of poorly trained and poorly supported people and there is a high turnover of staff. Given the vulnerability of the children and the challenges to the sector, I would appreciate the reassurance of the Minister that this clear framework for practice in this area will be applied to those children in future.

[Lord Hunt of Kings Heath]

My Lords, I lend my support to these amendments, which I know at this stage are probing. I am very proud of the achievements of the last Government in relation to the under-fives and I acknowledge the kind remarks of the noble Baroness, Lady Walmsley. However, the fact is that millions of children have had a better start to life thanks to the considerable investment in free nursery education for all three to four year-olds and the creation of so many Sure Start children’s centres. My concern, which is shared by the Early Childhood Forum and others, is that it would appear that the authors of the Bill have given little thought to its effects on three to five year-olds.

The noble Baroness, Lady Walmsley, asked a number of very important questions including about the risk of removing academies from the inspection framework for the under-fives, the issues around welfare and safeguarding and the loophole over reregistration. The noble Earl, Lord Listowel, put his finger on some of the important workforce challenges that this sector faces, including issues about the lack of experience of many staff working in the sector. That is why it is so important to maintain the integrity of the early years foundation stage. I hope that the Minister can reassure us that his department has thought very carefully about these matters around early years. If not, perhaps he can give us some hope that there will continue to be national safeguards and infrastructure to ensure that attention is given to the points raised by noble Lords. This is an important matter and we will come back to it on Report if we are not satisfied that it will be dealt with effectively.

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[Baroness Perry of Southwark]

My Lords, I am unhappy about these amendments on several counts. First, they seem to impose, again, external restrictions on academies, whereas the whole object of the Bill is to take away all the impositions that have been put on them. Secondly, Amendment 72 would give the local authority an overriding say in the exclusion of pupils. Surely, if a school is to be free and able to manage its own affairs, it should not have to operate in partnership with a local authority that no longer has any statutory or financial authority over it.

I have discussed these amendments with the principal of one academy, who assures me that academies are happy to operate independently and in informal collaboration with other schools in their area, though not necessarily within the same local authority, particularly over aspects of their work which might well affect those other schools. For example, if a pupil is excluded from an academy, it might well be that another school would be the better and right place for that pupil to go. In that case there is nothing to stop Fred, the principal of one academy, calling Mary, the principal of a maintained school, and saying, “Look, we’ve got a lad here who isn’t fitting into the academy well and is behaving very badly. We’re intending to exclude him; would you be willing to take him on?”, and so on. Trusting professionals in the service to do sensible things and work together on a collegiate and happy basis is far more likely to work than all this imposition of things from outside and putting them in legislation. I hope that the noble Baroness will reflect on the lack of trust which this kind of amendment suggests.

[The Earl of Listowel]

The reassuring words of the noble Baroness, Lady Perry of Southwark, are very helpful. When I visit special institutions for children with emotional and behavioural difficulties or children’s homes, I am concerned that often one finds that the children with the most severe difficulties are pooled together in one place. They become difficult to manage, difficult for each other, and difficult for those who are caring for them. When comparing Denmark and this country, one of the differences is that Denmark intervenes and takes children into care earlier. Children’s homes are used more and there is more of a mixed bag of children in them. Thus, the temperature of the place is lowered. As a result of this provision, I would not want to see the most difficult children pushed into one place. I hope that the Minister can reassure us that further thought will be given to how we can support head teachers in academies and non-academies to work together. For example, a small amount of resources could be put into a yearly local get-together where such people would be able to speak to and to meet each other.

[Baroness Wilkins]

Amendment 97 does not sit easily with the other two amendments in this group and is on a separate area. Therefore, we are moving on. This probing amendment seeks firm reassurance from the Government on how the Academies Bill may impact on specialist support services for children with low-incidence special educational needs and disabilities. I am focusing my remarks on specialist support services for deaf children, but these issues are applicable to other children with low-incidence needs, such as those with visual impairments.

The National Deaf Children’s Society, to which I am indebted for its advice on this issue, estimates that there are more than 35,000 deaf children in England, of whom 90 per cent attend mainstream schools. However, deafness is a low-incidence need. As a result, in many schools it may be many years before a deaf child enrols. The reality is that deaf children are spread unevenly in mainstream schools across any one area. There is no reason why a deaf child cannot achieve as well as their hearing friends, provided that they get the support that they need from the start. This support is normally provided through local authority specialist support services, which cover a wide range. They include providing the school with amplification equipment, such as microphones; ensuring that there are follow-up checks and maintenance; training mainstream teachers on how to support deaf children; and, most importantly, providing direct support to families to help with pre-school language development.

These services are normally funded by the local authority, but academies will be independent from them. I am therefore seeking reassurance that deaf children will still receive the support that they need in a school system with a greater number of independent academies. Currently, in local authority maintained schools, schools funding is allocated to local authorities by the Government. While most of the money is then delegated to schools, local authorities will usually retain or top-slice some money to fund services, such as the specialist support services for deaf children. The service then provides outreach support free of charge to all local authority maintained schools in its area. Where a school becomes an academy, any money retained or top-sliced will be taken away from the local authority and given straight to academies, which will be expected to buy in any specialist support that their pupils will need. But if a child has a low-incidence need, such as deafness, the cost of meeting this specialist support to one individual academy will be proportionately greater. The economies of scale that operate at a local authority level will not exist at individual academy level. I am deeply concerned that any extra funding that academies receive will not cover the costs for these necessary services, which may result in deaf children not getting the support that they need. This is not a theoretical risk.

The National Deaf Children’s Society is already aware of a number of cases in existing academies where deaf children have gone without the support that they need. Last year, when the NDCS did a survey of local authority specialist support services for deaf children, it asked whether any academies in their areas bought in support for any deaf children who were enrolled at those academies. I am shocked that nearly three-quarters of academies did not buy in any support, which raises alarm bells as to how deaf children in these academies are being supported, if at all. Surely, that is an inefficient way of funding specialist support services for deaf children. This top-slice money that academies will receive will go to all academies, even if they do not have a deaf child on their rolls. Does the Minister share my concern that this will be poor value for money?

My amendment aims to address these concerns. The first part would amend the School Finance (England) Regulations 2008 with the intended effect of moving funding for specialist support services for low-incidence special educational needs from the schools budget to the core LEA budget. This would prevent funding for specialist support services for low-incidence needs being top-sliced and spent inefficiently in the way in which I have described. I would welcome a statement from the Minister on how the department will address this matter.

I am all too aware that local authority specialist support services in some areas are not as good as they should be. For that reason, the second part of the amendment would also give the Secretary of State the power to make alternative arrangements if this is the case. I believe that the Government need to take urgent action to set up a working group to consider whether alternative arrangements, such as parent-led services, might offer a better way in those areas of delivering such services. I urge the Minister to ensure that any such working group includes representatives of children with low-incidence needs as well as their parents.

However, any alternative arrangements need to be carefully thought through and planned to ensure continuity in the service that deaf children receive. It is not good enough simply to throw our cards in the air and hope for the best. Government figures show that deaf children are already 42 per cent less likely to do as well in their GCSEs as other children. It is vital that this Bill helps us to ensure that deaf children get the support they need, regardless of the type of school they attend. I hope that the Minister will be able to reassure me on this. Should he not do so, I will return to this issue on Report.

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[Baroness Perry of Southwark]

My Lords, perhaps I may say how much I agree with what my noble friend Lady Williams said about the perverse effect of league tables. The good instincts of many school heads that I advocated in response to what the noble Baroness, Lady Morris, said have been stifled by the imposition of league tables. The heads want to help these disadvantaged children but dare not do so in case it pulls them down the league tables, with all the perverse effects that that would have on their finances, reputation and everything else. I hope that we can continue to have faith and trust in the good instincts of those who run schools and that we can release them from the perverse effects of collecting detailed information and statistics simply for league table purposes.

[The Earl of Listowel]

Again, I support what the noble Baroness, Lady Perry of Southwark, has said. As far as I know, the best performing country, Finland, does not have league tables but relies on excellent teachers and trusts them to make the right decisions for children. As I recall, Finland also does not have exclusions, but has smaller, very mixed-ability classes.

Two things come to mind in this debate. The two amendments in the group are well related. There is the danger with academies that they will not be so well supported by, for instance, the good approach of having a child psychotherapist working regularly with teachers to talk about particular problematic children. That is a good approach, but it is easy to think that it is too expensive and a bit of a luxury and that an easier option would be to move a difficult child somewhere else. I have sympathy with both sides of the argument. Given that these things are already established, I would prefer to keep the status quo, because league tables have a perverse influence. I look forward to the Minister’s response. If he could say a little more about the plans for league tables and how they will be improved, that would be helpful.

[Lord Wallace of Saltaire]

My Lords, as my noble friend Lord Lucas said, this is a long-running problem. What we have heard from all around the Chamber this evening is that this matter concerns us all, across the parties, and that none of us is entirely sure that we have the complete and final answer. We are all aware that the early academies had an unusually high rate of exclusions. That was partly because they were going into the toughest areas and trying to reimpose discipline in schools that had lost control—there were special circumstances. I am happy to say that the figures have now come down.

We are also all aware that league tables have had a perverse effect not only on academies. I am well aware of one or two secondary schools in my part of Yorkshire of which it has been said that they have tried to avoid taking on difficult children from difficult areas precisely because of the impact that they knew it would have on their standing in league tables. I am afraid that I am unable to say anything specific about our plans on league tables; we will have to write to the noble Earl. As he will know, the question of how one can shape league tables to recognise the starting point as well as the output is being discussed, again across the parties and across the expert community, because it is recognised that league tables have had a perverse effect. We are engaged on this.

I will also say that these amendments were correctly grouped, because difficult children are often defined in all sorts of ways. I know little about the problems of educating children with autism, which is a low-incidence disability and special need. That also, in a sense, makes it easier for a school to say, “Let’s exclude that child. Let that child go somewhere else”. Therefore, there is an overlap. Children can be seen as difficult in a number of different ways.

On Amendment 72, I emphasise that academies are already required, through their funding arrangements, to take their fair share of challenging pupils through their involvement in local in-year fair access protocols. This will continue to be the case for all new academies, so they do not get out of this obligation. They should be free to co-operate with local partners in managing exclusions but, again, there is a question for the coalition of how one writes that down and in how much detail. The previous Labour Government were always in favour of prescribing everything in the most minute detail—usually twice a year, each time the name of the department or the Secretary of State changed. This, as the noble Baroness will of course admit, is a different approach.

Academies are regulated by their funding agreements, which require that they act in accordance with the law on exclusions as though the academy were a maintained school and that they have regard to the Secretary of State’s guidance on exclusions, including in relation to any appeals process. I hope that that provides assurance that academies have to follow the law on exclusions in the same way as maintained schools.

I turn to the subject of low-incidence disabilities. We recognise that this is a continuing problem, especially where there are only a very small number of young people in a district with those particular needs. Again, partnerships among schools will clearly be the best way forward.

Academies’ funding for SEN is paid on a formula basis by the Young People’s Learning Agency. If a pupil with one of the different forms of low-incidence SEN attracts individually assigned resources as a top-up to the formula funding, the local authority will pay this from its schools budget and will continue to be responsible for monitoring the provision. If the academy fails to secure such provision, it will be in breach of its funding agreement and the YPLA can ultimately investigate following a complaint. Therefore, measures are already in train. I am not saying that they will entirely resolve the problem, just as under the previous Government a number of other measures did not entirely resolve the problem. We all recognise that this is one of the most difficult issues in education in England and we will all need to continue to monitor and to work with others—