Children's Wellbeing and Schools Bill (Eleventh sitting)

Amanda Martin Excerpts

Committee stage
Thursday 6th February 2025 Public Bill Committees

[The Minister for School Standards (Catherine McKinnell)]

I rise to speak to amendment 90 and clauses 48 and 49. The clauses aim to strengthen local authorities’ existing powers to direct a school to admit a child and provide a more robust safety net for vulnerable children by ensuring that school places can be secured for them more quickly and efficiently when the usual admissions processes fall short.

Amendment 90 seeks to require the Secretary of State to publish statutory guidance as to how local authorities may exercise their direction powers impartially and in the best interests of children and young people. I note the concerns of the hon. Members that this new power may give rise to conflicts of interests in local authorities’ dealings with the schools that they maintain and those that they do not. I also agree that it is important that local authorities exercise their direction powers appropriately and in the best interests of children and young people.

I reassure hon. Members that legislation, as well as the school admissions code, already sets out mandatory requirements as to how local authorities may exercise their direction powers. They are intended for use only as a last resort and may only be used where admissions cannot be secured through the usual processes. To ensure that decisions are made in the best interests of a child, section 96 of the School Standards and Framework Act 1998 already requires local authorities to ensure that they choose a school that is within a reasonable distance of a child’s home and provides education suitable to their age, ability, aptitude and any specific educational needs that the child may have.

Furthermore, in considering which school to place the child, there are several other factors that local authorities are already required to take into consideration. For example, local authorities are unable to direct a school from which the child has been permanently excluded, or if it would mean that the school would have to take measures to avoid breaking the rules on infant class sizes. Furthermore, they are unable to direct a school’s sixth form if the child does not meet the relevant entry requirements.

In relation to a looked-after child, local authorities cannot direct a school where the child has been permanently excluded from that school previously or where the schools adjudicator deems the admission of the child would result in serious prejudice following an appeal by the school against the direction.

Furthermore, section 97 of the School Standards and Framework Act 1998 sets out further processes that a local authority must adhere to when considering exercising its direction powers. These include various requirements on consultation, including requiring the local authority to consult with the governing body of the school, the parent of the child and the child themselves, if they are over compulsory school age, before seeking to direct a school. Governing bodies are also provided the opportunity to appeal against any decision by the local authority to direct a child into their school.

Clause 48 enables the same requirements to apply equally in relation to a decision to direct an academy, including making it clear that academy trusts will have the right to appeal to the schools adjudicator against a local authority’s decision to direct their school. Those requirements will all be reflected in the school admissions code, which we intend to amend following Royal Assent. We also intend to work closely with the sector on any further changes that may be needed to fully implement the new powers.

Any change in the code will require a full public consultation and will be subject to parliamentary scrutiny before coming into effect, so I hope that the hon. Members for Harborough, Oadby and Wigston and for Central Suffolk and North Ipswich are reassured that we will take action to ensure that the statutory school admissions code will be amended accordingly and continue to set out clear guidance on how local authorities may exercise their direction powers following Royal Assent. We therefore do not consider the amendment necessary and kindly ask the hon. Member for Harborough, Oadby and Wigston to withdraw it.

I turn to clauses 48 and 49. Local authorities have statutory duties to ensure that children in their area have access to a suitable education, but the levers are currently not available to them to achieve that, as they are not always effective. That can result in too many children, many of whom are vulnerable, being left without a school place for too long. Every day lost in a child’s education is one that they cannot get back. Powers of direction are intended to be used only as a last resort in those rare circumstances in which families are unable to secure a place through the usual admissions processes.

The purpose of clauses 48 and 49 is to create a more robust safety net for vulnerable children by giving local authorities the levers they need to secure school places for children more quickly and efficiently when the usual admissions processes fall short, ensuring that no child falls through the cracks. Clause 48 extends the current powers of local authorities to direct a maintained school to admit a child and to enable them to direct academies in the same way.

Although most children will secure a place through the usual admissions processes, vulnerable and hard-to-place children can sometimes struggle to do so. In circumstances in which those children have been refused entry to or have been permanently excluded from every suitable school within a reasonable distance, the local authority has the power to direct a maintained school for which they are not the admission authority to admit that child.

However, where a local authority wishes to place a child in an academy, it currently must request that the Secretary of State uses her direction powers under the academy’s funding agreement to compel the school to admit the child. That additional step can create further delay in getting a child into school. Enabling local authorities to direct academies themselves without needing to go through the process of requesting the Secretary of State to invoke her direction powers will ensure that school places for unplaced and vulnerable children can be secured quickly and efficiently. It does not make sense for local authorities to continue to need to ask the Secretary of State to make such direction for an academy.

Clause 49 further streamlines local authorities’ admission direction processes and makes them more transparent by enabling local authorities to direct a school where the fair access protocol fails to secure a school place for a child. The fair access protocol is a local mechanism for securing school places for children struggling to secure one through the usual admissions processes. The school admissions code requires all local authorities to have a fair access protocol in place that has been agreed with local schools and specifies the categories of children, including vulnerable and hard-to-place children, who are eligible to be considered for a school place under the fair access protocol.

Clause 49 will also enable future iterations of the admissions code to specify circumstances in which local authorities are able to direct the admission of a child where the fair access protocol has been exhausted and fails to secure a place for them. It will also allow the admissions code to set out a more streamlined directions process for children who have come out of care, so as to provide these often still vulnerable children greater parity with children currently in care. As mentioned, we intend to work closely with the sector in implementing the changes to the admissions code, which will include a full public consultation and require parliamentary approval.

I hope that I have reassured hon. Members that clauses 48 and 49 will provide a more robust safety net for vulnerable children by ensuring that places can be secured for them more quickly and efficiently when the usual admissions processes fall short, minimising time out of school and reducing the likelihood of children falling between the cracks. As I have mentioned, to ensure the powers are used appropriately, clause 48 will provide academies that disagree with a decision to direct admission with a formal route of appeal to the schools adjudicator, giving academies the same route of redress as is currently available only to maintained schools. That safeguard will ensure that local authorities use their powers appropriately and place children in suitable schools where they can thrive. I commend clauses 48 and 49 to the Committee.

New clause 45, which was tabled by the hon. Members for Harborough, Oadby and Wigston, and for Central Suffolk and North Ipswich, aims to ensure that where a local authority is considering directing a school to admit a child, it does not take account of whether the school is a maintained school or an academy. The hon. Members appear to be concerned that a new power for local authorities to direct academy schools may give rise to potential conflicts of interest.

As I have mentioned, the power is intended for use only as a last resort, and may be used only where admissions cannot be secured through the usual processes. Under public law principles, local authorities are already prevented from taking irrelevant matters into consideration when taking decisions, and in most circumstances, whether a school is an academy is not likely to be a relevant factor in determining whether to direct a school to admit a child. Furthermore, as I set out earlier, the School Standards and Framework Act 1998 and the school admissions code already set out several requirements as to how local authorities may exercise their direction powers. Those include relevant factors that they must take into consideration when deciding to direct a school, as well as the processes they must follow when making a direction.

Local authorities can already request that the Secretary of State direct a pupil into an academy on their behalf, and we know from experience that local authorities use this route only where they consider that it is in the best interests of the pupil, and after careful thought and consideration about the impact on the school. However, the new right for an academy trust to appeal to the independent schools adjudicator where they disagree with a direction for them to admit a child will provide independent oversight of local authorities’ decisions to direct.

I hope that the hon. Members will be reassured that appropriate checks and balances will be in place to mitigate any risk of the misuse of the power by local authorities, and kindly ask that the amendment be withdrawn.

[Amanda Martin (Portsmouth North) (Lab)]

I am grateful for the opportunity to serve under your chairmanship, Sir Edward.

While we were in Bill Committee on Tuesday, the Education Committee was meeting—there are many people with a lot of interest in the Bill, and rightly so—to hear from three panels of witnesses. I draw the Committee’s attention to the second panel. On the panel was Sam Freedman, a senior fellow at the Institute for Government who worked at the Department for Education from 2010 to 2013 as a senior policy adviser; she is also a senior adviser to Ark schools, although was appearing in a personal capacity. Also on the panel were Daniel Kebede, who is a former teacher and the general secretary of the National Education Union, and John Barneby, who is the chief executive of Oasis Community Learning.

The witnesses did not agree on everything, but all three commented on the benefits of these provisions. John Barneby said that Oasis follows

“local authority admissions at the moment, because we believe in equity of offer, and we want to work in partnership. That is not the case everywhere…My hope is that, out of this policy, we will get to a place where there is a fair distribution of children with special educational needs and disadvantaged children across all schools, so that all schools are truly inclusive and have the capacity to meet the needs of all children.”

He thinks the Bill will go some way to doing that. He also said that there has been a risk raised around the allocation of students, particularly with falling student numbers, but he thinks that

“on the whole, local authorities act responsibly around this.”

--- Later in debate ---

[Catherine McKinnell]

It will very much depend on the local context. Obviously, it will be for the adjudicator as an independent professional to take that decision for maintained schools. To be clear, for academies it will be for the Secretary of State to end a funding agreement, and for maintained schools it will be for the local authority to determine.

[Amanda Martin]

Will the Minister confirm that the power to set place numbers includes all schools in local authority areas? It is not just academies but maintained schools. There seems to have been an idea throughout the whole of this debate that maintained schools are somehow a lower echelon of education—

[Damian Hinds]

Who said that?

[Amanda Martin]

It seems to have been implied—[Interruption.]

[The Chair]

Order. Carry on.

[Amanda Martin]

Thank you, Sir Edward. It seems to have been implied that only academies might want to expand, but local authority schools might also want to expand. If it is not right for the pupil numbers within the local authority area, it should not be allowed.

We were asked for examples of where it has happened already. In Hackney in 2024, the expansion of some schools and academies—[Interruption.]

[Catherine McKinnell]

I cannot hear.

[The Chair]

Carry on.

[Amanda Martin]

We were asked for examples of where schools have been closed. We have not even thought about small rural schools that are affected by expansion. Local authorities that represent rural communities must be able to ensure that there are schools across the county, because that is good for everybody.

Specifically on London, the expansion of some academies and schools in Hackney in 2024, particularly as part of a shift towards academisation, has contributed to the closure of certain local schools. St Mary’s Church of England primary school—

[The Chair]

Order. That is very interesting, but it is an intervention. In a Committee, you can speak as often as you like, but I think we have got the point now and the Minister should carry on with her speech.

--- Later in debate ---

[Neil O’Brien]

This is a substantive point. I am grateful to the Minister for giving way; we are doing the proper business of a Committee here. Let us be clear: the whole point of the clause is to address situations, such as those in London, where a local authority has one in eight of its primary school pupils disappearing within four years, and schools closures will be a part of that. The Minister said that this is not new, but it absolutely is. At the moment, a primary school cannot have its PAN challenged by the local authority if it just wants to keep it the same. In the future, under this clause, the local authority can say, “We want to close this school. We are going to challenge your decision to keep your PAN the same. We think you should shut.” Under this clause, the schools adjudicator will have the power to set its PAN to zero.

[Amanda Martin]

Will the hon. Member take an intervention?

[The Chair]

Order. You cannot intervene on an intervention.

--- Later in debate ---

[Catherine McKinnell]

That is the point I am making. These challenges affect local authorities right up and down the country. The research the previous Government undertook into this matter demonstrated that local authorities, which have a statutory obligation to provide suitable school places for all the children in their local area, face widespread challenges in meeting that obligation because of the challenges in the current system, which the clauses seek to address. Yes, this is a new statutory duty, which is why we are legislating, but it is not a new role for adjudicators. That is the point that I have made a number of times. I am not saying this is not a change, as we are legislating to change things, but it is not a new role for adjudicators. They are well experienced in managing many of these considerations.

The fundamental point is that school closures need to be managed very carefully through significant change or prescribed alteration processes. As I am sure the hon. Member for Harborough, Oadby and Wigston is aware, academies are maintained through contractual arrangements. The parties to the funding agreements are the Secretary of State and the relevant academy trust, and there are no third-party rights given to a local authority under that funding agreement. Any decision relating to the termination of a funding agreement sits with the Secretary of State.

The purpose of the Bill is to put a new requirement on schools, academy trusts and local authorities to co-operate on place planning and admission matters. We expect them to work together to manage the supply of school places and, where necessary, that may include making plans to close a maintained school or academy, if that is the right decision for a particular area.

[Amanda Martin]

I have already mentioned the three expert witnesses who commented on this issue. Although they probably have very different opinions on other elements of the education system, all were in agreement. Does the Minister believe that the clause, unamended, means that local authorities can perform fair place planning for all pupils, whether in rural, suburban or inner-city areas, to ensure that there is still access for all pupils and that it is done in a fair way, whether a school is maintained or an academy?

[Catherine McKinnell]

Absolutely, and it is right that where an objection is put to the adjudicator about a published admission number and the adjudicator upholds it, they consider the wider impact on the whole community—for example, how it might affect parental choice or the quality of education for children affected by any decision. The adjudicator should clearly consider other factors that may provide necessary safeguards for a school that is the subject of an objection, such as their financial or capacity requirements. As I will discuss when I turn to amendment 83, that is why clause 50 includes the power to make regulations that set out what the adjudicator must and must not take into account when taking a decision on published admission numbers that must be set where an objection to the published admission numbers is held. I hope that when we get on to the next clause, many of the concerns of the hon. Member for Harborough, Oadby and Wigston will be allayed.

We are clear that the regulation-making power represents the best approach to ensuring that all relevant actors are given due consideration by the adjudicator and that the requirements placed on the adjudicator can still be amended easily to respond to the ongoing needs of the sector and of the schools and the communities they serve. Importantly, we want to work with the sector to ensure that we have fully considered all relevant factors of concern when we develop the regulations to set out requirements on matters that the adjudicator must and must not consider when deciding on the published admission number of a school. That will ensure that the requirements on the adjudicator are clear and comprehensive.

The hon. Member for Harborough, Oadby and Wigston tabled amendment 83, which would remove from the Bill a delegated power to enable the Secretary of State to make regulations setting out factors that the adjudicator must and must not take into account when assessing the published admission number of a school or where they uphold a published admission number objection. That is relevant in the context of the hon. Member’s amendment 84, but, as I have tried to do in the discussion we have had—and as I would have already done if we had got to it—I will explain a little more our intentions for the regulation-making power and why we consider it the most appropriate way to address the issues raised in amendment 84.

It is important that the adjudicator, admission authorities and local authorities are all clear on what factors the adjudicator will take into account in her decision making, so that the decisions are made on a clear and transparent basis. In many cases, a school’s performance and parental demand for places, as the hon. Member for Harborough, Oadby and Wigston set out in amendment 84, will clearly be important factors for the adjudicator to consider when considering an objection to a school’s published admission number. However, as I have mentioned, there are many other important considerations, not just for the area but for the school itself, that must form part of the adjudicator’s decision making.

Let us be clear: these are difficult questions. They concern, for example, important matters such as the school’s capacity, the impact of the proposed admission number on the quality of education for children at neighbouring schools, and more practical matters such as compliance with regulations in terms of class sizes. Importantly, regulations to specify what the adjudicator must and must not take into account will ensure that any relevant impacts on the admission authority and school that are the subject of the objection are given due consideration before the adjudicator decides on the published admission number.

The complexity of the factors is best set out in regulations to ensure that they remain flexible and responsive to changes in any related legislation and in the wider context. For example, if we want to ensure that adjudicators take account of a school’s need to comply with infant class-size regulations, we want to be able to respond to any changes to those regulations. Similarly, if future demographic changes mean it is important for the adjudicator to think about how they consider issues such as a school’s capacity, regulations can be amended to ensure that the adjudicator takes into account all relevant considerations at that time and is not bound by outdated rules.

The regulations, and any changes to them, will be subject to parliamentary scrutiny. Including these matters in regulations will ensure that, if necessary, we can respond quickly to feedback from the sector, and where wider circumstances change, while ensuring that a clear level of rigour and parliamentary oversight can still be achieved. Given the argument I have set out, I respectfully ask the hon. Member for Harborough, Oadby and Wigston not to press his amendments.

Clause 50 provides that where the adjudicator upholds an objection to a school’s published admission number, it can specify the new PAN, which must then be included in the school’s admission arrangements. That is vital to ensure that all communities have the places they need so that children can access a local school where they can achieve and thrive.

Broadly, the ability of admission authorities to set their published admission numbers works well. In many areas, published admission numbers work effectively, and admission authorities and local authorities co-operate well to support local need. The hon. Member for Harborough, Oadby and Wigston has a concern about the clause’s impact on the ability of good schools to expand through an increase to their published admission numbers; I reassure him that the Government are absolutely in favour of good schools expanding where that is right for the local area.