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MEMORANDUM submitted by THE National
Introduction
1. The National Union of Teachers is the largest teachers' organisation in Europe. The NUT organises teachers across England and Wales and as an independent organisation not affiliated to any political party seeks to influence through its liaison with parliamentarians across all parties.
2. The purpose of this memorandum is to provide a commentary on the key proposals of importance to the NUT in the Apprenticeships, Skills, Children and Learning Bill and to identify to the Bill Committee areas where we believe clarification or amendments would be useful. These issues will be expanded upon in the NUT's oral evidence to the Bill Committee on 5 March 2009.
Summary
3. The NUT's main concerns are to ensure that:
· Employers are encouraged by legislation to accept, rather than refuse, requests from their employees for time to undertake a training course or period of study.
· The new bodies Ofqual and the Qualifications & Curriculum Development Agency (QCDA) are properly accountable and subject to parliamentary scrutiny. Both bodies should be required to follow proper consultative procedures. There should be independent scrutiny of the National Curriculum and its assessment arrangements.
· That while Children's Centres remain responsive to the specific needs of their local community their core focus is the provision of education and care rather than a multiplicity of other services.
· Local authorities should not be able to second-guess school inspections on whether school standards are unacceptably low or use warning notices inappropriately.
· The extension of the power for schools and colleges to search pupils without consent is on the premise of preventing potential or imminent harm to the pupil or to others and framed within headteachers' professional judgement.
Key concerns
Part 1: Apprenticeships, Study & Training
Chapter 2 - Right to request time to study or train
4. Whilst welcoming the right for employees to request from their employer time to undertake a training course or period of study (clause 39), the NUT is concerned about some limitations in the provision.
5. The grounds on which an employer could refuse a request are so numerous the provision could effectively be neutered.
6. It is envisaged in the Bill that a permissible ground for refusal would be 'the burden of additional costs' (page 20, line 20). The NUT believes that additional costs should only be a ground for refusal if they were unreasonable in proportion to the value to be derived from the proposed study or training.
7. The NUT would also be keen to ensure that agency workers and therefore supply teachers could qualify for the right to request time to study or train under clause 39.
Part 3: Young Person's Learning Agency
8. Part 3 of the Bill establishes a new body, the Young People's Learning Agency (YPLA) to "support and enable local authorities to carry out their new duties". It is intended that Academies will remain independent of local authorities and the Secretary of State shall pass a range of his or her responsibilities for Academies, as yet unspecified, to the YLPA. The NUT believes that Academies should be subject to democratic accountability and to the same regulatory framework as other schools. An amendment to this part of the Bill that sought to increase the accountability of Academies would be welcome.
9. The NUT will be seeking further clarification on the role of the YPLA in relation to the functions of local authorities. The NUT, in particular, cannot understand why local authorities are to be prevented from establishing 16 to 19 provision as set out under part 6 of the Bill. [It is interesting to note here that despite the provision under section 162 Education and Inspections Act 2006[1] the Bill still refers to local education authorities (LEAs) rather than local authorities.]
Part 6: Sixth Form Colleges
10. The NUT welcomes the proposal to define Sixth Form Colleges as a separate category of institution. They achieve among the highest value-added measures in the education service. Despite constant assurances of Government support, they have fallen in number from over 120 at the time of their creation as independent institutions in 1993 to just below 100 today, largely due to pressures from local LSCs to amalgamate with general FE colleges. It is hoped that this Bill and other measures will help ensure that existing sixth form colleges are not lost and assist the creation of further Sixth Form Colleges.
11. The NUT would like to explore whether there is any scope for the Bill to provide for a review of the funding system for post-16 education to ensure equal funding for Sixth Form Colleges and schools for 16-19 students. At present there is still a funding gap, estimated last year by KPMG to be some 6% compared to 16-19 funding for schools[2]. While confirmation of the charitable status of Sixth Form Colleges is welcome, the NUT will be seeking to ensure that consideration is given to bringing the VAT status of Sixth Form Colleges into line with that for schools.
12. While the Bill precludes 16-19 schools, it intends that local authorities can propose new Sixth Form Colleges. Clarification would be welcome as to whether local authorities will continue to be able to broker school sixth form consortium arrangements involving several schools.
13. Greenwich and Haringey have recently set up "sixth form centres" which have not been described as schools. It would be helpful, if during the progression of the Bill, it could be clarified if these are technically 'schools'.
Part 7: Establishment of the Office of Qualifications and Examinations Regulation (Ofqual)
14. The Bill provides for the set up of Ofqual on a formal basis, equipping it with new powers. The NUT's view is that:
· Ofqual needs to be a genuine independent authority regulating public exams and maintaining confidence. Its ability to validate examinations should not be constrained by the ability of the Government to refuse to fund any new examinations it approves.
· Ofqual should be required to conduct a regular review of the National Curriculum assessment arrangements to ensure their validity and reliability.
· Ofqual need to be fully accountable and subject to proper parliamentary scrutiny.
Part 8: Establishment of the Qualifications & Curriculum Development Agency (QCDA)
15. The Bill provides for the replacement of the Qualification & Curriculum Authority by the Qualifications and Curriculum Development Agency.
16. The NUT considers it to be of vital importance that publicly available independent advice is given to the Government on curriculum and assessment.
Part 9: Children's Services
17. The NUT has some reservations about making Children's Trust Boards statutory and would oppose any requirement on schools to provide separate reports on pupil behaviour to them. Rather than giving more power to what could be described as unaccountable local quangos the NUT believes the Bill should provide for the establishment of Children's Services Forums whose membership would consist of representatives of schools, teacher and support staff unions, students, parents and governors.
18. Sure Start Children's Centres should be set up on a statutory basis but it is vital they are required to concentrate on their main responsibilities of providing education and care and not on a multiplicity of other services.
19. New section 5B creates a power for the Secretary of State to make regulations about the staffing, organisation and operation of children's centres. According to the Explanatory Notes the regulations might be used "to require that children's centres each have a centre leader, or to impose requirements about the qualifications which staff members must have"[3]. The NUT would be concerned to ensure that every children's centre was led by a properly qualified early years teacher and will be seeking further clarification about the scope of this section.
Part 10: Schools
Chapter 1 - Schools Causing Concern
20. Paragraph 4 of Schedule 13 amends the Education and Inspections Act 2006 to introduce teachers' pay and conditions warning notices. Local authorities will be given powers to issue warning notices to schools which do not comply with the School Teachers' Pay and Conditions Document (STPCD). The Secretary of State will also be given powers to direct local authorities to issue pay and conditions warning notices to schools. While, of course, a school not meeting its contractual requirements is a serious cause for concern this provision sits oddly in this section of the Bill.
21. The key question is whether or not the new provision as drafted might instead act as a restraint on legal recourse to the failure by governing bodies to implement the STPCD by giving the power to LEAs to issue a warning notice. The existence of that power may be preyed in aid by those who would wish to obstruct an early intervention to enforce the STPCD.
22. The NUT welcomes the intentions behind this initiative which are aimed at ensuring that teachers receive the full benefit of provisions relating to working time to which they are entitled under the STPCD.
23. The NUT is, however, concerned by the proposals to require local authorities to consider issuing performance standards and safety warning notices. The Education and Inspections Act 2006 has been amended to give the Secretary of State power to direct local authorities to issue performance standards and safety warning notices to schools. This is an unnecessary and heavy-handed extension of the Secretary of State's powers in schools.
Chapter 2 - Complaints
24. There are very few complaints against schools. OFSTED already has the ability to intervene if a complaint is made. There is concern amongst teachers and head teachers that this provision is at best unnecessary and at worst may further complicate existing complaints structures. The NUT will be concerned during the course of the Bill to ensure that schools and teachers are protected from frivolous, unreasonable or vexatious complaints from parents or children. The NUT welcomes, therefore, the tabled amendment to Clause 195 which, if enacted, would allow the Local Commissioner to drop an investigation if they consider 'complaints to be vexatious or malicious'.
25. This section is also inconsistent. This part of the Bill does not apply to Academies. Clause 194 describes a "qualifying school" as a community, foundation, or voluntary aided school, community special or foundation special school, maintained nursery school or a short stay school.
Chapter 3 - Inspections
26. While six years between inspection is clearly a long time it is questionable whether or not there is a need for an interim health check if School Improvement Partners and local authorities are fulfilling their role as a 'critical friend'. Rather than simply ratcheting up the current inspection model with school inspection heath checks the Government should initiate an independent review of how schools are evaluated with the criteria that inspection should aid improvement, not punish.
Chapter 4 - School Support Staff Pay & Conditions
27. The NUT welcomes the establishment of a national negotiating body for school support staff (SSSNB) under clauses 221 to 228 and schedule 15. This provides for national collective bargaining on terms and conditions between employers and trade unions representing school support staff.
28. This contrasts sharply with the School Teachers Review Body (STRB) system, which denies teachers and their representatives the opportunity to negotiate with their employers on matters of pay, working time and professional duties. The NUT wishes to see the current STRB system reconsidered. A return to fully free collective bargaining for school teachers would have many different features to the proposed SSSNB. The creation of the SSSNB, however, gives good reason for the current STRB system to be reconsidered.
Part 11: Pupil Behaviour
Power to search for prohibited items
29. The Bill under clauses 229 to 232 extends the existing powers for schools and colleges to search pupils without consent for weapons (introduced as part of the Violent Crime Reduction Act 2006) to include alcohol, illegal drugs and property suspected of being stolen.
30. In the NUT's view any extension of the power to search without consent should be on the premise of preventing potential or imminent harm to the pupil or to others. The NUT would like to see this principle set out in the Bill in order so there is a necessary test and consistency to the judgement of teachers in exercising the power to search.
31. Schools are overburdened with duties being thrust upon them. The NUT is concerned therefore to ensure that the Bill is framed in such a way to be seen exclusively as the extension of a power, not a duty to search. It should be made explicit in the Bill that not using the power to search is a professional decision which must be respected. Will the Government undertake to audit all existing legislation to ensure that there are no penalties for not using either the current or proposed extended powers to search?
32. The NUT agrees that membership of School Behaviour Partnerships to improve behaviour and tackle persistent absence should be a statutory requirement. In a recent NUT survey of members working in Pupil Referral Units (PRUs), 88% of respondents felt this would improve provision for individual pupils.
Recording incidents of force to control or restrain pupils
33. The Bill under clauses 233 and 234 requires schools and colleges to have procedures in place for the recording of significant incidents involving use of force by staff on pupils, and for the reporting of such incidents to parents.
34. The current NUT guidance to its members includes advice that procedures should be in place for the recording of significant incidents involving use of physical restraint by staff on pupils and that parents should generally be informed.
35. The NUT believes that decisions to report pupil restraint to parents should remain within headteachers' professional judgement in the context of the school's behaviour policy. The NUT is not convinced that the introduction of a statutory duty upon governing bodies to record and report is necessary at this time.
36. Rather than introducing a new duty, would it not be preferable to undertake research to ascertain whether headteachers are exercising their existing powers and if there is under-reporting of significant incidents?
37. This new duty would not offer teachers any higher level of protection from allegations from students or parents which are malicious or unfounded. Furthermore, it is difficult to see how it would generate any improvement in behaviour policies as it does not address training for de-escalation techniques or behaviour management.
Short Stay Schools
38. The NUT supports the change of name for alternative provision from Pupil Referral Units (PRUs) to Short Stay Schools under clause 236.
39. A name change should support a clear sense of purpose and direction for PRUs. Over 60 per cent of PRU teachers in the aforementioned NUT survey expressed concern about a need for clarity. A change of name should incorporate the word 'school' and emphasise the teaching and learning which units facilitate.
40. The NUT does not, however, support the proposed introduction of a power for the Secretary of State to direct local authorities to replace PRUs with a 'specified alternative' if they are deemed to be in need of special measures or have been given a notice to improve. Factors such as high staff turnover, leadership discontinuity and inadequate LA support would not be successfully tackled by closure or by replacement by privatised provision. Closure and replacement by private providers would undermine the outreach and behaviour support advice capacity of units.
41. The NUT believes that any decision to close a PRU and to hold a competition considers the impact of the closure on school links on a case-by-case basis, taking account of the community and category of pupil that the school serves and the views of the teachers and head teacher within the PRU. The Secretary of State should ensure closure does not reduce the extent of existing provision, especially provision catering for pupils with behavioural, emotional, or social difficulties. If the closure of a PRU is deemed necessary it is hoped that alternative arrangements are secured which safeguard the needs of the children concerned.
March 2009 [1] Power to repeal references to "local education authority" and "children's services authority"
[2] Funding Gap Research Project 2007: Final Report, January 2008, KPMG commissioned by the LSC
[3] Paragraph 549, Apprenticeships, Skills, Children and Learning Bill: Explanatory Notes
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