Examination of Witnesses (Questions 500
- 519)
WEDNESDAY 14 DECEMBER 2005
DR PHILIP
HUNTER
Q500 Chairman: That is what I like
to hear, straight into the inquisition. What is your opinion of
the White Paper?
Dr Hunter: I think I would rather
not get drawn into giving a general opinion of that kind.
Q501 Chairman: Does it affect your
job?
Dr Hunter: Clearly we have been
through it and there are some areas in which it will affect our
job. There are a few additional tasks for us to take on but most
of them seem to be well within the sort of remit that we have
now. We exist to resolve disputes. I think that the new tasks
they have lined up for us are of that kind. We have had slightly
fewer cases thrown at us during the last year, so we have some
spare capacity, and I think there is no problem in taking on the
sort of things that they have in mind for us.
Q502 Chairman: You have said you
are there to resolve disputes, but you cannot resolve disputes
that you do not know about. One of the criticisms of your role
in the past, when we did the former inquiry, was that a lot of
people are not aware of their rights to complain to you and so
there is a lot of frustration. If people are more articulate and
more knowledgeable they can come to you, and other people cannot.
Dr Hunter: I understand that and
I have a great deal of sympathy with it. Indeed, we have said
to the Department this year that it would be a good idea if they
reminded local authorities of their duties to review admission
arrangements for all schools in their area every year and to object
if they found that those arrangements did not in their view meet
the Code of Practice. It seems to us, looking at the cases we
have had in the last couple of years, that there are some local
authorities that are doing that, but we very much suspect that
there are some that are not. The Department wrote around all local
authorities a couple of years ago, and I think it is time they
did so again, or even made it more overt than that and perhaps
put a clear duty on local authorities to do that every year.
Q503 Chairman: Local authorities
are not doing their job properly at the moment.
Dr Hunter: I suspect that some
of them are not. Clearly we have no proof of that because we do
not see the ones that are not referred to us, but it does seem
to us that we are receiving fairly large numbers of objections
from some authorities and we hear anecdotes, if you like, about
schools that have arrangements that seemed to us not to meet the
terms of the code and yet we have not had an objection. Some authorities
must, we think, not be doing their job properly and we would like
to see a clear reminder to them that they should be doing it.
Q504 Chairman: So it could make your
job much more effective if there were a duty on local authorities
to have that role.
Dr Hunter: I think that would
represent a fairly powerful machinery for making sure that schools
do observe the code and keep within it.
Q505 Chairman: You saw the inquiry
that we did last year. One particular head—it still sticks
in my memory—when asked why she did not have any looked-after
children, why she did not have any children with special educational
needs and hardly any who have free school meals, looked at me
and said, "I took note of the code" and obviously implied:
and then ignored it. Did you ever follow up that particular school
or that particular head?
Dr Hunter: No, I did not follow
up that particular school, because, as you know, we do not act
on an initiative of that kind; we need an objection. But, as you
know, the Department this year are proposing to take from the
code into regulations the need for schools to put looked-after
children on the top of the list. I do not know whether that was
a response to what you said or where that came from but clearly
somebody is taking note of that and I think that is right. We
have received a fairly large number of objections to schools not
properly dealing with looked-after children in the last couple
of years. We have upheld them all. When you get a situation like
that it probably is better that it is removed from the code and
put in regulations. Does your role there apply to all schools
or are there some schools exempted from that?
Dr Hunter: That applies to all
schools.
Q506 Chairman: Grammar schools?
Dr Hunter: Grammar schools, foundation
schools—except for academies. If there is a complaint about
academies, that goes into the Department.
Q507 Chairman: Right. Okay. It applies
to grammar schools.
Dr Hunter: It applies to grammar
schools.
Q508 Chairman: Good. Should your
role not be more forensic? You know what is going on across the
country. You are one of the most experienced people in the whole
of the education sector. You are hearing this is going on or you
look at the stats or you read the Sutton Trust reports about how
there is a very big difference between the top performing state
schools and the comparison with how many free school meals pupils
they take in comparison to the number in the community which they
serve. Should your role not be more forensic? Should you not say,
"Look, I've got to do something about this"?
Dr Hunter: Our job is to resolve
disputes within the terms, within the framework of legislation
and statutory guidance laid down by Parliament. That is what our
job is and we cannot stray from that.
Q509 Chairman: Would you like to
be more powerful?
Dr Hunter: I do not think so.
We are not a police force; we are not an inspection force. We
do not have the staff to be that. We have a very small—down
to nine next year—number of adjudicators—very high
powered, and I think very able, but we are resolving disputes.
That is what we are for and I think that is where we should remain.
The job of policing all of this is clearly between the Department
and local authorities. If there is a need for more police, then
it is one of those that should be getting stuck in.
Q510 Chairman: I really do not want
to drag you into the politics of this—this is not the point
of this Committee.
Dr Hunter: Oh, good.
Q511 Chairman: I know the BBC is
not always 100% accurate, but you are quoted as saying in a BBC
news press release that you thought the system might be better
if all schools ran their own admissions. Is that an accurate quote?
Dr Hunter: Well, it is not a complete
quote and perhaps I should tell you entirely what I said. I am
saying that it is for Government and for you to decide what functions
should be performed by national government, in terms of regulations
and in terms of the Code of Practice; what functions should be
performed by local authorities and the admissions forum; and what
functions should be performed by schools. Foundation schools and
aided schools do not have better or more competent head teachers
and governors than community schools. All schools, in my view,
should be treated the same. That means that all schools, all governors
and head teachers, should have a role in the admissions process,
but it should be a role which is clearly delineated by the national
Code of Practice, national regulations and by whatever is decided
local government and the admissions forum should do.
Q512 Chairman: Is there not a real
problem with that suggestion, in that every parent in this country
has a duty to send their children to school and if you take away
a local government role to make that duty a possibility then someone
has to guarantee that a child ends up in a school If you have
all these independent admissions authorities, what happens to
the child who is not accepted into a school?
Dr Hunter: That is why I say it
is very important that national government and local government
or the local admissions forum have a role and why the schools
have to operate within the framework set down by them. Clearly,
if a school wants to act in a way which means the local authority
cannot perform its duty to provide places for local children,
then somebody has to step in and put that right. We have had,
over the last couple of years, not many but a small number of
cases where a school has wanted to withdraw from part of its traditional
catchment area—and, surprise, surprise, that tends to be
the area where most of the difficult to teach children live—and
the local authority has objected to that. Where that has happened,
we have always upheld the objection, because we are very clear
about a local authority's duty, and the arrangement does not work
if the parent's duty is not matched by the local authority's duty
to provide places and if those two do not gel together, work together.
Chairman: Dr Hunter, that has been a very interesting
opening. Could I ask David to come in with a question.
Q513 Mr Chaytor: Dr Hunter, are there
things that are not in the White Paper that you think should be
in there, things which would improve the way in which you can
do your job at the moment. You have mentioned the duty on local
authorities to ensure admission.
Dr Hunter: Sure. I think there
are probably two things that would help. One is the duty of local
authorities or the clear statement that the duty exists. That
is important and I think that is probably the most important general
one. The other thing that would help somewhere—and this
is a rather technical point—would be to clear up the misunderstandings
I think there are in the legislation about what happens when we
get a case which affects somebody's religion. Where that happens,
under section 90 of the Act we refer it to the Secretary of State.
It is not always clear when we get an objection whether it affects
somebody's religion or not and we spent a lot of money last year
on lawyers trying to sort out whether four or five cases should
go to the Secretary of State or should stay with us. That needs
to be sorted out. My way of sorting that out would be to leave
them all with us, and I have to say I do not think the ministers
would object terribly to that because I do not think they are
very keen on taking these cases. I do not think the churches would
object either. That is another point that I think it would help
to sort it out. There are things like—and this has been
agreed already, I think—the ability to make our decisions
stick for three years unless we deliberately say we do not want
them to stick that long. That helps.
Q514 Mr Chaytor: Why only three years?
If yours is a valid decision, why should it not be permanent?
Dr Hunter: I do not see why not.
I think circumstances often change within three years and three
years is probably enough. It is irritating, I have to say—and
we have had some cases like this—if you make a determination
and the school observes it for one year and then comes back the
next year and does exactly the same thing. That is intensely irritating.
I think if it has stuck for three years then the school will probably
have forgotten it by then and learned to live with whatever it
is. But one could make it longer than that if one wanted to.
Q515 Mr Chaytor: Do you think the
general direction of the White Paper is likely to lead to more
disputes referred to your office or fewer disputes?
Dr Hunter: It is very difficult
to say at the moment. We have been thinking about that clearly,
but it depends really on how the thing is perceived, I think,
by the schools. It is quite clear that there are extreme positions,
if you like, about admissions around the place. I am not sure
anybody is advocating this, but one could certainly see a position
in which all schools were set completely free, there was no Code
of Practice, there was no adjudication, they were just told to
get on with it, and they could set their own admission arrangements
absolutely independently. Clearly if that happens—and you
will be hearing more about this later on this morning—you
get this segregation between the schools. What happens is that
oversubscribed schools drift upmarket. That is the natural way
that organisations work, I think—it is nobody's fault, it
just happens—and you will be hearing more about that later
this morning, I guess. So that is one extreme. The other extreme
is where you could advocate that all schools have exactly the
same intake, a balanced intake, everybody has the same distribution
of ability, the same social distribution and all the rest of it,
and that would clearly restrict choice. Reading the White Paper,
it seems to me it has gone somewhere in the middle. It is saying
it is going for choice—and that has to be a good thing:
people want choice—but it is saying it is going for choice
as long as that can be achieve without interfering with other
people's choice, without being unfair, and without interfering
with educational standards. That seems to me to be eminently sensible.
It is neither of those extremes and I feel quite comfortable with
that position.
Q516 Mr Chaytor: But that does not
answer the question. The question is: Is that position likely
to trigger more disputes, because the White Paper argues the rhetoric
of choice but puts in some measures that put constraints on choice?
Is it not likely to increase greater levels of frustration and
more appeals to the adjudicator? Could I also ask: has your office's
workload increased or decreased in each year since it was established?
Dr Hunter: It increased enormously
about a couple of years ago, when the new Code of Practice came
in and when this letter from the Department went round local authorities.
It went up from about 100 cases a year to 250 cases a year. It
has gone down again this year—and that is a good thing:
we do not want to see too many disputes around the place—so
there is some slack in the system now. Going back to your point,
I am trying to say that it depends how schools perceive being
their "own admission authorities". If they perceive
that as saying they are totally free, they do not have to work
within the code, they do not have to cooperate with other schools
around, they do not have to subject themselves to adjudicators
and all the rest of it—and there are some foundation schools
(we have mentioned one this morning) and aided schools which do
think that—then clearly there are going to be more objections.
But if they are told very clearly that they have to work within
the code, that is evident.
Q517 Mr Chaytor: So it comes back
to the legal status of the code. My understanding is that you
had argued against the code being mandatory.
Dr Hunter: No.
Q518 Mr Chaytor: What is your position
on that?
Dr Hunter: My position is that
as the code stands at the moment it cannot in toto be turned
into some sort of regulation. It just does not work, because bits
of it are saying that you can have catchment areas or you can
have feeder primary schools. You cannot make a regulation which
covers that. But you can—and this is your territory—you
and the Secretary of State—can take bits of it and make
regulations about those bits—just as last year the bit which
was in the code about looked-after children was translated into
a regulation. The difference between the code and regulations
is that, where you have a regulation the assumption is that there
is no exception to that regulation; where you have a code you
always have to assume there is an exception somewhere. There may
be elements of the code where you decide, where the Secretary
of State decides, there shall be no exception. It is quite easy
in those circumstances to turn that into regulation. But it is
not the whole code; it is picking out bits where you—
Q519 Mr Chaytor: Leaving aside the
bits that could be turned into regulations, do you think the requirement
of schools simply to have regard to the code overall is sufficient?
Or do you think there should be a tighter guideline; that, for
example, they should be required to act in accordance with or
should be required to comply with the provisions of the code?
Dr Hunter: I think you can tighten
up the words. I am not a lawyer so I am not absolutely clear about
what this means in legal terms, but I think you can ratchet it
up a bit from "have regard" to "act in accordance
with" or something like that. I think that would probably
require a complete re-write of the code. I do not know, maybe
that is what the Secretary of State has in mind.
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