Education and Adoption Bill

Baroness Sharp of Guildford Excerpts

Tuesday 10th November 2015 Grand Committee

[Baroness Perry of Southwark (Con)]

The noble Earl’s concern for vulnerable children is well known and entirely to his credit, but I wonder if he would acknowledge that the alternative to failing and failing and failing again is to succeed academically. The one thing which has bedevilled educational attainment over many decades has been low expectations: saying, “What can you expect? It is because of their miserable backgrounds and troubled families”, and all the rest of it. The answer is that we must have expectations. These young people deserve to achieve. I agree entirely with the noble Earl that pushing them too hard, too soon can be counterproductive, but the alternative of just sitting back and saying, “Well, they have such awful backgrounds, they are so vulnerable and they find life so difficult that we must not push them at all”, is something I could not go along with. I really believe that raising expectations is the whole thrust to success that this Government are so determined to achieve—and that is raising expectations for all children.

I know that noble Lords opposite have pointed out that some academies are failing. No one disputes that—of course there will be failures in any system, and they will made to stop failing and start succeeding. But if we are to give every child genuinely the best education, we have to look at what some academies have done brilliantly with the most vulnerable children in the most difficult circumstances and then pull the others up so that instead of 7%, 8% or 11% getting decent GCSEs, 90% do so. Listen to my noble friend Lord Harris of Peckham and look at what he has done. Some of us have visited several of his schools and have seen what can be achieved.

[Baroness Sharp of Guildford (LD)]

I point out to the noble Baroness that there are also local authority-controlled schools where one has seen a very similar turnaround. High expectations are not the preserve of academies alone. Good teachers always have high expectations.

[Baroness Perry of Southwark]

Absolutely. I would be the first person to say that there are some wonderful maintained schools and some very good local authorities. Nevertheless, it is true, and the noble Lord, Lord Sutherland, made this point, that local authorities have had decades to get this right and have allowed far too many schools to fall below the standard and taken no action to improve that. It was right that central government should move in to try to do something about it. I am sure that noble Lords opposite would have alternative ways to do that; the Labour Government did a great deal when in power as a central authority to help to raise standards, and they are to be highly praised for the legacy that they left in London and so on. There is a good history of central government moving in when local government is failing, and there is no question that plenty of schools that have been taken out of local authority control have succeeded. That does not mean that there are not lots of excellent local authority-maintained schools.

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Moved by

[Baroness Sharp of Guildford]

15A: Clause 7, page 6, line 8, at end insert—
“( ) In determining whether to make an Academy order in respect of a maintained school in England, the Secretary of State must consider the availability of a suitable sponsor with a value added measure above the national average.
( ) If no suitable sponsor is available, the Secretary of State must appoint as a sponsor a willing council-maintained school or local authority with a value added measure above the national average.”

[Baroness Sharp of Guildford]

My Lords, this amendment takes us to Clause 7, which is about failing schools, not coasting schools. It makes academisation mandatory for all failing schools: those which on inspection are judged inadequate or in need of very significant improvements. We put forward this amendment at the behest of the Local Government Association, which is worried about its responsibilities for finding sponsors for such schools. I shall quote the association’s briefing:

“We are concerned about the capacity of the pool of current and potential academy sponsors to take on large numbers of additional schools. Councils are also reporting difficulty in finding sponsors for new schools or schools found inadequate by Ofsted. The DfE itself has already halted the expansion of some of the largest academy chains in response to concerns that rapid expansion has affected standards and Ofsted has issued critical reports on the performance of some chains. Recent DfE figures show that only 15% of the largest chains perform above the national average on an ‘added value’ measure, compared to 44 per cent of councils”.

This picks up work that has been done by the Sutton Trust in the two reports it issued this year and last year on academy chains. Summing up its findings in the 2015 report, the trust said:

“Overall, in comparison with the national figures for all secondary schools and academies … the sponsored academies in this analysis have lower inspection grades and are twice as likely to be below the floor standard. In 2014, 44% of the academies in the analysis group were below the government’s new ‘coasting level’ and 26 of the 34 chains that we have analysed had one or more schools in this group”.

It also noted that there were significant variations between chains and within chains with,

“a larger group of low-performing chains … achieving results that are not improving and may be harming the prospects of their disadvantaged pupils”.

It goes on:

“The contrast between the best and worst chains has increased in 2014. Some chains with high attainment for disadvantaged pupils have improved faster than the average for schools with similar 2012 attainment. In contrast, the lowest performing chains did significantly less well over the period 2012-14 than schools with similarly low 2012 attainment”

It is not surprising that the Sutton Trust’s main recommendation was that,

“the DfE and regional schools commissioners … should specify and operate clear, rigorous criteria for all sponsors”,

and that school-based federations and trusts should be expanded; that is, linking up well performing schools, sometimes perhaps in the local authority maintained sectors, with schools that are failing rather than necessarily making them into academies.

This is more or less precisely what this amendment is proposing. Subsection (1) suggests:

“In determining whether to make an Academy order in respect of a maintained school in England, the Secretary of State must consider the availability of a suitable sponsor with a value added measure above the national average”.

For example, the Harris Academy chain, which is very well regarded, would be regarded as a suitable sponsor. However, only 15%—quite a small group—of academy chains are in that category, although they are the larger academy chains.

The amendment goes on to provide that:

“If no suitable sponsor is available, the Secretary of State must appoint as a sponsor a willing council-maintained school or local authority with a value added measure above the national average”.

So the amendment picks up on the two proposals from the Sutton Trust report by saying on the one hand, “Look hard when you are choosing a sponsor—don’t just choose any old sponsor. Make sure that it is one with a very good record in coping with this sort of school”, while on the other hand it refers to where there is no local sponsor available.

It is certainly true that many academy chains concentrate on particular areas and that there are not always chains that are available and have schools locally. When you are part of an academy chain, it is quite important to be able to link up with other schools in the chain and be able to compare best practice. The school of which I am a governor is part of an academy chain, but no other local schools are part of it, and that poses problems. It means that we have to travel about 50 miles to go to a meeting—usually around the M25 at 6 o’clock in the evening, which is not the best thing to do—so as I say, there are problems with not having a local sponsor. Sometimes linking up with a strong local authority-maintained school is preferable, even if it is not itself an academy. Many local secondary schools are now academies and if you have a good, strong local academy, then putting the school under that umbrella is preferable to trying to link it up with a far-distant chain. I beg to move.

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[Baroness Sharp of Guildford]

I thank noble Lords who have participated in this debate. Will the Minister clarify one point? I do not have a copy of the Academies Act with me and I have therefore been unable to check it, but my memory of it is that, in effect, where a school fails, it is initially up to the local authority to effect, so to speak, the process of academisation. The Bill changes it so that:

“The Secretary of State must make an Academy order in respect of a maintained school in England that is eligible for intervention by virtue of section 61 or 62”.

That means that the Secretary of State is now the person to take action. In effect, the Minister said that local authorities do not have to worry at all about this because the regional schools commissioners will take responsibility for it. They will have to worry about whether there is a good academy chain. I said that it is important to take local issues into account. There are a lot of academy chains that are not performing very well at the moment as well as those that are. It is not preferable to bring in a poor-performing academy chain rather than use a strong local school. The preferable solution is to link up at a local level so that the school has locally available mentors that it can easily talk to. I rather object, in some senses, to the way that the Minister said, “Don’t worry any more because the regional schools commissioners are going to take this problem and they’ll sort it out because all our academy chains are so super”. They are not. The Government recognise that. This is an important amendment. We want a more sympathetic approach to it. As we are in Grand Committee, we cannot vote here, so I shall withdraw the amendment.

[Lord Nash]

The noble Baroness is right that the key to school improvement is local school-to-school support. I could not agree more. The academy model is now focused on that, so sponsors will either be a local sponsor in the local MAT formed out of a local outstanding school, and we have created several hundred in the past couple of years, or a part of a national MAT with a local hub. That is essential. I agree entirely with the noble Baroness.

[Baroness Sharp of Guildford]

I beg leave to withdraw the amendment.

Amendment 15A withdrawn.

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Moved by

[Baroness Sharp of Guildford]

18: After Clause 7, insert the following new Clause—
“School conversion: children with special educational needs and disabilities
After section 4 of the Academies Act 2000 insert—“4A School conversion: children with special educational needs and disabilities
Before entering into Academy arrangements in relation to a school which has been the subject of an Academy order under section 4(A1), the Secretary of State shall—(a) provide guidance to the person with whom the arrangements are to be entered into about collaborating with other schools to provide any necessary specialist provision for children with special educational needs and disabilities, in cases where the individual school is not able to provide it;(b) require the person with whom the arrangements are to be entered into to provide details of their plans to support—(i) children with special educational needs and disabilities who have an education, health and care plan; and(ii) children with special educational needs and disabilities who do not have an education, health and care plan.””

[Baroness Sharp of Guildford]

This is a probing amendment and it comes from the Royal College of Speech and Language specialists, who are quite worried about the present position of special educational needs in schools.

As noble Lords will know, following the enactment of the Children and Families Bill, which we dealt with in the previous Session, there have been considerable changes in the treatment of children with special educational needs. What used to be called statements are now education, health and care plans. Approximately 2.5% of children in schools have the equivalent of a statement. Many local authorities are way behind with the issuing of education, health and care plans. Therefore, at the moment there is a mix of the two. Somewhere in the region of 15% or 17% of children have special educational needs. These are now dealt with in the school framework, and we have done away with the categories that used to be called school action and school action plus. Now, it is the responsibility of the school to identify children with special educational needs and to make provision for them.

The speech and language specialists are particularly concerned with those who have special educational needs in speech, language and communication. Something like 7% of children have such needs, and around 50% of those will come from disadvantaged homes—those who are eligible for free school meals. This is the most prevalent group of children with special educational needs in primary schools.

One can see that if children come to school not able to talk properly—in some cases, not talking at all—they cannot be taught to read. The first thing you have to do is to get children chatting away. This is what many reception classes are all about: getting the children to interact with each other and talk to each other and, from that, learning how sounds are formed and so forth.

As I said, the speech and language specialists are very concerned that children with SEN, particularly those with speech, language and communication needs, who do not have statements or EHC plans may not receive the specialist support that they need to enable them to fully engage with their education. Without that support, they are at risk of not having the best start in life and may be unable to achieve their potential, both at school and in life. The speech and language specialists are trying to get the Government’s thoughts on this.

The amendment does two things. First, it is designed to address whether schools will be encouraged and supported to collaborate where an individual school does not have the necessary level of specialist support for children with special educational needs and disabilities, including speech, language and communication needs. Secondly, it deals with how academies will provide support for those children with EHC plans and, crucially, given the vast number of children with special educational needs and disabilities who do not have EHC plans, those without them. It also addresses whether the Government will keep under review specialist provision for children with special educational needs and disabilities in schools of all types, both for children with EHC plans and for those without.

As I said, this is a fairly straightforward amendment. It requires reassurance from the Government that where in the past children have had specialist support, they will continue to get the support that is necessary. This is particularly true in primary schools, where the help of the specialists is particularly valuable to teachers, some of whom do not have the competence to cope. I beg to move.

[Baroness Perry of Southwark]

My Lords, I am very pleased indeed that the noble Baroness has tabled this probing amendment. I have for some time been very closely involved with a charity called I CAN, which works with children with severe communication difficulties. Working with the charity, I have been made aware of how extremely specialised this treatment is. Many of these children are speechless, not because they have any physical disability but because of severe emotional difficulties, and getting them to the point where they can engage in any kind of intelligible conversation is a hugely long and difficult path.

One of the most moving experiences was when the people who work with these children in specialist units demonstrated that these children can sometimes sing when they cannot speak. About eight or nine of these children came in front of us and sang, and you could hear how rusty and unused their voices were because that is the only time they use them. I am therefore very conscious of how important it is that specialist help is available. Of course, good teachers will work hard and some of them will succeed in getting these children to speak, but the idea of making sure that through collaboration they are able to have really specialist help is very important, and I look forward to the Minister’s response.

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[The Earl of Listowel]

My Lords, this amendment prompts a question in my mind, which the Minister might be able to write to me about. Some schools are better at catering for children with special educational needs, so they attract more of them; they get a reputation as being good at it. One would not wish those schools to be penalised because they happen to be good at working with children with special educational needs. In the metric that the Government are developing to judge progress and whether or not a school is coasting, I hope we can be assured that over the three-year period there is not a risk that we penalise a school because it is very good at working with children with special educational needs. The children may not make so much progress academically but they will have been given excellent support in other ways. I hope that makes sense.

I will say one other thing. I can see that the notion I expressed earlier about allowing children to fail, particularly children in care, is a difficult concept, which I should probably correct somewhat. What I was trying to say is: allow children to fail, fail and fail again until they are successful, and each time they fail allow them not to feel so badly about failing that they do not want to try again but allow them to keep on trying until they are successful. Obviously, ideally one wants to help them to be successful the first time round.

[Baroness Sharp of Guildford]

I apologise for speaking again here, but perhaps I may add something. I am the special educational needs governor of a primary school, and when the noble Lord, Lord Sutherland, was talking about the time it takes to get a statement and so forth, I was thinking about the cost of supporting children with special educational needs. As noble Lords will know, a primary school receives about £4,000 a head, and the average cost of supporting those with special educational needs is about £8,000. It can vary from £4,000 to something like £16,000 or £17,000 if there has to be an extra teaching assistant because the child is disruptive. On average it takes a couple of years to get a statement for those who are at the extreme end and it will cost about £16,000. A small primary school finds it very difficult to cope in terms of resources because budgets are so tight at the moment.

[The Earl of Listowel]

I suppose what flows from that is that the educational attainment of other children may not progress as fast as it might because the resources are focused on the most disadvantaged children. So, again, a primary school that is good at attracting children with special educational needs may appear to perform less well—indeed, it may actually be performing less well—academically, although it is doing a good job with children with special educational needs, because its resources are being spent on those children rather than on the wider population.

[Baroness Sharp of Guildford]

I remind the noble Earl that schools receive extra resources for those young people—especially now, with the pupil premium. However, there is an overlap between the two groups and, although we have to be careful to ensure that the pupil premium resources are not spent exclusively on those with special educational needs, there is a reason to use some of those resources for some of the activities.

[Baroness Hughes of Stretford]

Before my noble friend Lord Watson speaks, perhaps I may ask a question. This is an important amendment and it made me realise that I did not know terribly much about what academies have to do in relation to children with special educational needs and disabilities. Can the Minister tell us—if not today then in writing after the Committee—what information schools have to provide, when they are to become academies, about the arrangements that they will make for children with special educational needs and disabilities? Secondly, what statistics does the department have on the numbers of children with SEND who are currently in academies, compared with those elsewhere in the education system?

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[Baroness Evans of Bowes Park]

My Lords, Amendment 18, tabled by the noble Baroness, Lady Sharp of Guildford, concerns provision for pupils with special educational needs and disabilities at schools which have been judged inadequate by Ofsted and will therefore become academies with the support of a sponsor. This amendment would mean that before a sponsor could take on a failing school, it would have to submit detailed plans about how it proposed to support pupils with SEN and disabilities, both those with an education, health and care plan and those without. Where there is doubt that the individual school would be able to offer specialist provision for these pupils, the Secretary of State would have to provide guidance to the sponsor about how collaboration with other schools could provide this. The purpose of the Bill is to ensure that when a school has failed there will be swift, decisive action to bring about urgent transformation. We do not want this to be unnecessarily delayed.

In response to the noble Earl, Lord Listowel, we have set out in the draft Schools Causing Concern guidance that the number of pupils with SEN should be one of the factors that RSCs take into account when determining the best course of action for a coasting school, so they will consider it. While I recognise the noble Earl’s concerns in this area, we believe that this amendment is unnecessary and I will set out the reasons why. I reassure noble Lords that we have a robust system in place to ensure that academies are identifying and addressing the needs of pupils with SEN and disabilities—a system that we reformed extensively only last year. All academies are subject to the same requirements and expectations as local authority-maintained schools in their provision for pupils with SEN and disabilities.

To address the concern that the noble Baroness raised on behalf of the Royal College of Speech and Language Therapists, we are not just talking here about those students with more complex needs, who qualify for education, health and care plans. We have also strengthened requirements on schools in relation to how they support all students with SEN. The noble Baroness, Lady Hughes, asked about that system. It includes the requirement for schools to produce an SEN information report, which must be published on their websites. The report must describe the kinds of special educational needs for which provision is made at the school and information about the school’s policies for making provision for all pupils with SEN. The report must also describe how it involves other bodies, including health and social services bodies, local authority support services and voluntary organisations, in meeting the needs of pupils with SEN and supporting the families of those pupils.

As I have said, academies must follow the same requirements on SEN provision that apply to maintained schools. The sponsor taking responsibility for the failing school must therefore ensure that the school complies with all these requirements. This means that information about the academy’s provision for SEN and how it will collaborate with other organisations as part of that provision must be available, even without this amendment. Sponsors taking on a new school will have to give careful consideration as to how the needs of pupils with SEN at the school are met and whether they can put any additional support in place.

An example, particularly drawing on the collaboration that the noble Lord, Lord Addington, mentioned, is Dorothy Barley Junior School and Special Needs Base, which became a sponsored academy in 2013. The sponsor identified for the school, REAch2, has “inclusion” as one of its founding principles, and took care to consider the potential impact of academy conversion on SEN pupils. REAch2 committed to make provision for children with SEN through inclusion in mainstream classes and, where necessary, outside class. The trust already included a number of primary schools with specialist units providing support for children with SEN—including a specialist speech and language unit at Aerodrome Academy in Croydon, a centre for children with autism at Tidemill Academy in Lewisham and a specialist unit for children with autism and ADHD at Hillyfield Academy in Waltham Forest—so it had strong experience of delivering SEN provision and managing specialist units. We entirely agree that collaboration really helps in this area. Local authorities will of course retain responsibility for services such as education, health and care plans and for the assessment and monitoring of SEN provision once a school becomes an academy.

Academies are inclusive schools which play a full part in providing for children with SEN and disabilities. The noble Baroness, Lady Hughes, asked for some figures. Sponsored academies have a higher proportion of pupils with SEN than the average across all state-funded schools. In January 2015, 17.3% of pupils in sponsored secondary academies were identified as having some form of SEN, compared to 14.3% of pupils in all state-funded secondary schools. In relation to sponsored primary academies, 17% of pupils were identified as having some kind of SEN, compared to 14.4% of pupils in all state-funded primary schools.

The noble Lord, Lord Watson, asked about exclusions. I can reassure him that there is no trend suggesting that academy exclusions are more likely to be overturned. Academies and maintained schools have the same rate of reviews resulting in the independent review panel directing a school to consider reinstating a pupil.

I thank the noble Baroness, Lady Sharp, for raising in her amendment the matter of collaboration. There are certainly many benefits, as I have mentioned, and many MATs already have common SEN policies across their schools or share specialist provision. We therefore do not see that it is necessary to require this in law. We believe that it is right to leave it up to the professionals to decide exactly how best to meet the needs of pupils with SEN, and where collaboration between different schools would be of benefit. It is in the best interests of children with SEN and disabilities, as it is in the best interests of all pupils, for the failure of a school to be addressed as swiftly as possible. On the basis of these reassurances and my explanation of what is already occurring, we hope that the noble Baroness will withdraw her amendment.

[Baroness Sharp of Guildford]

I am very grateful to noble Lords for participating in this debate. I thought it was going to be just a quick debate; I am delighted to have the support that I have had around the Committee. I thank the Minister for her response, which, as I expected, was a reassurance that these procedures are already in place.

I will raise just one issue with her. Perhaps she might take this away and think about it. As she will know, with the transfer of so many schools into academies, many local authorities have run down their capabilities of coping with special educational needs and providing help. Increasingly, it is left to outside consultants to provide that help. I know that quite a number of authorities are struggling to meet the demands that are required in reviewing the education, health and care plans, and something of a backlog is building up. There is also a question of whether they have the capabilities to do the monitoring that is now written into the Act; the local authorities are required to monitor these facilities in both local authority state schools and academies. If they are to do this monitoring, it is important that they actually have the capability to do it. Perhaps the Minister and the Chief Inspector of Schools might need to think about this. With that, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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Moved by

[Baroness Sharp of Guildford]

19: Clause 8, page 6, line 16, leave out from “consult” to end of line 17 and insert—
“(a) parents and guardians of registered children,(b) teaching and support staff of the school,(c) the local authority,(d) the governing body of the school, and(e) any other such persons as they deem to be appropriate.”

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[Baroness Sharp of Guildford]

This is me again. I apologise for that. To some extent, we are going over ground on this question of consultation that we have already discussed at some length. In Clause 8, proposed new Section 5 of the 2010 Act is headed, “Consultation about conversion: schools not eligible for intervention”. These are the schools that convert to academies of their own choice. New Section 5(1) spells it out on the consultation:

“Before a maintained school in England is converted into an Academy, the school’s governing body must consult such persons as they think appropriate about whether the conversion should take place”.

I believe I am right in saying that that wording comes directly from the Academies Act, and was the form of words that we eventually agreed for that Act after a lot of discussion on the issue. My amendment proposes that rather than having this rather vague wording,

“such persons as they think appropriate about whether the conversion should take place”,

we should make it more specific and talk about,

“parents and guardians of registered children … teaching and support staff of the school”

and the local authority, which we need to refer to because if a local authority school is converting voluntarily to an academy, it needs to take the local authority along with it in the discussions that it has. Since the governing body will be initiating this action, paragraph (d) of my amendment is relatively unnecessary. My amendment refers also to,

“other such persons as they deem to be appropriate”.

My amendment would effectively spell out the process of consultation in those circumstances. This very much picks up on the discussion we had last Thursday on consultation with regard to coasting schools. During that discussion, the noble Baroness, Lady Evans, who was responding for the Government, made it clear that in such circumstances the Government would certainly expect that there would be consultation with the parents. I remind the Committee what the noble Baroness said on that occasion:

“In practice, we envisage that where a school meets the coasting definition, the governing body will voluntarily inform parents. Issuing a communication to parents is already the normal approach taken by schools following the publication of exam results or Ofsted inspections. In fact, schools are not required to notify parents of Ofsted judgments but they do, and we would expect schools to adopt a similar approach in this situation. We would certainly expect governing bodies to be as open as possible with parents”.—[Official Report, 5/11/15; col. GC 415]

Indeed, one does expect them to be open with parents.

However, I take issue with whether the noble Baroness was right in saying that schools are not expected to communicate with parents about Ofsted judgments. Section 14(4)(c) of the Education and Inspections Act 2006, as I read it, states that the appropriate authority, which is the governing body, shall take such steps as are reasonably practicable to secure that every registered parent of a registered pupil at the school receives a copy of the report within such period following the receipt of the report by the authority as may be prescribed, which is five working days. I think I am right in saying that under present legislation parents do have to receive a copy of the report, and that there is therefore discussion with parents about it. I basically agreed with what the Minister said on that occasion—namely, that consulting parents and staff is the least that should be expected from a governing board that decides to pursue the conversion route. However, legislation and guidance usually spell out what is expected and there seems a very strong case for spelling it out on this occasion as well.

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[Lord Sutherland of Houndwood]

My Lords, before the Minister sits down, I make plain that you do not have to be a member of the Conservative Party to support the Government on this one. It is interesting that he quoted two Cross-Benchers who have spoken in comparable terms. It is rather important to take account of the history of this and what people’s experience has been. We are not dealing with the best local authorities; there are good ones, but we are dealing with the others. Lastly, for the avoidance of doubt, I raised the question about the word “must”. I have been satisfied with the Minister’s reply relating to a later clause in the Bill.

[Baroness Sharp of Guildford]

I am sorry; I was forgetting that I was the one who originally moved this. I thank the Minister for his reply. I have to confess that my sympathies were rather more with Amendment 20 than with the amendment that I myself moved. This is clearly an issue that we are going to return to, but in the mean time I beg leave to withdraw the amendment.

Amendment 19 withdrawn.