Clause
129
Abolition
of requirement of approval for independent schools:
England
Question
proposed, That the clause stand part of the
Bill.
Mr.
Gibb:
The Independent Schools Council has raised concern
about the clause, which abolishes the concept of approved independent
schools under section 347 of the Education Act 1996. The ISC points out
that approved
status
“provides parents
with the assurance that a section-347 school can meet the needs for
which it is approved and in which it specialises.”
In the July 2007 consultation
document, the Government say:
“Section 347 of the 1996
Education Act created two categories of independent schools, approved
and non-approved schools. Approved schools cater wholly or mainly for
pupils with SEN, and are required to meet additional standards. For
this reason, local authorities are able to place pupils in these
schools without seeking consent from the Secretary of State. The
standards were originally needed because independent school standards
were not in the past set out in a way that was helpful for special
schools.”
They go on to say:
“Since the Education Act
2002, higher standards have been set for the independent sector as a
whole ... We believe these new standards, together with an
improved inspection framework ... remove the need for a separate
category of approved independent
schools.”
It will then be
for the local authorities to assure themselves of the quality of
independent special schools that they use to provide education for
children with special needs.
3.15
pm
In its briefing
to the Committee, the ISC points
out:
“We are
concerned that most local authorities will not have sufficient
resources to enable them to take on the responsibility, effectively,
for assessing and monitoring the school as well as the individual
placement. At the moment, if a school is approved, the local authority
need not concern itself with...the organisation or standards at
the school: it simply needs to consider whether it can meet the
child’s needs...Should local authorities have the resources
to carry out this new responsibility, they may seek to impose further
burdens on
schools”—
that is,
of course, if they have the capacity to carry out their individual
assessments. It goes
on:
“If local
authorities believe that they have additional duties to vet such
schools, there is a danger that they will impose additional checks
(quasi-inspections) and requirements on these schools which could
adversely affect their independence and increase the
costs”.
The ISC
also points out in its written submission
that
“none of the schools
approved under”
section
347 which are part of the ISC’s
membership,
“or, indeed,
any other s. 347
schools”
which are not ISC
members
“has requested any
change to the existing system of approving schools or individual
placements...ISC would therefore question the need to make any
changes to a system which is functioning well—our schools
believe that the Department’s team dealing with s 347 approvals
provides an excellent service—and has not experienced any
significant
problems.”
That is praise
indeed, again, for the Minister’s Department. Paragraph 59 of
the written submission
says:
“Schools
see their s 347 approval as a quality standard or kite mark which
assures
everyone”.
Therefore,
removing
“this approval
mechanism, takes away this quality
assurance”.
The
ISC makes clear that the approval regime was introduced in the
Education Act 1981, in response to recommendations in the Warnock
report, to which my hon. Friend alluded. That report was critical of
the unregulated nature of local authority placements in independent
schools. The ISC goes
on:
“There is,
therefore, a serious concern that by removing the s 347
approval mechanism, there may be a return to the previous system, which
was found to be in need of
reform.”
There
is a wider debate to be had about the tendency of many local
authorities, for reasons of cost and sometimes of ideology, not to
place children with special needs in special schools, or at least to
put barriers in the way and make it difficult for all but the most
persistent parents to obtain an assessment or statement of special
educational need and to get the placement that they seek.
Therefore,
“In one respect, ISC
recognises that the proposals may enable local authorities to place
children with statements of SEN in a wider range of independent
schools...However ISC would...fear that...local
authorities in practice would take the opportunity presented to reduce
the number of placements in the independent sector...or there
could be an increase in the number of students placed inappropriately
at schools which...may not offer the safeguards of specialism and
quality present under the current s 347 approval
mechanism.”
That is a real
danger, given that there is already a tendency in local authorities to
resist sending or allowing parents to send their children to special
schools, whether in the independent or the maintained
sector.
The ISC makes
the further important point that the special educational needs and
disability tribunal
“can
only name the school if it is approved or if the Secretary of State
gives consent for the individual child to attend...If, in the
future, the local authority will be solely responsible for deciding
whether a school is suitable for a particular child, we would argue
that this creates a significant conflict of interest and places in the
Tribunal in an impossible position. It would seem inequitable for an
authority to, in effect, defeat an appeal against its decision by
saying that it does not consider the parent’s preferred school
as suitable and that the Tribunal, therefore, could not place a child
there in any event. On the other hand, the tribunal is unlikely to have
sufficient evidence to allow it to assess whether the local
authority’s judgment about the school is
sound”.
There
are multiple concerns expressed by the ISC which I have had the
pleasure of conveying to the Committee. The Minister needs to think
again about whether something that is working well should be removed
and abolished for whatever reasons he has for making this proposal in
the first place. I look forward to hearing his response to the
ISC’s genuine
concerns.
Jim
Knight:
I am hugely grateful to the hon. Gentleman for his
praise of my Department’s officials, who indeed do a fine job.
The proposals to transfer this function are no reflection on their
professionalism or capability.
The requirement for independent
schools to meet additional conditions of approval when local
authorities are considering placing children with statements of special
educational needs was carried forward in the Education Act 1996. At the
time, that was intended as a means of protecting the most vulnerable
children with SEN. The introduction of the independent schools
standards in 2003, which all independent schools have to meet, has seen
a marked improvement in the standards that apply across the board in
the independent schools sector. Indeed, the standards against which all
independent schools are judged—this is the significant
issue—are now higher than those set out for approved schools.
The requirement to seek approval which marks out the separate category
of school is therefore simply legal and bureaucratic. It fulfils no
function whatsoever in providing additional safeguards for children
with special educational needs.
In respect of burdens on local
authorities, under current legislation, a local authority has to decide
whether an independent school is a suitable placement. The fact that an
independent school is approved under section 347 does not reduce an
authority’s work in determining whether it is a suitable
placement for that individual. That duty on local authorities will not
change with the proposed changes in the Bill. They will
still be able to access lists of independent schools that are specially
organised for pupils with SEN, describing what type of SEN the schools
cater for. They will then have to determine whether a school can meet
the individual needs of the
child.
Mr.
Gibb:
I accept that point, but assessing whether the
school is a suitable institution for the child to attend is different
from having to assess the quality of a school. That places a whole new
burden on local authorities. They do not just have to ask whether a
particular type of school is right for a child with these particular
special educational needs. They now have an additional burden placed
upon them to assess whether that school is a good-quality school per
se.
Jim
Knight:
Perhaps the hon. Gentleman, who I know is
assiduous, missed my point that all independent schools will have met
the standard for all independent schools, which is higher than that
required for an approved school. The local authority therefore does not
need to concern itself about the standard but simply about whether the
school is appropriate for the individual child. The proposed changes
will, however, remove the need for a local authority to seek consent
from the Secretary of State to place a child with special educational
needs in an independent school. Under current legislation, around 700
requests are received from local authorities seeking consent from the
Secretary of State for placements. The changes proposed in clause 129
will remove this burden on local authorities and we estimate that the
documentation to support a request for consent takes 350 days a year of
local authorities’ SEN officers’ time. This equates to a
monetary saving to local authorities of approximately £120,000
per year.
The
requirement for a local education authority to seek consent from the
Secretary of State to place a child with a statement of special
educational needs in an non-approved independent school is an
unnecessary administrative burden.
There are safeguards in place
for parents of children with statements of special educational needs.
Where there are disagreements between parents and local authorities
about provision and placements of children with SEN, parents have the
right of appeal to the special educational needs and disability
tribunal. Decisions of the tribunal are binding on both parties. The
tribunal would still need to be satisfied that an independent school
was appropriate for the child. SENDIST already considers that and does
not rely on the mere fact of approval, for all the reasons I set out.
The tribunal stands in the shoes—to adopt a
colloquialism—of the local authority for that purpose.
I am confident that
the existing statutory duties of local education authorities for
children with SEN, together with the strengthened guidance and improved
standards for the independent sector as a whole, remove the requirement
for a separate category of independent school and for local authorities
to seek consent for a child to be placed in an independent school. I
hope that the Committee supports the clause.
Question put and
agreed
to.
Clause 129
ordered to stand part of the Bill
The
Chairman:
It is my job to do what I can from the Chair to
protect the rights of all Members. I notice that there are still five
groups of Government amendments on the Order Paper for discussion.
These will be put to a vote, whether or not we have a debate on them.
There is also one further group of Conservative amendments, Liberal
Democrat amendments and four groupings of Liberal Democrat new clauses.
We have just over half an hour to go, so if colleagues want to ensure
that all Members have the opportunity to put proposals, we must make
progress as quickly as we can.
Mr.
Marsden:
On a point of order, Mr. Bailey, I
seek your guidance on clause 133. Some weeks ago, I tabled amendment
No. 161, which would omit clause 133. If my memory serves me correctly,
it originally turned up as an amendment on the selection list. It is
not there now so I seek your guidance on how you plan to deal with
that.
The
Chairman:
The amendment was to leave out clause 133.
Amendments to leave out a clause are ruled out of order because the
mechanism for a Member to achieve that aim would be to speak against
the clause standing part of the Bill. With the leave of the
Committee,
Clauses
130 and 131 ordered to stand part of the
Bill.
The
Chairman:
Given the confusion this morning, it might be
convenient for Members on both sides of the Committee if I say that my
reading of amendment No. 186, which is out of order, is that it is the
Government’s intention to oppose the motion that clause 132
stand part of the Bill because they intend, at a later point, to move
that a replacement clause, new clause 6, is
opposed.
Clause
132
Powers
of National Assembly for
Wales
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
With this it will be convenient to take
Government new clause 6— Powers of National Assembly for
Wales.
Jim
Knight:
It is our intention to seek to remove clause 132.
We do not support clause 132 and, at whatever point you wish me to, I
would want to move Government new clause 6.
The
Chairman:
If you wish to speak to it, you should speak
now. You will formally be asked to move it when we get to that point in
the Bill.
Jim
Knight:
I have already referred to new clause 6 in
previous debates, so I do not need to detain the Committee simply to
say that we are adding two new framework powers. The reason for
replacing clause 132 with new clause 6 is to bring in the second
framework power and merge them into one clause, which is neater in
drafting terms. That is the basis for that particular
change.
Nia
Griffith (Llanelli) (Lab): It gives me great pleasure to
add a comment on Government new clause 6 as we approach St.
David’s Day and have this opportunity to celebrate the
devolution settlement in Wales. Members of the Committee will be aware
that there are a number of ways in which the National Assembly for
Wales can exercise its powers. With a Bill such as this, it can use
framework powers to introduce similar measures in Wales. It is entirely
appropriate that the Assembly should have that option and I know that
many people in Wales will be looking eagerly to the Assembly to
determine how the issues that we have debated at much length here will
be dealt with in Wales. Given the time restraints, I leave my comments
there.
Jim
Knight:
I am grateful to my hon. Friend the Member for
Llanelli for raising this matter. Naturally, I do not seek to interfere
in matters Welsh where it is inappropriate for me to do so, but I will
certainly reflect on what she said. I will pass on and discuss the
comments with the Under-Secretary of State for Wales and, if we think
it appropriate to address this on report, we certainly will.
Question put and
negatived.
Clause
132 disagreed
to.
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