|Apprenticeships, Skills, Children And Learning Bill - continued||House of Commons|
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593. The Education Act 2002 gives the Secretary of State power to issue orders about teachers pay and conditions in England and Wales - see section 122 of that Act. The School Teachers Pay and Conditions Document has been included in an order under that section.
594. Paragraph 4 of Schedule 13 to the Bill inserts a new section 60A in the Education and Inspections Act 2006. The new section introduces a system of teachers pay and conditions warning notices which allows LEAs to issue a notice to the governing body of a maintained school where the LEA are satisfied that the governing body has failed to comply, or failed to secure compliance by the head teacher, with the provisions of an order under section 122 of the 2002 Act relating to teachers pay and conditions (including the School Teachers Pay and Conditions Document).
595. Section 60A also provides that if a teachers pay and conditions warning notice is given and, after a compliance period, the governing body has not complied with it or successfully made representations to the LEA against it, the school will become eligible for intervention. The LEAs and the Secretary of States current powers under Part 4 of the 2006 Act will then be available (save for those powers set out in section 63 which give LEAs the power to require a governing body to enter into a contract or arrangement with a view to improving performance, and those set out in section 68 which give the Secretary of State power to direct the closure of a school). These are:
596. Paragraph 6 of Schedule 13 to the Bill amends section 64 of the Education and Inspections Act 2006 so that where a school is eligible for intervention under Part 4 of the 2006 Act an LEAs power to appoint additional governors will not be available if the Secretary of State has already appointed additional governors under section 67.
597. Paragraphs 8 and 9 of Schedule 13 amend sections 67 (power of Secretary of State to appoint additional governors) and 69 (power of secretary of State to provide for governing body to consist of interim executive members) so that the Secretary of States powers will also be available in a case where a school is eligible for intervention by virtue of a warning notice under section 60 (performance standards and safety) or 60A (teachers pay and conditions). Formerly these reserve powers were available only when the school was eligible for intervention because it required significant improvement or special measures.
598. Paragraph 10 of Schedule 13 makes further provision about warning notices given in relation to performance standards and safety or teachers pay and conditions by inserting new sections 69A and 69B in the Education and Inspections Act 2006. Section 69A gives the Secretary of State power to direct an LEA to consider giving a performance standards and safety warning notice to a governing body school if he or she thinks that there are reasonable grounds for the LEA to do so. The Secretary of States direction must be in writing and the LEA must provide a written response, copied to Her Majestys Chief Inspector of Schools within 10 working days. If the LEA agree to issue a warning notice they must do so - copied to the Secretary of State - within five working days of their response to the Secretary of State and withdraw any previous warning notice given to the governing body under section 60. If the LEA decides not to issue a warning notice they must set out the reasons for the decision in their response to the Secretary of State.
599. New section 69B gives the Secretary of State a power to direct an LEA to consider giving a teachers pay and conditions warning notice to a governing body if he or she thinks that there are reasonable grounds for the LEA to do so. The Secretary of States direction must be in writing and the Authority must give a copy to the schools governing body, and then provide a written response (including any response from the governing body) to the Secretary of State within 10 working days. If the LEA agree to issue a warning notice they must do so copied to the Secretary of State within five working days of their response to the Secretary of State and withdraw any previous warning notice they had issued to the governing body under section 60A.
600. If the LEA decides not to issue a teachers pay and conditions warning notice to they must set out the reasons for the decision in their response to the Secretary of State. The Secretary of State may then direct the LEA to give a warning notice in the terms specified in the direction and to withdraw any previous warning notice they had issued to the governing body under section 60A.
601. This clause amends section 62A of the Education Act 2002. Section 62A currently gives the Secretary of State the power to require LEAs in England to obtain advisory services where:
602. The advisory services can be supplied by an organisation, school or named person, who would provide advice to the LEA for the purposes of school improvement.
603. Subsection (2) inserts an additional trigger for the Secretary of States power to require the LEA to obtain advisory services. The new trigger allows intervention when there are a disproportionate number of low-performing schools within the LEAs remit and it appears to the Secretary of State that the LEA are unlikely to improve standards in those schools or in other schools in their area which may in the future become low-performing.
604. Standards of performance of pupils at a school are assessed by reference to the matters set out in new section 62A(1C), which provides that the standards of pupils when they joined the school and the standards achieved by pupils at similar schools may be taken into account.
605. This Schedule gives effect to Schedule 14 which contains the Welsh provisions corresponding to those in Schedule 13 for England. The amendments are to the School Standards and Framework Act 1998, and have broadly the same effect as those made in relation to teachers pay and conditions in England by Schedule 13, except that the Welsh Ministers rather than the Secretary of State have reserve intervention powers.
606. Under the current processes, when a parent or pupil is concerned about an issue arising from their individual experience at school, they can contact the teacher or head teacher of a school. If the issue remains unresolved they can contact the governing body of the school (or management committee in the case of a pupil referral unit)
607. If the complainant remains unhappy, once the governing body has looked into their complaint, they may approach the Secretary of State under section 496 or 497 of the Education Act 1996 and ask him to consider their complaint. The Secretary of State must consider that the governing body has been acting unreasonably and that it is expedient to intervene. In practice there are few occasions when a direction may be made.
608. These clauses create a new scheme for complaints and amend section 496/7 in respect of complaints heard by school governing bodies which have been brought to the attention of the Secretary of State and repeal section 409 and paragraph 6(3) and (4) of Schedule 1 to the Education Act 1996. The Government intends that the Secretary of States role will be replaced by a new parents and young persons independent complaints service (referred to in clauses as the Local Commissioner).
609. The Local Commissioner will be able to consider complaints about school issues affecting a particular pupil where they maynot appeal by another independent route.
610. Complaints and appeals relating to school admissions dealt with by the local education authority or governing body, permanent school exclusions and special educational needs will not fall within the scope of the Service as they have their own independent appeals processes. Special educational needs cases which are currently within the remit of the First-Tier Tribunal (previously known as SENDIST) will also be outside the scope of the Service.
611. The clause specifies who may approach the Local Commissioner under the new independent service (the Service). The Commission for Local Administration and The Local Commissioner are statutory names but they are generally known as the Local Government Ombudsman.
612. A qualifying school is a community, foundation, or voluntary aided school, community special or foundation special school, maintained nursery school or a short stay school. The Secretary of State may add to or amend this definition by order (made under clause 207) which would be subject to the affirmative resolution procedure.
613. The clause provides that a complaint against a school may be made where a pupil or parent claims to have suffered injustice because of the actions, or omissions, of the governing body or by the head teacher exercising, or failing to exercises functions of a kind specified in regulations under this section. Where the head teacher delegates their authority to another member of staff, the head teacher remains legally accountable for the member of staff complying with that action.
614. Where a governing body makes arrangements for another individual or body to carry out functions on its behalf, this will also be capable of referral to the Service. For example, where a school contracts out services for an after school club, a parent or pupil could make a complaint about an act that occurred whilst a pupil was attending this provision, despite the fact that it was not run directly by the governing body.
615. Where a pupil is educated off the site of the school this will also be included within the remit of the Service. For example, a pupil might be on the roll at one school but may attend some lessons at another school. This can happen in cases where a pupil is on roll at a short stay school but attends a mainstream school as part of their education.
616. People acting on the governing bodys behalf can be complained about. This includes a person employed by a local education authority or outside agency as they will be carrying out actions with the governing bodys permission.
617. Complaints and appeals relating to school admissions dealt with by the local education authority or governing body, permanent school exclusions and special educational needs will not be capable of referral to the Local Commissioner as they have their own independent appeals processes. This also applies to cases that are currently within the remit of the First-Tier Tribunal (previously known as the Special Educational Needs and Disability Tribunal (SENDIST)).
618. A parent or pupil may approach the Local Commissioner asking them to investigate their complaint. Parent includes anyone who has parental responsibility for a child or who has care of him or her. The Local Commissioner will be able to consider complaints from carers as well as parents and young people.
619. The clause enables the Local Commissioner to investigate the complaint made by the complainant. Where head teachers or governing bodies have considered the complaint and feel the complaint should be referred to the Local Commissioner, they may do so with the complainants consent. For example, a head teacher or governing body may feel they have done all they can to assist the complainant and the Local Commissioner may be able to resolve the issue.
620. Before proceeding to investigate a matter the Local Commissioner must be satisfied that the governing body had notice of the matter complained about and an opportunity to investigate and respond, or that it is not reasonable in the circumstances to expect the matter to be brought to the attention of the governing body (subsection 3(b). A Local Commissioner is able to use discretion to take a flexible approach and proceed with an investigation if satisfied that it is not reasonable to expect the matter to have first been brought to the attention of the governing body.
621. The Local Commissioner is able to investigate or discontinue (for example, vexatious or malicious) complaints as it feels appropriate. If the Local Commissioner is satisfied with the steps the school is taking or is going to take, it may decide not to investigate the complaint.
622. This clause requires complaints to be made in writing within 12 months of the incident occurring. A Local Commissioner may disapply these requirements. For example where a pupils particular circumstances or level of education made it difficult for them to put the complaint in writing it may be given orally. Complainants raising complaints with the Local Commissioner after the 12 month period must show a good reason for doing so.
623. This clause sets out the processes involved in the Local Commissioner considering a complaint. It ensures that the governing body or head teacher about whom the complaint was made and any other person involved are allowed the opportunity to comment. Investigations must be carried out in private. But otherwise it is for the Local Commissioner to decide how to conduct the investigation. The Local Commissioner may obtain information and make enquiries from any person as they see fit.
624. If the Local Commissioner sees fit it may choose to pay any persons a sum incurred by them or an allowance for loss of their time for the purposes of carrying out the investigation.
625. The clause gives the Local Commissioner various powers in order to facilitate their investigations. The Local Commissioner may require a governing body, head teacher, or any other person who in the Local Commissioners opinion is able to provide information or documents relevant to the investigation, to provide such information or documents.
626. The Local Commissioner has the same powers as the High Court to compel the attendance and examination of witnesses and the production of documents. This means that anyone not complying with the Local Commissioners requests may be in contempt of court and subject to the penalties associated with that. Any person who obstructs an investigation, or is guilty of an act or omission in relation to an investigation which would constitute contempt of court in proceedings in the High Court, the Local Commissioner may certify this as an offence to the High Court. The High Court may then deal with the person charged as though they had committed the same offence in relation to the High Court.
627. This clause provides for statements to be issued by a Local Commissioner when he decides not to investigate or to discontinue an investigation, and when an investigation is completed. If the Commissioner decides not to investigate or to discontinue an investigation, the statement must set out the Commissioners reasons for that decision.
628. When a Local Commissioner has completed an investigation, the statement must set out the Commissioners conclusions and any recommendations. The Commissioner may make recommendations for action which, in the Commissioners opinion, the governing body needs to take to remedy any injustice sustained by the person affected. Recommendations may also be aimed at preventing injustice being caused in the future as a result of similar action of the governing body or head teacher. For example, the Commissioner might recommend an apology to the pupil, or changes to the schools discipline policy.
629. The Commissioner must send a copy of the statement to the complainant, or, if the complainant is the pupil and the Commissioner thinks it appropriate, the parent) the governing body and head teacher. The statement must identify the school concerned. It will then be for the Local Commissioner to decide whether it is appropriate for the individual to be identified. The statement must not identify the complainant or any other person unless the Commissioner considers it necessary to identify that person.
630. This clause requires a governing body to consider any statement containing recommendations by a Local Commissioner and notify the Commissioner within the required period as set by the Local Commissioner of the action which the governing body has taken or proposes to take. If by the end of that period, the Local Commissioner has not received this notification, or is satisfied before the period expires that the governing body has decided to take no action, the Local Commissioner may require a governing body to publish an adverse findings notice. The Commissioner may also do this in two other circumstances: first, if not satisfied with the action which the governing body has taken or proposes to take; or second, if, after a further month following the end of the notification period (or any longer period agreed in writing by the Local Commissioner), the Commissioner has not received satisfactory confirmation that the governing body has taken the proposed action.
631. An adverse findings notice, in a form agreed between the governing body and a Local Commissioner, should include details of any action recommended in the Local Commissioners statement which the governing body has not taken, any supporting material required by the Local Commissioner, and an explanation of the governing bodys reasons for not having taken the recommended action (if the governing body wishes). The adverse findings notice must be published by the governing body in a manner directed by the Local Commissioner. The Local Commissioner might, for example, require publication in a local newspaper or, if the school has one, on its internet site.
632. A Local Commissioner must publish an adverse findings notice if the governing body fails to do so in accordance with subsections (4) and (5), or cannot agree the form of the notice with the Local Commissioner within one month of the date the notice was received (or longer if agreed in writing by the Local Commissioner). Subsection (7) requires the provider to reimburse the LGO on demand any reasonable expenses incurred by the Local Commissioner in performing the duty under subsection (6).
633. A Local Commissioner may publish all or part of a statement under clause 199, or publish a summary of a statement. In deciding whether to publish a statement the Commissioner must take into account the public interest as well as the interests of the complainant and of other persons. The Local Commissioner may also supply a copy of all or part of a statement to anyone who requests it, and charge a fee for this. This fee must be reasonable and any fees charged are unlikely to be significant. Subsections (8) and (10) of clause 199 apply to a Local Commissioners publication of a statement or supply of any copy under this section. That means that, for example, the summary must not identify the complainant or any other person (other than the school) unless the Commissioner considers it necessary to identify that person.
634. These clauses restrict the disclosure by a Local Commissioner of information obtained during the course of an investigation. Information obtained must not be disclosed except for the purposes specified. Particular exemptions allowing disclosure of information include, for example, disclosure for the purposes of a complaint being investigated by Her Majestys Chief Inspector of Education, Childrens Services and Skills, a local education authority under section 12 of the Education Act 1996 and the Secretary of State.
635. This clause provides that the Local Commissioner must prepare a report on the discharge of its functions for each financial year to the Commission for Local Administration in England (the Commission). The Commission must then prepare an annual report which must be laid before Parliament.
Clause 205: Secretary of States power of direction
636. This clause enables the Secretary of State to make a direction to a governing body that has not complied with a recommendation from the Local Commissioner. The Secretary of State may direct a governing body to comply within a specified period. That direction is enforceable by a mandatory order.
Clause 206: Disapplication of certain powers of Secretary of State
637. This clause amends sections 496/497 of the Education Act 1996. Currently, complainants may approach the Secretary of State asking him to consider the complaint. But for the Secretary of State to intervene the governing body has to be acting unreasonably and it must be expedient to intervene. In practice there are few occasions where the Secretary of State may issue a direction where the head teacher or school has failed in its statutory duty.
638. The effect of the amendments is that the Secretary of State can no longer make a direction in relation to complaints against governing bodies of schools that have or could have been made to the Local Commissioner. Instead, the complainant may approach the Local Commissioner if they are not satisfied with the governing bodys response. After investigation into the complaint, the Local Commissioner will be able to recommend that the school undertake a course of action to remedy an injustice suffered by a particular individual.
639. The Local Commissioner will offer a scrutiny that is independent of central Government and will be able not only to consider if a school has been acting unreasonably or unlawfully (which is the scope of the Secretary of States current practice) but also to recommend that a governing body carry out a remedy.
640. Regulations may prescribe that the Secretary of State may make a direction in relation to a matter that could have been referred to the new scheme where the complaint is from a prescribed person. The Government envisages that such prescribed persons might include the local education authority or governing bodies of other schools.
641. This clause enables the types of schools that are covered by the scheme (qualifying schools) to be added to, or amended by order at a later date. This order would be subject to the affirmative resolution procedure.
642. The Local Commissioner will be able to consider complaints relating to the National Curriculum where it affects an individual pupil. Previously, local education authorities had a role in the complaints process under section 409 of the Education Act 1996 and paragraphs 6(3) and (4) of Schedule 1 of the Education Act 1996. These sections have been repealed so that complainants are able to approach the Local Commissioner under the new scheme.
Clause 209: Interpretation of Chapter 2
643. This clause provides that the definitions of the terms act, Local Commissioner and respondent provided in the relevant clauses apply throughout Chapter 2.
Clause 210: Interim statements
644. This clause inserts three new sections into the Education Act 2005 in relation to the powers of the Chief Inspector and associated duties of schools.
645. Section 10A enables the Chief Inspector to publish an interim statement (which it is expected will be commonly known as a health check) where the Chief Inspector considers that a schools performance is such that it is appropriate to defer a routine inspection of the school for at least a year. The statement must set out the Chief Inspectors opinion that inspection can be deferred and the reasons for that opinion. It is made on the basis of information available at the time and does not prevent the Chief Inspector from inspecting the school at any time if this is deemed necessary in light of changed circumstances. As its name indicates, the statement is only an interim measure. It cannot be used to defer an inspection beyond the end of the maximum period allowed between scheduled inspections.
646. Section 14A applies in cases where the Chief Inspector makes an interim statement about a community, foundation or voluntary school, a community or foundation special school, or a maintained nursery school. Subsections (1) to (3) of 14A require the Chief Inspector to send a copy of the interim statement to the appropriate authority of the school (either the governing body or the local education authority) and to other specified people. Subsection (4) of 14A requires the appropriate authority of the school to make the statement available to members of the public and to take steps to ensure a copy of the statement is received by parents within a prescribed period.
647. Section 16A broadly mirrors the provisions in section 14A but applies to Academies; city technology colleges, city colleges for the technology of the arts; and special schools which are not community or foundation special schools but are for the time being approved by the Secretary of State under section 342 of the Education Act 1996. Under section 16A, the Chief Inspector must send a copy of the interim statement to the schools proprietor and others.
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