Academies Bill [HL]

Lord Astor of Hever Excerpts

Wednesday 7th July 2010 Lords Chamber

[Baroness Garden of Frognal]

I move Amendment 22 and speak to Amendments 45 and 46, also in this group, which are in my name and those of my noble friends Lady Walmsley and Lady Sharp. The amendments complement those that we were discussing earlier under the amendment of the noble Lord, Lord Hill—Amendment 11. We warmly welcome what the Government have done in their amendments, but feel it desirable to go a bit further for the avoidance of any doubt. That is why we have tabled the amendments. I give credit to the Minister and the Government for responding so fully to us and others on SEN matters.

Amendment 22 provides that the number of SEN statements is monitored, so that corrective action can be taken if the proportion of children in academies rises significantly. It was drafted with the perspective of a parent of a child with special educational needs in mind. Much has been done in recent years to reduce the need for parents to see the statement as the only guaranteed way to ensure that their child gets a special educational provision that he or she wants. A major inquiry by the House of Commons Education and Skills Committee addressed that topic. Change brings uncertainty, which will almost inevitably be the case if a large number of schools move to the academy sector. Parents, whose views are pivotal in the assessment process, are likely to want their children's provision to be safeguarded in a statement, so that they know what will be guaranteed, rather than rely on oral or even written commitments from schools that the assessed needs will be met.

It would be wrong to put limits on how many children can be statemented, but there is probably not much that can be done in the short term. Clearly, this issue needs to be monitored, and the proposal here is for an annual report, as proposed by my noble friend Lady Williams. As the Minister said, that annual report is acquiring biblical proportions. We are asking for some straightforward statistical information about numbers of SEN pupils in academies, along with the numbers of those with statements, so that the proportions can be monitored. That information should be readily available. The amendment also proposes a review and recommendations from the Secretary of State on the quality of provision. It is a probing amendment to see whether the Government share that concern and, if so, how they will address the specific concerns of parents of children with special educational needs attending academies who seek to have them statemented.

Amendments 45 and 46 take us back to government Amendment 11, which is drafted to meet concerns about academies meeting their responsibilities for pupils with special educational needs. The letter on the amendments that the noble Lord, Lord Hill, sent to Members of the House states that,

“my starting point has been to try to secure parity between Academies and maintained schools in the requirements placed on them in respect of SEN”.

That approach is of course welcome, but does not take into account the totality of arrangements for special educational provision in an area and the arrangements to support children outside school. It looks at one very important aspect, the role of school governors, but not the whole picture.

Amendments 45 and 46 attempt to redress the imbalance in the Minister's approach. The Minister's amendment refers to the governing body’s responsibilities under Chapter 1 of Part 4 of the Education Act 1996. Noble Lords may well recall that that has its origin in the Education Act 1981, which implemented the report of the noble Baroness, Lady Warnock, on special educational needs. It is interesting to note that that was commissioned by the noble Baroness, Lady Thatcher, when Secretary of State, received when the noble Baroness, Lady Williams, was Secretary of State, taken through the Commons by the late Lord Carlisle, with the Labour Opposition speaker being the noble Lord, Lord Kinnock, when Clement Freud was the Liberal Party speaker—an impressive, distinguished and diverse cohort, I am sure that your Lordships will agree.

The 1981 Act was innovative in that it was the first legislation to give specific responsibilities to governing bodies and head teachers. It followed Lord Carlisle’s 1980 Education Act, which required working governing bodies for all schools. It is therefore worth examining why certain responsibilities were given to governing bodies, why other responsibilities were given to local authorities and the effect of the government amendment on those local authority responsibilities if Amendments 45 and 46, or something similar, are not adopted.

Amendment 45 applies to Section 321 of the 1996 Act, which is entitled,

“General duty of local education authority towards children for whom they are responsible”.

It is the first of the sections on the identification and assessment of children with special educational needs that enable local authorities to statement children whose needs must be safeguarded. Section 321 places responsibility on the local authority to identify children in local authority maintained schools. The reason why the responsibility is placed on the local authority is to enable a local authority-wide approach to provision. The level of statementing varies widely between authorities, not because of anything to do with the efficiency of the local authority, but because of collective decisions about what sort of provision to make for what sort of need locally. Indeed, inefficiencies might well occur if this were attempted nationally, rather than locally, as matching need to provision is best done locally, or, indeed, if schools chose who they wanted statemented without reference to a local policy.

The code of practice on special educational needs puts responsibility on the school for the initial assessment process through the school action and school action plus stages, but it is done within an agreed local framework that matches need with provision through a local authority-wide assessment policy. Section 321 permits other bodies to inform the local authority of children for whom the authority may have to determine the special educational provision. Academies are included under Section 321(3)(c). The Minister’s amendment does not require academies to comply with any local authority-wide strategy for the identification and assessment of children with special educational needs as there is no specific duty on maintained school governing bodies to do so. Amendment 45, however imperfect, attempts to meet that concern.

To clarify, the point is that if an authority has one or two academies with perhaps 5 to 10 per cent of the student population, then non-compliance by academies on the initial identification of children is perhaps not of great concern. However, if the proportion rises to a critical level—perhaps 20 to 30 per cent—it will become difficult for the local authority to manage and to take responsibility for an authority-wide identification process that matches local provision. This was recognised in the previous experiment in allowing schools to opt out of their local school system through grant-maintained school status and, right on cue, the Education Reform Act 1998, which was introduced by the noble Lord, Lord Baker, brought grant-maintained schools into the equivalent provision in the 1981 Education Act. This is a probing amendment to ask why the Government have not taken the lessons from the 1988 legislation.

The same argument applies to Amendment 46, which amends the other specific local authority duty in relation to schools for children with special educational needs. Once the authority has made a statement of special educational needs, it is right and proper that it should monitor the provision made for a child in school and can take responsibility for the use of any additional resources allocated to a child to support his education. If a child is in a maintained school, there is no need to have specific legislation allowing the authority to monitor the child’s education. Section 327 is entitled,

“Access for local education authority to certain schools”.

It gives the local authority the right to access at any reasonable time one of the authority’s children who has been placed in a maintained school in another local educational authority area or in an independent school. The latter will include academies. Will the Minister confirm that that is the case and also indicate how the local authority can exercise this responsibility should an academy not wish to comply? I look forward to the Minister’s reply and beg to move.

[Lord Astor of Hever]

I remind noble Lords that we are on Report and encourage them to keep their speeches as short as possible.

[Baroness Whitaker]

My Lords, I rise to speak briefly to Amendment 44A, which rather oddly is in this group. The arguments I made to ensure that the design of academies in new or refurbished buildings must be conducive to good education and not a waste of public money in Committee are still the same. I will not repeat them now.

I have tabled this amendment again because the answer from the noble Lord, Lord Wallace of Saltaire, although helpful, did not deal with what general minimum design standards would operate, and no letter was forthcoming from the department to amplify his, perhaps I may say rather vague, response that he had no reason to doubt that they did. I would not press for a statutory requirement if it were definite that the free schools network would include such design advice in the general advice that the Government are funding them to give to aspirant academy-makers.

The noble Lord cited the law covering access for students with disabilities, which was welcome, but I am sure that groups of parents, teachers or others need to get themselves guidance on how the broad provisions of the Disability Discrimination Act and successor obligations under the Equality Act should be translated into design.

The Government’s approach to housing, in their letter to me of 15 June, says that they will issue guidance by,

“setting out minimum environmental, architectural, design, economic and social standards”.

Are academies where children will spend a large proportion of their time at a formative period of their life really so much less important?