Examination of Witnesses (Questions 740
- 759)
WEDNESDAY 19 NOVEMBER 2003
MR STEPHEN
CROWNE, MS
CAROLINE MACREADY
AND MS
SUE GARNER
Q740 Paul Holmes: But looking at
it from the other side of the fence, parents have a fairly limited
ground on which they can appeal. Is there a case to be made to
say that parents should be able to appeal on a wider range of
issues than they are allowed at the moment?
Ms Macready: My understanding
is that, once you get past infant classes for five to seven year
olds where the appeal grounds are very limited, a parent can make
any case they want to an appeal panel. They can use any argument
they wish.
Q741 Paul Holmes: Specifically, for
example, the Disability Discrimination Act as of last September/October
now applies to educational establishments. Is there any sign a
year in of an increase in numbers of appeals saying that a particular
school is not applying the Disability Discrimination Act? One
reason I ask that is that government statistics show that there
are certain categories of schools taking far fewer children with
special educational needs, which would include disability, voluntary
aided schools, grammar schools, CTCs, and which take well below
national averages of children with special educational needs.
Is there therefore a case for parents to make appeals on the grounds
that the DDA is, in a broad wave of schools, not being applied?
Ms Garner: They are able to make
that case out although we do not have very recent statistics,
and we do not at present plan to count specifically the number
of Disability Discrimination Act related appeals.
Q742 Paul Holmes: You do not plan
to? That ought to be a requirement of the Disability Discrimination
Act.
Mr Crowne: The general point is
that schools are required to obey the law in relation to disability
discrimination, so they are simply not allowed to have arrangements
that discriminate, and they are under a duty to make reasonable
adjustments to accommodate disabled children so that is a very
strong requirement for disability. For special educational needs,
in the case of a statement, the school is named in the statement,
so the statementing process takes account of the school admissions
side. For the wider group of children with special educational
needs you are right, there is a variety of outcomes across schools,
both in the extent to which they regard themselves as inclusive
schools in the SEN sense and in their ability to cater for a wider
range of SEN children. It is very important that the information
that is provided for parents who have children with particular
kinds of special educational needs which may not amount to a statement
makes it clear what that school can offer but, whatever oversubscription
criteria the school has—and of course the school can only
apply those when it is oversubscribed—it has to comply with
parental preference so that those oversubscription criteria are
applied completely fairly across the whole number of pupils applying.
Q743 Paul Holmes: Very quickly and
very precisely, if something like the Disability Discrimination
Act is to be more than just a statement of principle, surely it
has to be enforced? Unless you are going to leave it to the Disability
Rights Commission, which has limited power to intervene, should
not people in your position be making a proactive effort this
year, next year and the year after and be looking to see that
it is being applied?
Mr Crowne: Well, we are, because
it clearly does make clear that there is a set of legal requirements—of
which this is part—that must be complied with. Also, the
group of children with SEN statements overlaps substantially but
does not include all of the group with disability so we have very,
as you know, clear arrangements for protecting the rights of children
with statements of special educational needs. For the group that
would fall outside that in terms of disability we should and we
will need to monitor how the law is being applied in schools,
recognising that the difficult area for a lot of schools will
be the ability to make reasonable adjustments to their facilities
and provisions to accommodate different kinds of disability.
Paul Holmes: Although that technically
is not an excuse under the Disability Discrimination Act.
Q744 Mr Chaytor: You have told us
that you do not know the cost of the appeal system. Do you think
it is good practice generally for any department of central government
to construct a whole new series of legal requirements in this
vast elaborate bureaucracy of appeals we have, without having
any idea of what the costs are going to be for local authorities?
I am just looking at the information you have sent in to the Committee,
and the number of appeals to secondary schools would appear to
have increased from 1997 to 2001 by just a little over 50%. These
are staggering figures. Are you saying that nobody at any point
has ever anticipated what the cost might be, or tried to assess
what the cost might be, or adjust the settlement to local authorities,
let alone individual schools, to take account of these costs?
Is this good practice?
Mr Crowne: Admissions appeals,
of course, have been part of the landscape for a very long time
and by their very nature appeals are demand-driven, so it is extremely
hard at any one moment to predict over the next period the way
appeals are going and, of course, one of our key policy objectives
is to seek to improve the system not just of admissions but the
attractiveness of the schools system overall, to reduce the number
of appeals. As we all know, however, there are pressures in the
other direction as well. People are rightly more prepared to challenge
and push to see how they can best protect the interests of their
children as they see it, so it is to that extent demand-led.
Q745 Mr Chaytor: But there are other
demand-led services where we know the costs and we make efforts
to predict the cost.
Mr Crowne: I accept that and there
is a case for knowing more about these costs. I am simply trying
to explain how we got to where we are, really. In terms of funding
local authorities, as you know we have a system for funding local
authorities which takes some broad indicators of need, and we
do not try to estimate for every single individual service area
within education, for example, the different pressures—that
would be incredibly complicated. There is an onus on local authorities
and ourselves to seek to ensure that we have the most cost-effective
arrangements, and I think that is a fair point—that more
needs to be done to ensure that.
Q746 Mr Chaytor: Moving on to the
role of the adjudicator, do you know the cost of the adjudicator's
office?
Ms Macready: Yes. It is in the
adjudicator's annual report. We can find out the running costs
and we would be happy to send you a note on that. All told it
is rather less than the million pound figure that Philip Hunter
gave you, but we will send it.[12]
Q747 Mr Chaytor: Do you know if that
is increasing or decreasing, given that appeals to secondary schools
have gone up to 50% in five years? Are we seeing the same increase
in the number of approaches to the adjudicator?
Ms Macready: They are entirely
different trend paths. As Stephen said, the appeal mechanism has
been there for a long time. Since I became involved in admissions
in 1998, nothing the government has done has made it any more
expensive. Indeed, we have encouraged appeal panels to be smaller
because large ones were intimidating for parents, but the difficulty
there is if you establish a right it is very difficult to take
it away even if it does start to get more expensive, and more
parents have started to exercise their appeal right, not because
more parents are dissatisfied—we actually compared the results
of our 2001 research with earlier work by the Audit Commission
called Trading Places, and the signs were that over that time,
between 1996 and 2000, more parents were getting a school of choice
and a school they were satisfied with—but what has happened
is that parents have become more conscious of their rights, more
aware that they have nothing to lose by an appeal and may gain
something, and they have tended to appeal even in cases where
they have already got a school they will maybe consider satisfactory
in the hope of getting a better one, so that is what has happened
there. But that is quite different from the adjudicators because
they are considering objections to admission arrangements, and
when they tend to get more cases is when the law has been changed
so more people can object to them, or in the early years after
a legal change which brings more objections forward.
Q748 Mr Chaytor: So have the referrals
to the adjudicator increased in the last couple of years?
Ms Macready: As Philip Hunter
I am sure told you, he had a leap in cases in 2003. The 2003 cases
were higher than in the first year of 1999 but in 2000 they went
down from 1999, and in 2001 and 2002 they went on going down,
and then they went up again in 2003.
Mr Crowne: Can I make a point
here which is that the productivity of adjudicators has gone up.
They are dealing with more cases with less resources and producing
very good performances.
Ms Macready: Yes. Their staffing
costs have gone down.
Q749 Mr Chaytor: Moving on to the
grammar school ballot system, whose idea was this? Did it come
from the Department? Did it come from a Minister? A Minister's
special adviser? A No 10 policy unit?
Ms Macready: I do not know. It
certainly did not come from any of us! It was a manifesto commitment,
was it not, in 1997?
Mr Crowne: I would not want that
to be misunderstood. As a matter of fact, none of us was involved.
Q750 Mr Chaytor: So the regulations
were in place before you were appointed to your present post?
Ms Macready: Yes.
Q751 Mr Chaytor: In terms of the
specifics of the regulations then, in respect of the area ballots
we have this astonishing requirement for 20% of eligible parents
to sign a petition to call for a ballot. Is there any precedent
for that anywhere else within the United Kingdom for any other
kind of ballot arrangements? What sort of modelling was done to
decide on 20% as against 15%, or 5%, or 50%? Where did this figure
come from, and what is the logic for it?
Ms Macready: I do not know exactly
where it came from: I do not know what modelling was done.
Q752 Mr Chaytor: Do you know who
would know?
Ms Macready: I believe, from reading
what was said at the time that the 1998 Act was passed, that it
was felt to be a reasonable figure—not too high which 50%
would have been and not too low as 5% would have been—but
I cannot describe what the thinking was.
Q753 Mr Chaytor: Could you tell us
who would be able to describe the precise thinking, because this
is absolutely relevant to our inquiry? Somebody somewhere must
know where the buck stops.
Mr Crowne: It is a difficult one—
Q754 Mr Chaytor: That is why I am
asking it!
Mr Crowne: The arrangements we
have are enshrined in the statute, and were extensively debated
at the time.
Q755 Mr Chaytor: But it was the general
principle that was enshrined in statute. It is the precise details
of the mechanics of the ballot that are obviously the really interesting
point.
Ms Macready: I am afraid a whole
lot of those details are also in the primary legislation. You
cannot vary the 20% by secondary legislation. There are a whole
lot of other significant features of the mechanism that are there
on the face of primary legislation. Naturally we have considered
whether, if one were to want to change it, one could by primary
legislation and there is extremely little one could do because
it is so specific in the Act itself.
Q756 Mr Chaytor: If we were to look
at the other kind of ballots, the feeder school ballots, someone
somewhere decided that five was the figure to determine eligibility
for participation of the feeder school ballots from primary schools,
but is this not the equivalent of keeping black voters off the
presidential election, because all that happens is that schools
that have no tradition of sending pupils to grammar schools are
denying parents the right to exercise a vote. Why five? Does this
not give an enormous advantage and, arguably, a veto to the parents
of children who are privately educated in primary school to determine
the shape or the future of the state system?
Mr Crowne: I cannot answer "Why
five?", and whether there is any magic around five, but clearly
the general approach was to strike the right balance in terms
of threshold requirements and eligible voting, and to try and
capture as fairly as possible the potential and actual users of
the system who should be the main determinants of the pattern
of provision, and I think there is a judgment here about how you
set thresholds and design the voting population and you have to
look at the whole package in the round. Clearly you can take different
views on how strong the test for change should be. I think the
basic philosophy that underpins these arrangements is that, firstly,
they should be for local determination, which is why you have
essentially a local test; secondly, because there are likely to
be strongly held views on these kinds of issues, making a significant
change should be based on a significant expression of view locally;
and clearly a third element would be how much volatility in the
system you might create if there is a lot of change, to have to
manage successive change in the system. Because there is no doubt
parental satisfaction in general—and I am not just talking
about selection now—depends on real predictability of how
the system is going to move forward.
Q757 Mr Chaytor: This "significant
expression of view" surely, if not denied, is at least severely
limited by the threshold of the five, because in many of the areas
that would be subject to or could be subject to feeder school
ballots, the majority of parents in the system are not part of
the electorate. The electorate is rigged for a minority of parents.
Mr Crowne: These are precisely
the kinds of issues that will be debated—
Q758 Mr Chaytor: Is this not the
case, that the majority of parents with a stake in the system
are denied the right to vote?
Mr Crowne: I have to say that
there is a judgment to be taken in the round about how all these
things will operate in the system. I am not arguing against you
in terms of the specifics that you identify, but, if you look
at the system as a whole, it has to be about how it works as a
whole, and that is a judgment which was made at the time and debated
it extensively when the legislation was being considered. Clearly,
it would be possible to come to a different set of conclusions
about how the system as a whole should operate.
Q759 Mr Chaytor: But in your view,
would it be preferable for all parents within the state system
to have the opportunity of expressing their view about the future
shape of the state system?
Mr Crowne: I think that is essentially
a policy question. I think I really ought to invite you to ask
David Miliband when he comes.
12 Note: See Ev 223. Back
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