Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012

Lord Hill of Oareford Excerpts

Tuesday 20th March 2012 Grand Committee

Moved by

[Lord Hill of Oareford]

That the Grand Committee do report to the House that it has considered the Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012

Relevant Document: 40th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, during the passage of the Education Act last year, we discussed the creation of the new 16-19 and alternative provision academies. As part of those deliberations, we agreed to powers allowing the Secretary of State to make further consequential amendments necessary to create a legal framework for those new institutions. At that time, I assured noble Lords that any such changes to primary legislation would be made through the affirmative procedure and therefore allow for proper scrutiny. The order we are debating makes those further consequential amendments to the primary legislation.

I am grateful to both the Joint Committee on Statutory Instruments and the Merits Committee for their careful consideration of the regulations. Noble Lords will know that neither committee commented or thought that the House’s attention should be drawn to these regulations.

There are two main purposes to the order: first, to extend to part-time or very small alternative provision academies the same legislation as applies to full-time and mainstream academies; and, secondly, to extend to alternative provision academies the same rules on religious designation as apply to PRUs—namely, that they cannot have a religious designation. Most of the amendments that the order seeks to make are to ensure that legislation that already applies to full-time alternative provision academies and mainstream academies applies equally to part-time or very small alternative provision academies. Academies are defined in legislation as independent schools, and the definition of an independent school is that it is non-maintained and provides full-time education for at least five pupils of compulsory school age, one child with a statement or one looked-after child. Given that quite a lot of alternative provision is part-time or full-time for fewer than five pupils, without these amendments alternative provision academies would not be subject to the independent schools legislation that applies to other academies.

I give just a couple of examples. Without the amendment to the Education Act 1996 in paragraph 5 of the schedule to the order, a part-time or small alterative provision academy would not be legally required to give access to a person authorised by the local authority to monitor provision for statemented pupils. Without the amendment in paragraph 21 to the Safeguarding Vulnerable Groups Act 2006, an individual would not be required to register with the Independent Safeguarding Authority to become proprietor of a part-time or small alternative provision academy.

The remaining amendments in paragraphs 9 and 28 of the schedule to the draft order relate to the religious designation and religious ethos of a school. Paragraph 9 will make alternative provision academies unable to be designated as schools that have a religious character—in line with pupil referral units.

Why are AP academies and PRUs treated differently from mainstream schools? Unlike the mainstream school system, they work on a basis whereby places are commissioned by local authorities and schools, rather than selected by parental choice. This is to help overcome a specific issue or need, after which the child would return to mainstream education, as appropriate. In those circumstances, religious designation does not make sense. Alternative provision academies will be able to have a distinct ethos based on a set of morals that are aligned with a particular faith. However, paragraph 28 provides that where alternative provision academies are registered as having a religious ethos, they will not be able to discriminate against pupils in their intake or school services on the basis of religion or belief, as independent schools can.

We have frequently discussed the failings of the current alternative provision sector, such as the poor educational results. Less than 1.5 per cent of pupils achieve five or more GCSEs at grades A* to C. We have also discussed the knock-on effect on the rest of a young person’s life. Noble Lords will be aware of the recent report on alternative provision published by the Government’s behaviour adviser, Charlie Taylor, who describes alternative provision as,

“a flawed system that fails to provide suitable education and proper accountability for some of the most vulnerable children in the country”.

It is for this reason that the Government are giving all alternative provision, including pupil referral units, the opportunity to take advantage of the greater freedoms and benefits of academy status, and thereby—we hope—to raise standards. Charlie Taylor argues, as would I, that the principles underlying the Government’s education reforms of increasing autonomy, improving the quality of teaching and strengthening accountability should improve alternative provision and, ultimately, the lives of those children who need it.

I know that everyone here wants to make sure that every child has a high-quality education. It is the responsibility of all of us, including the Government, to do everything that we can to ensure that they get it. It is in that spirit that I commend these regulations to the Committee. I beg to move.

[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?

--- Later in debate ---

[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.

Motion agreed.

Schools (Specification and Disposal of Articles) Regulations 2012

Lord Hill of Oareford Excerpts

Tuesday 20th March 2012 Grand Committee

Moved by

[Lord Hill of Oareford]

That the Grand Committee do report to the House that it has considered the Schools (Specification and Disposal of Articles) Regulations 2012

Relevant Document: 39th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, these regulations, which were considered in another place by the First Delegated Legislation Committee on 28 February, take us back to some of our debates about behaviour during the passage of the Education Act 2011. They are separate from the provisions in the Education Act that we discussed at some length in this Room last summer but they are part of our efforts to make sure that schools can provide calm and safe environments in which teachers can teach and pupils can learn.

The Government first announced our intention to strengthen teachers’ powers to search pupils, including making these regulations and giving teachers a more general search power, in a Written Ministerial Statement on 7 July 2010. Then, in our schools White Paper, published in November 2010, we said that we wanted to make sure that teachers and head teachers,

“can establish a culture of respect and safety, with zero tolerance of bullying, clear boundaries, good pastoral care and early intervention to address problems”.

Strengthening teachers’ powers to search is an important part of this process. It means that they have the powers they need to maintain and promote good behaviour in their school.

Perhaps I may set out briefly what these powers mean in practice. Authorised members of school staff can already search for knives and weapons, alcohol and illegal drugs, and they can also search for stolen items. These powers were introduced as a result of the Apprenticeships, Schools, Children and Learning Act 2009. New general search powers included in Section 2 of the Education Act 2011 extend these powers further. From 1 April, head teachers will be able to authorise staff to search pupils for any article which has been, or is likely to be, used to commit an offence or cause harm or damage to property. Authorised school staff will also be able to search for items that are banned by the school and which are identified in the school’s own rules as items that may be searched for.

The regulations that we are discussing today build on the existing provisions simply by adding tobacco and cigarette papers, pornographic images and fireworks to the list of prohibited items. I think we would all agree that none of these items should have a place in our schools. We think that in the interests of safety and for the avoidance of doubt it is necessary for teachers to have the power to search for them, confiscate them and dispose of them appropriately.

We think that giving school staff the ability to search pupils for tobacco and to confiscate it will help to protect the health of pupils. Potential hazards are obviously involved in taking fireworks into school. That is why we want to provide school staff with a specific power to search pupils for fireworks and to be able to confiscate them.

The purpose of including pornography is to ensure that schools can take effective steps to deal with the possession or distribution of pornography by their pupils. Searches could be made for any item that authorised staff members have reasonable grounds for suspecting contained such an image, including books, magazines or electronic devices. For example, if a teacher reasonably suspects that a pupil has a pornographic image on their mobile phone, the regulations would enable the teacher to search for that phone and to search its content for the pornographic image. This is a sensible approach since electronic devices are increasingly replacing books and magazines.

Some of your Lordships may have concerns about examining the content of electronic devices and the risk that staff may, for example, access data that belong to the parents. The fact that a pupil claims that the device is not theirs does not prevent staff examining it. However, in order to examine it they must have reasonable grounds for suspecting that a device contains a pornographic image. Revised departmental advice to schools will explain teachers’ obligations under Article 8 of the European Convention on Human Rights and remind them that pupils have a right to expect a reasonable level of personal privacy. The revised advice will be published on 1 April.

The regulations also set out how the additional prohibited items should be disposed of. School staff can keep or dispose of tobacco and fireworks. Giving staff the flexibility to decide whether to retain or dispose of an item means that they will have discretion to decide on the most appropriate course of action to take in any given circumstance. Pornographic images may be disposed of, unless their possession constitutes a specified offence—for example, if they are extreme or child pornography—in which case they must be handed to the police as soon as possible. Where the image is found on an electronic device, this could mean deleting the image or retaining it so that the article that contains the image can be delivered to the police. This approach is consistent with that taken in the Apprenticeships, Skills, Children and Learning Act 2009 in respect of the disposal of illegal drugs and stolen items.

The Government’s role is to give schools the freedom and support that they need to provide a safe and structured environment. Strengthening teachers’ powers to search for, confiscate and dispose of a range of disruptive items is a key part of this. The regulations specifically identify tobacco, fireworks and pornographic images as items that may be searched for. The person conducting the search would be able to use such force as is reasonable under the circumstances to search for these items if they judged it necessary to do so. The Government believe that given the intrinsically harmful nature of these items it is necessary to identify them specifically in regulations. This builds on the approach taken by the previous Government and will mean that teachers’ power to search for them is beyond doubt and does not rely on the pupil’s intention in having the item or on the item being banned by the school rules. I commend the regulations to the Committee.

[Baroness Walmsley]

My Lords, while I support the coalition commitment to giving heads and teachers the powers that they need to ensure discipline in the classroom and promote good behaviour, I cannot resist the opportunity that this statutory instrument gives me briefly to restate an opinion that I expressed many times during the passage of the Education Act 2011. This commitment is much better achieved by good-quality teacher training and good control in the classroom than by any extension of the powers to search. Also, searching of pupils should always be done with a witness and, above a certain age, should always be carried out by someone of the same gender. However, having not resisted the opportunity to say that again—I suppose there is some difference between the two parties in the coalition—I support the Government’s approach.

Looking at the regulations themselves, I notice that in Regulation 3 the items listed include tobacco and cigarette papers. Next to that I have written “health”. Item (b) is “a firework”, next to which I have written “safety”, while item (c) is “a pornographic image”, next to which I have written “equality, respect, bullying and violence”. The great big bracket that links all three together is PSHE. Therefore, I wonder whether the Minister can tell us a little about how the internal review of PSHE is going on. This is quite relevant to this regulation. It would be nice to think that if in a lawful search of pupils in schools, following implementation at the beginning of April, any of those dangerous items were found on them, they would be given extra PSHE. An understanding of the dangers inherent in having all those items in school is covered by good quality PSHE education.

I have one other point for the Minister. The department’s guidance, Screening, Searching and Confiscation: Advice for Head Teachers, Staff and Governing Bodies, is to be updated. Will he confirm that it will contain advice on children with special needs—for example, children with autism or those who the school knows may have been subjected to physical or sexual abuse? The approach of an adult to such children could cause rather outrageous behaviour which is not the child’s fault and might escalate a situation which a little understanding could prevent. It is important that teachers understand that if they are going to search children who have or have had those problems, they need to be cautious in doing so, even though it is lawful and legitimate.

[Baroness Hughes of Stretford]

I apologise to the Committee, and in particular to the Minister, for being absent at the start of the debate. I mistakenly took a phone call at the wrong time and missed the change indicated on the monitor, which I had been watching. I hope that I missed nothing crucial—

[Lord Hill of Oareford]

Obviously, the noble Baroness did.

[Baroness Hughes of Stretford]

My apologies again. As the noble Baroness, Lady Walmsley, said, we debated the substance of the policy when the legislation was debated in Committee and I do not intend to reopen it. I shall confine myself to the regulations and I want to put two particular points to the Minister. The first concerns the guidance on the use of the powers, which will be forthcoming on the back of these regulations. I should be grateful if the Minister would clarify the current position.

When the guidance Screening, Searching and Confiscation, published earlier this year, was debated in the other place, the Minister said that it would be updated to reflect the more recent changes to the law and that new guidance would be published before implementation on 1 April this year. Will the Minister confirm that? The guidance written so far, which I have looked at on the website, says nothing about what will constitute the reasonable suspicion that a teacher must have to justify a search without consent. It says:

“The teacher must decide in each particular case what constitutes reasonable grounds for suspicion”,

and gives two examples. One is hearing other pupils talking about an item, which is fairly uncontentious. If a teacher hears talk from other pupils, that is fairly obviously reasonable grounds for suspicion. The other example is that,

“they might notice a pupil behaving in a way that causes them to be suspicious”.

That is fairly wide because it could be anything. Will the Minister confirm that the guidance will make it clear, as I believe it should, that after such a search without consent, the teacher must be able to say specifically what constituted the reasonable grounds for suspicion, and that that should usually be hard intelligence or evidence rather than the teacher just feeling suspicious? For example, what would be reasonable grounds for suspicion to justify taking away and looking through a phone, a laptop or an iPad? A pupil might be behaving inappropriately in a class, fiddling with the item or looking at e-mails, but surely that alone would not justify reasonable suspicion of, for instance, the presence of pornographic images to justify a search without consent. There is a lot of grey area here, and I should like to be reassured that the guidance will help teachers to define the thresholds for suspicion in such circumstances.

Regarding another point on the guidance, I could not see any distinction in the current guidance between the approach to situations involving children of different ages—younger children as opposed to older children—in secondary schools. Will the guidance also address that issue?

My second substantive point concerns recording and monitoring the use of these powers. In the other place, the Minister said that the Government had no plans to monitor the use of the powers or to require schools to keep a log of incidents in which the powers have been used. I am particularly concerned about the powers to search without consent. I am in favour of giving teachers these powers, but this extension of powers should require schools to keep a record of the incidents in which they are used.

One may think about similar situations, for instance, in children’s homes—and I have visited very many in a previous life. I always asked to look at the incident log to see whether discipline had been used and recorded appropriately. The use of police powers requires the recording of incidents. In any part of society where professionals in authority are given powers of search and confiscation over other people, it seems only right, and a necessary and visible counterbalance to those powers—necessary though they are—that a record should be required. The Minister may come back and say something about not wanting to burden schools, but this is not about burdening schools with unnecessary requirements. Keeping a record is a reasonable and essential counterbalance to the extension of powers, and we should require schools to do so.

Similarly, there should be a requirement that data using those records be kept for monitoring, so that, for instance, any differential deployment of these powers in respect of different groups of children will be visible. We know the concern that police stop-and-search powers are used disproportionately on young black men. We would want to know—would we not?—if, however unconsciously and inadvertently, these powers of teachers could be shown to have been used differentially in relation to specific groups of children rather than others. Yet, if the information is not recorded by schools, and is not monitored by the Government and inspected by Ofsted, we will have no way of knowing just how these powers are being used, whether they are being used appropriately and whether, however inadvertently or unconsciously, specific groups of children are the subject of these powers in a differential way.

[Lord Hill of Oareford]

My Lords, I congratulate my noble friend Lady Walmsley on her ingenuity in raising some issues that are possibly within the scope of the regulations. I know her feelings on the subject, which we debated at length. The only thing that I would say is, as the revised guidance that she will have seen makes clear, the provisions that allow search by the opposite sex are very much to be used in exceptional circumstances, and the assumption is that in nearly every other circumstance that will not be the case. We had that debate previously.

So far as the PSHE review is concerned—again, the way in which my noble friend managed seamlessly to move from one of her favourite topics to another through the means of the regulation was a wonder to behold—she will know that we had hoped to be in a position at the beginning of the year to come forward with proposals on how we can improve PSHE, but the timescale on reporting back on the national curriculum generally has slowed down, and the proposals on PSHE are being aligned with that. All that I can say is that the issue is still work in progress, and proposals will come later in the year.

As for the guidance, which relates to a point made by my noble friend and by the noble Baroness, Lady Hughes of Stretford, we are on track to publish it on 1 April. However, given some of the points raised, it would be sensible if I shared it in advance of publication so that we can ensure that it deals with the issue clearly and my noble friend can see whether it addresses the question of searching children with autism, for example.

On the point about recording and monitoring, the noble Baroness was right. It is our view that we do not need to set up a detailed and complicated system of recording and monitoring. On her specific point, I understand the concern about what might be a disproportionate effect on some groups—particularly, for example, black boys. The search powers have been in place since 2007 and were extended again in 2009. The fact that we have not collectively been made aware that there is a particular problem with the way that they are exercised gives some comfort. We would rely on parents, staff and others to make their concerns known. If they were flagged up with us, we would want to act on them because, like the noble Baroness, we want to ensure that the powers are used, first, proportionately and, secondly, in an equitable fashion.

On the noble Baroness’s fair point about what is the definition of reasonable suspicion, there is no definition of reasonable suspicion, for fairly obvious reasons. There are many things in legislation that it is hard to define precisely but, over time, practice and custom grows up. We do not have plans to specify that, but I hope that the guidance which, as I said, I will happily share with the noble Baroness, will provide some help in that area so that teachers will be clear on what they are able to do and what they are not.

I hope that that gives some satisfaction and that we will be able to approve the regulations.

Motion agreed.

Education: Engineering

Lord Hill of Oareford Excerpts

Thursday 15th March 2012 Lords Chamber

[Lord Trefgarne]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I need to declare an interest: I am the former chairman of SEMTA, previously the Engineering Training Authority.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, reforms to school performance tables are intended to raise the status of qualifications and not downgrade them. We want a simpler system where qualifications have an equal value and are selected because of their benefit to pupils, rather than their league-table weighting. We are encouraging engineering employers to work with awarding organisations to develop successor qualifications to the diploma. Engineering is extremely important for the future of the British economy. That, of course, is one reason why we are expanding university technical colleges and engineering apprenticeships.

[Lord Trefgarne]

My Lords, while I understand the arguments put by my noble friend, is he aware that the proposition on the engineering diploma has received the condemnation of providers, regulators and employers alike, and now of the Business Secretary himself? Will the noble Lord therefore please reconsider?

[Lord Hill of Oareford]

I am aware that this matter has given rise to some strong opinions among those who are committed to the engineering industry. I am afraid that I am not able to give the noble Lord the commitment that he would like, because the overriding objective of trying to simplify the qualifications is to have a consistent approach across different subjects and areas, and the benefit that we think we will derive from simplification is worth striving for. I recognise that there are strong concerns. I am glad that engineering employers are talking to the awarding organisations that want to carry on offering the principal learning element of the engineering diploma, and I hope that that will continue. I urge the noble Lord, with his experience, to help us in those conversations.

[Baroness Howe of Idlicote]

My Lords, does the Minister agree that whether one GCSE equivalent or more is required to qualify, there is an even greater need to increase the number of girls who apply for this career and make it much more attractive to them, because their skills will clearly be needed much more than in the past?

[Lord Hill of Oareford]

My Lords, I agree with the noble Baroness about the importance of that, and I know that it is one of the issues that the university technical colleges are grappling with because they are keen to encourage that kind of take-up. The noble Baroness is right to remind us of that, and I hope that we will see the figures increasing.

[Baroness Wall of New Barnet]

My Lords, does the Minister agree that the comments of the noble Lord, Lord Trefgarne, supported by the noble Baroness, Lady Howe, are crucial? The Government aim to involve more women in science, technology, engineering and manufacturing, yet the diploma encouraged more women to be involved in those subjects than had previously been the case. There is a lack of understanding among employers of why the Government felt the necessity to move away from that. The diploma is recognised and valued, and I urge the Minister—as did the noble Lord, Lord Trefgarne—to rethink the position.

[Lord Hill of Oareford]

My Lords, there are two separate issues. So far as the diploma generally is concerned, the reason that the Government have taken their decision is that we do not want to favour a particular kind of qualification that then receives additional funding to support its take-up over other qualifications. We want qualifications to be driven by the interests of the children and the awarding organisations. I completely agree with the points made about the importance of making sure that employers are involved with the development of qualifications, and it is my hope and belief that employers will work with the awarding organisations on the replacement of the principal learning element of the engineering diploma, which is the core issue at stake here, and that we will have well regarded and rigorous qualifications that will encourage the take-up of engineering, other technical subjects and vocational qualifications. The route to having more people taking these subjects is to make sure that they are properly valued by employers and everyone else.

[Baroness Walmsley]

My Lords, does my noble friend agree that the quality of teaching of engineering and other science and technology subjects is important? Perhaps he will he join me in condemning the following practice. A survey was sent out to assess the demand for a 16 to 19 STEM free school, which offered an iPad as a prize for completion, and gave only one option on the question as to whether the school would be the person’s first choice. That answer was yes. What is his department doing to identify such exaggerated demand, and will he specifically ban the offering of incentives and the use of unbalanced questions?

[Lord Hill of Oareford]

On the first point about the importance of STEM subjects and making sure that there are teachers able to teach them, as my noble friend will know, we are working hard to encourage the supply of those well qualified teachers. On her second point about the free school application, I am grateful to her for bringing it to my attention. It is the first time I have heard of it. I will refer it to the officials who will be carrying out the first sift of the applications, because the important test of evidence of demand must be genuine evidence of demand for a particular school.

[The Earl of Listowel]

My Lords, does the Minister share my concern that in the latest unemployment figures, 22 per cent of 16 to 24 year-olds are unemployed —the highest percentage since records began? Does that not indicate the great importance of what he said, which is that the curriculum needs to attract and interest children of all kinds, so that they stay in education as far as they can to get the qualifications that will give them hope of a job when they complete their education?

[Lord Hill of Oareford]

My Lords, I very much agree with the noble Earl. One encouraging point is the increase in the number of young people doing engineering and manufacturing apprenticeships, for example, which has risen by 30 per cent in the past year or so. The work we are doing with studio schools and with UTCs to encourage the take-up of vocational courses is all part of that, but I agree with the noble Earl’s fundamental point that one wants qualifications and courses for children of all ranges of interest, practical or academic. They should have parity of esteem, and the way to have that is through rigorous qualifications, not pumped-up ones.

[Baroness Jones of Whitchurch]

My Lords, given that the engineering diploma takes approximately 20 hours a week to teach, whereas a traditional GCSE subject takes up to five hours a week, how are teachers expected to persuade young people to take the engineering diploma in future when it is valued at only one GCSE? It takes 20 hours, but all you get is one GCSE. Surely young people who take it will never have the opportunity to accumulate enough GCSEs to go on to higher education. The Government are effectively killing it on the vine by downgrading it.

[Lord Hill of Oareford]

I do not think that that is true. Without being too technical about it over the Dispatch Box, the particular element at issue is the principal learning element. The diploma is an overall wrapper with a number of elements which add up to seven GCSEs. Those elements are perfectly free to continue. The principal learning element is the one that awarding organisations will discuss with employers to work out how best to continue to develop qualifications. The ultimate point is that, given the support that there is for engineering qualifications from employers, when young people see that there is a chance of progression to a good job with an engineering employer, that will be one of the strongest incentives for them to study engineering and pursue those courses.

Schools: Dyslexia

Lord Hill of Oareford Excerpts

Wednesday 7th March 2012 Lords Chamber

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, early identification of literacy difficulties, including dyslexia, relies on the regular monitoring of children’s progress. We are investing in specialist dyslexia support for teachers, including initial teacher training, to help identify dyslexic pupils earlier. The new year one phonics screening check to be introduced this June will identify children who have not acquired phonic skills to the expected standard and help flag up those who may have additional needs, including dyslexia, and who would benefit from further support.

[Lord Storey]

I am grateful to my noble friend for that Answer. As he rightly says, early identification of children with dyslexia is hugely important. However, he will be equally aware that very few primary teachers are qualified to carry out diagnostic testing, so that when referrals take place, they take a long time to sort out. Will he consider including as part of initial primary training a unit of training that is linked to the diagnostic assessment of dyslexia?

[Lord Hill of Oareford]

I agree with my noble friend about the importance of teacher training in order to address these issues and he is quite right to say that we need to make sure that there are teachers with those skills in primary schools. The new standards we are setting for QTS include an emphasis on the ability to teach a range of special needs not specifically around dyslexia. I understand the particular point he makes, but so far we have opted to take a broader approach and then support teachers with improved materials and networks of either teaching schools or charities. However, I take his point about the importance of making sure that primary schools have the skills that they need.

[Baroness Morgan of Ely]

Is the Minister aware that, in order to diagnose dyslexia, very often parents are asked to pay privately for that diagnostic testing to take place at a cost of £500? That is way beyond the means of many individual parents. We are therefore creating a two-tier system for those people who are able to afford that diagnostic testing and go privately, because it is not being done in many of our primary schools at the moment.

[Lord Hill of Oareford]

One of the issues that underlies this is the question of what diagnostic test is appropriate. One point that came out of the Rose review is that it did not recommend a specific diagnostic text because there are differences of opinion about which is the most effective. In terms of the support that is available, that review talked about a tiered approach to identify children with dyslexia and give them the support they need—through the SENCO and then other support that might be possible. I understand the noble Baroness’s basic point about funding. The funding that we have put into special needs and central support through local authorities is still in place, but I understand the point that the noble Baroness makes.

[Lord Walton of Detchant]

My Lords, does the Minister agree that dyslexia is just one of a group of specific learning difficulties which include, for example, dyspraxia, which is loosely defined as very serious clumsiness, and dyscalculia, which is difficulty in calculating? These are often misconstrued by teachers as representing global handicap whereas the individuals in question are often in other respects highly intelligent. What is the availability now of people with adequate qualifications in educational psychology who are likely to help in identifying early the affected individuals so that appropriate remedial measures can be adopted?

[Lord Hill of Oareford]

I agree with the noble Lord that there is a range of conditions, and he listed some. The basic approach in trying to identify them early and put support in place applies to those as it does to dyslexia. The Government have put funding in place to recruit and train 120 additional educational psychologists, which I think is the number that local authorities recognised that they needed as things stand. I hope that that is part of an answer, but I agree with the noble Lord that it is important that the training talked about by my noble friend Lord Storey and early identification extends to all those specific learning difficulties.

[Lord Campbell of Alloway]

Is my noble friend aware that this is a very serious problem that arose more than 30 years ago as reported in the Law Reports? It has been raised in this House on more than one occasion over those 30 years and nothing has been done about it by any Government.

[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.

Schools: Curriculum

Lord Hill of Oareford Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Rennard]

To ask Her Majesty’s Government whether they will take steps to prevent the booklet Pure Manhood: How to Become the Man God Wants You to Be being used as part of the school curriculum.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, the Government take the issue of homophobia in schools very seriously. This and other forms of bullying or discrimination are of course covered by the Equality Act 2010. However, in passing the Equality Act, curriculum materials were excluded, as a ban could inhibit classroom debate and the illustration of different viewpoints. We have no plans to change the position reached in 2010.

[Lord Rennard]

My Lords, can the Minister then tell us what specific actions the Government might consider to prevent the distribution in any school of literature that is clearly homophobic, undermines HIV prevention campaigns and is likely to incite further homophobic bullying?

[Lord Hill of Oareford]

My Lords, the Government are extremely clear that material used for the purpose of inciting homophobic bullying would be completely improper. The Government would want to take action; it would fall foul of the Equality Act and various other pieces of legislation. The question is whether we should ban all materials, whatever they are, to which any of us individually might take exception. The position that was reached in 2010 on the Equality Act seems to me right. It draws a distinction between how children are taught and what goes on in schools—and it is clear that there should not be that kind of behaviour—and the use of different kinds of material from which, used properly, people could conclude that material of the sort my noble friend mentioned was full of all sorts of errors of the kind to which he referred.

[Lord Howarth of Newport]

My Lords, have I been wrongly under the impression that in this country we no longer ban books or, indeed, burn them? If equality legislation, while enacted in the name of social progress, has the effect of dragging us back to that illiberal state of affairs, may there not be a case for reviewing the relevant aspects of the legislation?

[Lord Hill of Oareford]

The point that I was trying to make—perhaps not very clearly—was that the precise point reached about curriculum materials in connection with the Equality Act in 2010 was that it would not lead to the conclusion which the noble Lord and I would want to avoid: that is, that materials to which individuals might take exception would be banned. We absolutely do not want to get to a point where that happens; those days—from whatever point of view that is taken—are fortunately past. Because of the exemption in the Equality Act, that situation does not arise.

[Baroness Walmsley]

My Lords, is not using this particular document in schools not completely contrary to the department’s guidance, which bans the use of inappropriate materials in sex education classes? In a country where three young men have recently been jailed for distributing leaflets promoting hatred of homosexual people, is it not clear that this document is inappropriate and therefore against the department’s guidance?

[Lord Hill of Oareford]

My noble friend is right that the Government issue clear guidance as to what materials are appropriate. If parents, pupils or others are concerned about the use to which particular materials are put, then they have every right to complain to the school, to us, or to the YPLA in the case of an academy. Ofsted can have a look, and we can take a view as to whether the material is being used inappropriately. If the material to which both my noble friends refer were being used to make the point that this kind of view is a minority view, that would seem to be a perfectly proper use to which it could be put.

[Baroness Jones of Whitchurch]

My Lords, I think it is important to clarify this. Is the Minister aware that the Explanatory Notes written by his own department to accompany the Equality Act made it clear that the curriculum is covered by the Act? This would obviously outlaw any activity—such as the document we have been talking about this afternoon—which could lead to discrimination on the grounds of sexual orientation or potentially encourage homophobic bullying. Can he please clarify once and for all the status of this document? A public clarification on this could, perhaps, lance the boil of some of the controversial debate taking place on this subject .

[Lord Hill of Oareford]

I hope I have explained, but if I have failed I will try to make it clearer. My understanding is that there is a clear distinction between what is able to be taught in schools and teaching that encouraged homophobic bullying or inappropriate behaviour of any sort, which would clearly fall foul of a range of different pieces of legislation. That is clearly wrong and we would deplore it. However, the ban on that kind of behaviour and what is done in lessons does not extend to particular source material. For example, there may be people who think that the “Merchant of Venice” as a script, a text or a document encouraged anti-Jewish sentiment. Should that be outlawed? No, it clearly should not. That is the distinction I am seeking to draw between the use to which materials are put and the materials themselves.

[Lord Adonis]

My Lords, has the Minister read the book and does he have a personal view on it?

[Lord Hill of Oareford]

As it happens, I have read the material to which the noble Lord referred. Many views expressed in it are not ones to which I would subscribe. However, there are many pieces of information, material and literature that contain views to which I do not subscribe, and I do not have a great desire to ban people who hold views different from mine.

[Lord Avebury]

My Lords, is it not taking a sledgehammer to crack a nut to ask parents or others who object to homophobic material being used in schools to apply to Ofsted or take action under the Equality Act?

[Lord Hill of Oareford]

I am sorry; I did not hear the beginning of that question.

[Lord Avebury]

The noble Lord implied in an earlier answer that the only remedy that a parent had if they objected to the use of homophobic material in the classroom was to apply to Ofsted or bring proceedings under the Equality Act. Is that not taking a sledgehammer to crack a nut?

[Lord Hill of Oareford]

I hope that I said that there was a range of routes. Those options are at the extreme end of the routes. Complaints may also be made to the school, the governing body and the department, and to the YPLA on behalf of the department.

Citizenship Education

Lord Hill of Oareford Excerpts

Tuesday 14th February 2012 Lords Chamber

[Lord Harries of Pentregarth]

To ask Her Majesty’s Government what is their evaluation of current policies on citizenship education.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, Ofsted reported in 2010 that citizenship education is improving. Our reforms are designed to build on this by giving greater autonomy to schools. The national curriculum review is aiming to prescribe a core of essential knowledge, enabling schools to teach a wider curriculum that meets their pupils’ needs. Our recent publication Positive for Youth will help to ensure that young people have opportunities to realise their potential, including through becoming active and responsible citizens, as will the development of the national citizen service.

[Lord Harries of Pentregarth]

I thank the Minister for his reply and particularly for reporting that citizenship education in schools is apparently improving. Does he not agree, that at a time when the world is so turbulent and our own societies are under such strain, it is more important than ever that our young people should have a solid grounding in the responsibilities and rights of citizenship within a democratic framework? Further to the Prime Minister’s Answer to a Question in the other place on 11 December, what assurance can the Minister give that this can actually be achieved when there is such widespread suspicion that, as a result of changes to the curriculum, citizenship is going to be marginalised and downgraded?

[Lord Hill of Oareford]

I agree with the noble and right reverend Lord about the importance of citizenship. Although the expert panel that reported to us in December suggests that citizenship should form part of the basic curriculum rather than the national curriculum, the first sentence in its report emphasises the importance of citizenship and I very much share that view. The issue—and this is true of a number of subjects that are subject to the national curriculum review—is the extent to which we need to be prescriptive around programmes of study. We will reflect upon what the expert panel has said and take other representations into account, and then bring forward our proposals in due course in the light of that.

[Baroness Walmsley]

My Lords, given that the Secretary of State for Education has said that citizenship courses are pregnant with powerful knowledge, is there any possible excuse for not insisting that every child has the right to study this subject, especially since we are trying to get more of them to use their vote?

[Lord Hill of Oareford]

I agree with my noble friend that we should want every child to be able to study citizenship. One aspect is the importance of knowing about voting, as my noble friend says, but there are many other benefits of learning about citizenship as well. The issue is not its importance as a subject but how it is best delivered in the curriculum.

[Baroness Massey of Darwen]

My Lords, does the Minister agree that there is a severe overlap between personal, social and health education, and citizenship? Where exactly do we stand in relation to the delivery of PSHE and citizenship? How will they both be inspected so that evaluations can be made?

[Lord Hill of Oareford]

I agree with the noble Baroness, Lady Massey, that there is an overlap between the two, particularly at primary level. On where we have got to with our review, I know that she is keen for us to get to the sticking point. However, because of our need to take into account the report from the expert panel, the timescale for responding has moved back a little and we need to dovetail the PSHE review with the overall national curriculum review. We will bring that forward in due course.

[Lord Ramsbotham]

My Lords, what steps are being taken to increase citizenship education in young offender institutions and other places where children are held in custody?

[Lord Hill of Oareford]

On the specific details of what is happening in institutions—I recognise the noble Lord’s concern about that, and I agree with him on the importance of this in prisons and young offenders institutions—if I may, I will follow this up with my colleagues to see if I can help him with some more specific information about those programmes.

[Lord Morgan]

My Lords, is the underlying problem here not the general lack of discussion of citizenship as an idea in this country? Citizenship as a concept is absent from our standard textbooks on the constitution. This is very different from the republics of the United States and France. Is this not a serious matter?

[Lord Hill of Oareford]

My Lords, your Lordships’ House is a good example of an institution where we frequently discuss questions such as the meaning of citizenship and its importance. I know that many Members of this House take part in the Lords outreach programme and explore exactly these issues with children; so far about 30,000 pupils have been seen by Members of your Lordships’ House as part of that programme. We need to explore these issues. The thought at the back of the noble Lord’s mind is probably the distinction between us being subjects and citizens, and I would be happy to explore that with him on another occasion.

[Lord Laming]

My Lords, does the Minister agree that there is a connection between the first two Questions that have come before the House today? Some of the issues that were addressed by the first Question relate to second and third-generation children. Would it be possible to include in citizenship education the rights of children in this country and, more particularly, the ways in which they can get help if they are subject to exploitation or abuse?

[Lord Hill of Oareford]

I agree with the noble Lord that there is a link between the two Questions: they are linked fundamentally by our values as a society and the values that we want our children to have. Part of that can be explored through the teaching of citizenship, part of it is done through civil society generally and part of it through families. Part of the answer to the question—and to the last part of the question about inspection asked by the noble Baroness, Lady Massey, which I failed to answer—is that the requirement to look into the spiritual, moral, social and cultural development of a child through the Ofsted framework provides an opportunity to explore these issues.

[Lord Dholakia]

My Lords, has the Minister undertaken any evaluation of the citizenship ceremonies that take place when people qualify for UK citizenship, which were quite rightly introduced by the previous Administration, and what has been the outcome of that evaluation?

[Lord Hill of Oareford]

I will need to follow up on evaluation with my noble friend. I agree with him that those ceremonies should be able to play an important part in addressing some of these questions. I am not sure what the precise evaluation is but I will ask and write to him.

Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Lord Hill of Oareford Excerpts

Monday 23rd January 2012 Lords Chamber

Moved By

[Lord Hill of Oareford]

That the draft Order laid before the House on 7 December 2011 be approved.

Relevant documents: 36th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 16 January.

Motion agreed.

Schools: Grammar Schools

Lord Hill of Oareford Excerpts

Monday 16th January 2012 Lords Chamber

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, through the revised schools admissions code we seek to give all schools, including grammar schools, greater flexibility in determining the number of places they wish to offer to their communities. This should help to ensure that parents are increasingly able to have the offer of a place at a good and popular school, whatever its type.

[Baroness Jones of Whitchurch]

I thank the Minister for that reply. Will he confirm that it is now the Government’s policy that existing grammar schools can expand their size or create satellite schools in neighbouring areas? Is he concerned that well run state schools could be forced into a battle for survival as nearby grammar schools attempt to cherry-pick the best performing pupils? What advice would he give to parents of children who fail the 11-plus or would prefer their children to attend non-selective schools, and who are no longer able to object to grammar school expansion under the new schools admissions code?

[Lord Hill of Oareford]

My Lords, first, the Government have not changed the rules governing satellite sites and the possibility of that. They are the same rules that were in place under the previous Government and the admissions code does not affect them. With the admissions code generally, we are trying to get to a point where it is possible for all kinds of schools—where there is popular demand for them and where there are good and strong schools—to be able to grow in response to parental demand. We did not think that it was right to exclude from that greater freedom the small number of selective schools in the system.

[Lord Cormack]

My Lords, does my noble friend accept that many of us who had the advantage of a grammar school education believe that the destruction of the grammar schools is to be deeply regretted? Therefore, will he accept that the policy that he has enunciated today will give modest encouragement to many people, and rightly so?

[Lord Hill of Oareford]

My Lords, I think, and hope, that the policy I have enunciated today is a consistent and pragmatic approach to how we can try to get more choice into the schools system for all kinds of schools. This change to the admissions code makes a modest contribution to that, but we think it is right that that should extend to grammar schools, as it does to all other types of school.

[Baroness Walmsley]

Will my noble friend join me in congratulating Bradford Girls’ Grammar School, which has decided to abandon selection, to become an academy and accept the statutory admissions code, and thereby to return to its roots—providing a good education to all girls locally?

[Lord Hill of Oareford]

I am very happy to join my noble friend in extending congratulations to that school and to all others. I am glad that they are able to take advantage of the freedoms that the Government have provided to choose academy status and to decide what they think is the best way forward. Clearly, we know that a large number of schools—I would point, obviously, to some academy schools—have done extremely well without selection. The Government’s priority is to make sure that children on free school meals are given a decent education and that we address the gap between rich and poor.

[Lord Flight]

My Lords, does the Minister agree that able children should be able to go to academically good schools, whether they are grammar schools, academies or new independent schools, and that it is not only the right thing for them but in the national interest to make sure that the ability is coming up to run key aspects of the nation’s life?

[Lord Hill of Oareford]

I agree with my noble friend. The point of what we are trying to do is to make sure that there is a decent education system that can stretch and provide a good education for children of all abilities and aptitudes, including the bright and academically gifted. As it does, we are trying to increase the provision of university technical colleges and studio schools for children who are of a different bent.

[Lord Grocott]

Would not the Minister acknowledge that these really were the bad old days? A decision was made whether children, at the age of 11, should go into a form of education that would in most cases determine their life chances thereafter—their income, capacity to join professions and a range of other possibilities? The other not half but three-quarters of children, or in some cases even 90 per cent—the percentage varied almost randomly according to which local authority area you happened to live in—were told, at age 11, “This is how the rest of your life will operate. We’ve made a judgment. You’re not as able as the rest, and therefore your life chances will be diminished”. We do not want a return to those bad, bad old days.

[Lord Hill of Oareford]

My Lords, the point I was trying to make is that we want a system that provides opportunities for children irrespective of their background, gives them the chance to get on, whatever their age and stage, and gives them repeated chances to get on. To that extent I agree with the thrust of what the noble Lord said. For some that will be an academic route; for some it will be a technical route; for some it will be a vocational route. We want to move away from the idea of one size fitting all and have a more diverse system that responds to what children need.

[Baroness Farrington of Ribbleton]

Does the Minister accept that there are those who attended selective schools who did not find them helpful? I ask him to remember that when, at the age of 13, I was asked by my careers teacher in a girls’ grammar school about my ultimate aim in life and I said, “To become a Labour politician”, I was asked whether I was being deliberately insubordinate.

[Lord Hill of Oareford]

I am not sure that how the noble Baroness has turned out would have been affected by any educational system.

Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012

Lord Hill of Oareford Excerpts

Monday 16th January 2012 Grand Committee

Moved By

[Lord Hill of Oareford]

That the Grand Committee do report to the House that it has considered the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2012.

Relevant document: 36th report from the Joint Committee on Statutory Instruments.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, when we discussed the general principle of testing the use of direct payments for special educational provision on Report on the Education Bill back in November, I am glad to say that there was a broad welcome for the measure from all sides of the House. However, there was a suggestion from the noble Lord, Lord Touhig, that the detail would merit further scrutiny and that the affirmative resolution procedure would be the right way forward. That was a suggestion that I was happy to adopt, and I am glad that we have an early opportunity to discuss this important order today.

I also put on record my thanks to the noble Lord, Lord Rix, for the attention that he has personally paid to this issue since November and for the helpful exchanges that he has had with my honourable friend Sarah Teather. I also thank the Special Educational Consortium for the way in which it has worked very constructively with officials to look at some of the detail. We have benefited from its advice as well.

As noble Lords know, we said in the Green Paper, Support and Aspiration, that we want to give every child with a statement of SEN or in a new single education, health and care plan, and their family, the option of a personal budget by 2014. That will help give families more of a say in decisions about the support services they use. We have already set up 20 pathfinders to look at improving assessment processes and developing personal budgets for parents. What we are not currently able to do is test the contribution that direct payments for special educational services could play in empowering families. We can do that for health and social services, but not for education. By passing this order, we will also be able to trial direct payments for educational services as part of testing personal budgets across health, social care and education which, if we want to bring all the services together in a more integrated way, seems to be the logical next step. We propose that the pilot should initially run for 14 months until March 2013, with the option to extend for a further two years after that point, if necessary. This is in line with the Green Paper pathfinder testing period.

During our debate in November, noble Lords sought reassurance on a number of points. Let me try to deal with each of them. The noble Lord, Lord Touhig, sought reassurance on the potential impact of direct payments on services to other children and young people with disabilities and SEN. The issue was also raised by the Special Educational Consortium during its discussions with officials from the department. We recognise the importance of this issue not just in terms of the viability of services, but also as an equalities issue. So we are clear that the benefits that direct payments may deliver to those who choose to receive them must not be achieved at the expense of other service users.

That is why we have included the requirements set out in paragraphs 11(c) and 17(f) of the order, which require the local authority to consider the potential for any adverse impact on other service users before entering into any individual agreement on a direct payment and to stop making direct payments should that become apparent at a later date. We recognise that there needs to be a careful balance struck between achieving our aim to give families greater choice and control and protecting existing services. We will need to work through this issue, as and when it arises, with the authorities taking part in this pilot.

In response to questions raised about securing a direct payment, we have sought to give greater clarity to the process for agreeing a direct payment and the provision that it can be used to purchase. We have linked the offer of direct payments to the making of a new or amended statement or the carrying out of a learning difficulties assessment to ensure that the question of whether direct payments will be made does not affect the existing statement and assessment process.

In addition, we have included a requirement to reach agreement about the goods and services which are to be secured by means of the direct payments and a requirement to obtain the written consent of the proposed recipient and, if different, the parent or beneficiary. The written consent must specify the agreed provision and the amount of the direct payments, including whether they are to be paid in a lump sum or in instalments.

Following questions from the noble Baroness, Lady Jones of Whitchurch, about support to families, we have included requirements in paragraph 19 of the order for authorities to make arrangements for a person receiving direct payments to obtain information, advice and support and provide them with written information about organisations that may be able to offer advice and assistance in connection with direct payments. This is an important point, and I am grateful to the noble Baroness, Lady Jones of Whitchurch, for raising it.

Pathfinder authorities will need to work with independent organisations to test how this advice and guidance can be delivered most effectively. A key objective of our Green Paper pathfinders overall is to explore how the voluntary and community sector can be used to improve access to specialist expertise and to introduce more independence to the system.

We have learnt from the individual budgets for disabled children pilot, which began under the previous Government, that, with effective support, advice and information, personal budgets can be accessible to families of all backgrounds. We will work with the authorities taking part in this pilot to ensure that they benefit from the experience of those individual budget pilots. To this end, we have included the individual budget pilot authorities in this pilot scheme alongside those taking part in the Green Paper pathfinder programme.

Overall, we are clear that there is much to learn and work through in the implementation of direct payments for special educational provision. This pilot scheme will allow us to do this as a coherent part of the testing of the reforms being undertaken by our Green Paper pathfinders. This includes the work that they will be doing on personal budgets, of which direct payments are just one method of delivery, and their wider work on the new single assessment process and education, health and care plan. We have made available to both Houses a section of the Green Paper consultation response relevant to personal funding and direct payments.

Finally, I would like to repeat the reassurance I gave during our debate on the primary legislation. The pilot scheme will need to be subjected to proper evaluation if we are to learn from it. We are working on the detail of that evaluation at present, but I can confirm that we intend it to be undertaken by an independent research company and to form a distinct but coherent element of the wider evaluation of the Green Paper pathfinder programme. I am happy to repeat my commitment to sharing those findings as we go along.

To sum up, I think that the previous time we debated this we all agreed on the direction in which we are keen to travel, but we certainly recognise that a number of difficult questions and issues are still likely to arise as we go along that way. I believe that this order provides a framework within which we can explore and, I hope, find ways to address those questions while ensuring that appropriate safeguards for families and the public purse are maintained. I beg to move.

[Lord Rix]

My Lords, I thank the noble Lord, Lord Hill, and his ministerial colleague Sarah Teather, the Children's Minister, who I previously met last autumn along with a delegation from the Special Educational Consortium to discuss in more detail the statutory instruments in relation to direct payments for special educational needs in the various pilot areas. I welcome the constructive and positive dialogue and correspondence with the noble Lord, his ministerial colleagues and various officials in his department. I believe that the statutory instrument, as laid, is much improved as a consequence of that process.

However, there remain a number of points on which I continue to seek clarity. For example, I seek assurances that if people with a learning disability are the recipients of direct payments, it will not lead to a reduction in the level of resources available for the provision of their education. I believe there is a genuine risk of this. In the field of social care, I am aware that personal budgets have sometimes been used by local authorities as an opportunity to try to reduce their costs. We must not allow this to happen with direct payments for SEN, which is why it is so important to get the statementing process right.

I also welcome the Government’s inclusion of paragraph (10) in Schedule 1 to the order, which requires local authorities to agree the amount of direct payment with the recipient in advance and to obtain their consent in writing. However, it is important to bear in mind that many statements of SEN and learning difficulty assessments are not sufficiently well written to allow proper calculation of the cost of the services they describe. For example, a statement may say, “Regular input from a speech and language therapist”, when it should say, “Three hours input from a speech and language therapist per week”. It would be impossible to calculate an amount that correlates to regular input, and in practice this would be down to negotiation between recipients and the local authority. In these cases, parents or young people might agree to accept a direct payment that is not sufficient to purchase the support which is actually needed. Therefore, I would like the Government to consider how they could ensure that the provisions set out in a statement of SEN are properly quantified and specified before a direct payment for that statement is agreed upon.

The Minister will also be aware that concerns were previously raised, as he remarked, about the impact of direct payments on the SEN services provided by local authorities for other children and young people in their area. I am uneasy with the requirement in paragraph 17 of Schedule 1 that if an “adverse impact” is made on these services, the local authority would stop making the direct payments. This could potentially lead to unintended consequences. For example, what steps will be put in place to safeguard the interests of the children concerned if a direct payment is suddenly ceased? What guarantees are there to ensure that the resources allocated for the provision of SEN are not misdirected elsewhere? What steps will be taken to ensure that local authorities do not deliberately underfund direct payments so that the payments can be withdrawn soon after? I also seek assurances that the evaluation of the pilots will fully consider these issues.

I look forward to the Minister’s response to the various concerns raised about this order during today’s debate, and I hope that officials in his department will be prepared to continue working with representatives from the Special Educational Consortium as we move forward on this matter.

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Walmsley]

What is the mechanism for challenging a local authority’s decision about this? Let us say that a local authority says either, “You, Parent A, are not capable of handling an individual budget, therefore we are not going to give it to you”, or, “We are not going to give you an individual budget because we think it would have a damaging effect on our ability to deliver services more widely”. There are two possible reasons there where they may make that decision. Is it the local authority ombudsman to whom the parent would go if they were not satisfied with that decision, or is there some other challenge mechanism?

[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.

[Lord Low of Dalston]

At the risk of detaining him, may I ask the Minister a further question not unrelated to those which have just been raised where there is a dispute between the parent and the local authority? My question is not about whether to make a direct payment but more about the quantum. Has the department considered the implications for the special educational needs tribunal and whether some provision needs to be made for people to appeal to the tribunal about the quantum of provision? It is not to be imagined that there will be total unanimity all the time between parents and local authorities on what the level of direct payment should be. At the moment, there is provision for parents to appeal to the special educational needs and disability tribunal about the level of provision being made. Since the direct payment is the analogue of that provision, is there going to be an opportunity for parents to appeal to the tribunal where they wish to dispute the level of direct payment the authority is willing to make?

[Lord Hill of Oareford]

I do not believe that there will be a direct right of appeal to the tribunal in connection with direct payments—I guess that there would in terms of the overall provision, as is currently the case.

I am conscious that I may not have picked up all the detailed questions, for which I apologise. Because I want to address all these concerns, I will go through this with officials tomorrow and, if I have failed to pick them up, I will come back. It is generally the case—which I hope noble Lords will find reassuring—that we will go forward in the way that we have since September through November; we are committed to working closely with the Special Educational Consortium and others with expertise in this area to get these pilots right. I think I am right in saying that, some of these proper detailed questions not withstanding, there is support for these pilots. I hope that we can go forward with them. I will share the evaluation with noble Lords as it comes forward over the next months. With that, I hope that we can agree this order.

Motion agreed.

Disabled People: Access to School Examination System

Lord Hill of Oareford Excerpts

Wednesday 21st December 2011 Lords Chamber

[Lord Addington]

To ask Her Majesty’s Government what steps they are taking to ensure that all those with recognised disabilities can access all parts of the school examination system.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, qualifications need to be designed and delivered so that disabled candidates can demonstrate their full knowledge, skills and understanding. That is why the Equality Act 2010 imposes duties on awarding bodies to make reasonable adjustments to qualifications such as GCSEs. We and the regulator Ofqual seek to ensure that the qualifications system provides for appropriate reasonable adjustments to be made for disabled candidates wherever this can be done without weakening the qualification.

[Lord Addington]

I thank my noble friend for that reply. Does he agree that the impression given in an article in the Sunday Times last month that a lot of schools were effectively trying to get around the system and get an advantage for their candidates by going for 25 per cent extra time was untrue? Will he take the opportunity to explain exactly what advantage 25 per cent extra time is to a candidate who does not know the answer?

--- Later in debate ---

[Lord Hill of Oareford]

My Lords, the point about the Sunday Times article, which my noble friend has discussed with me, is that it created the impression that there have been big changes to the system of reasonable adjustments to allow pupils with disabilities to have extra time. In fact, the article was misleading in that regard, in that what the JCQ has been changing is the need for evidence that pupils satisfy the requirement. The reason for that is to make sure that the extra time made available and other reasonable adjustments help those who most need it and to make sure that the system has integrity.

[Baroness Butler-Sloss]

My Lords, is the Minister aware that there are genuinely disabled students who have great difficulties with the examination boards, which will not take account of medical evidence? I know of an example of a girl who cannot see properly but the exam board is not providing the exam papers in such a way that she can read them and will not accept her very distinguished medical evidence. It is an extremely serious situation.

[Lord Hill of Oareford]

My Lords, if the noble and learned Baroness would like to speak or write to me about that example, I shall see if there is anything that we can do to follow it up with the individual examination board. These are matters for the individual boards but I should be happy to pursue them.

[Lord Pearson of Rannoch]

My Lords, do the Government agree that special schools can be very important in encouraging pupils with a number of disabilities to reach their full ability? What are the Government doing to encourage special schools, where appropriate?

[Lord Hill of Oareford]

My Lords, I think that the point underlying the noble Lord’s question is the extent to which the Government have a view as to whether they are trying to lean, as it were, on parents regarding whether their children should be educated in mainstream or special schools. Our general view on that is that one should seek to leave those decisions as much as possible with parents. There are some cases where parents are keen on their children being in mainstream schools, because they benefit from that; there are other cases where special provision is clearly the sensible way. We want to have both. We are trying to increase the establishment of new special schools as part of our free schools policy, and we will continue to do that.

[Baroness Walmsley]

Could I ask my noble friend whether there are any sanctions available against schools that might be found to have been behaving wrongly in this matter? Do the Government intend to follow up and scrutinise the workings of this new guidance over a period of time to ensure that students with genuine disabilities are not penalised by the new wording of the guidance, and that they continue to get the help they need with their exams?

[Lord Hill of Oareford]

My Lords, as my noble friend says, it is extremely important that children with genuine disabilities get the extra leeway that they need. I do not believe that there are sanctions against schools that might be trying to push the rules of the system, but I will check that point. The responsibility for the overall integrity of the system rests with Ofqual, but I agree with her that we all need to make sure that this new guidance operates properly in the way that is intended. I am sure that my honourable friend Sarah Teather will be keeping such an eye on it.

[Baroness Farrington of Ribbleton]

My Lords, in taking the Education Bill through your Lordships’ House, the Minister stressed that free schools could employ teachers without qualifications. Can he give a categorical assurance that, were the Government to allow special schools to be free schools, they would not be free to employ people who are unqualified in special educational needs but could employ only properly qualified teachers?

[Lord Hill of Oareford]

When we were having our debates, I am not sure that I said that I was in favour of free schools being able to employ teachers without qualifications—it was a point about qualified teacher status, which is a slightly different thing. I would not want teachers to be employed without qualifications. On the noble Baroness’s main point about special free schools, we intend that in special free schools teachers would have to have qualified teacher status.

[Lord Lucas]

My Lords, can my noble friend arrange for the information about how many concessions are made to each school to be made publicly available rather than being locked up in the exam boards, so that we can all see whether particular schools are taking excessive advantage?

[Lord Hill of Oareford]

My Lords, I am not sure whether the Government can require that information of the examination boards. I understand the point that lies behind my noble friend's question; I myself asked to see evidence of whether there was disparity in practice between independent and maintained schools, for example. I am told that we do not collect the information and I am not certain that the qualification boards collect it either, but I will make inquiries.