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These notes refer to the Children, Schools and Families Bill as introduced in the House of Commons on 19 November 2009 [Bill 8]
CHILDREN, SCHOOLS AND FAMILIES BILL
EXPLANATORY NOTES
INTRODUCTION
1. These Explanatory Notes relate to the Children, Schools and Families Bill as introduced in the House of Commons on 19 November 2009. They have been prepared by the Department for Children, Schools and Families in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. The Bill contains provisions on a range of policies which span the responsibilities of the Department of Children, Schools and Families.
4. The Bill contains legislative provisions to give effect to aspects of the White Paper Your Child, Your School, Our future: building a 21st Century Schools system (Cmd 7588), to introduce a system of “guarantees” for parents and pupils in the school system and to make changes to the way schools operate together. It also introduces a licensing scheme for teachers announced in the White Paper.
5. The Bill also implements the recommendations of a number of independent reviews.
Bill 8-EN 54/5
6. The Bill makes provision to introduce reform to the primary curriculum, recommended by Sir Jim Rose in the Independent Review of the Primary Curriculum (April 2009) (available at http://primarycurriculumreview) to introduce areas of learning at key stage 1 and 2.
7. It also provides for the implementation of the recommendations of Sir Alasdair MacDonald in the Independent Review of the proposal to make Personal, Social, Health and Economic (PSHE) education statutory (27 April 2009) (available at ), to make PSHE a foundation subject in the National Curriculum at key stage 3 and 4, and incorporating it into one of the areas of learning in the primary curriculum at key stages 1 and 2.
8. As recommended by Graham Badman in the Report to the Secretary of State on the Review of Elective Home Education in England (11 June 2009) (available at ), the Bill introduces a registration scheme for home-educated children in England.
9. The Bill also contains provision following the White Paper Back on Track: A strategy for modernising alternative provision for young people (published 20 May 2008) and the report of Sir Alan Steer Lessons Learned: Learning Behaviour (15 April 2009).
10. The Bill makes provision permitting greater access to the media in Family Court proceedings, and increasing the ability of the media to publish reports of those proceedings, and information released during hearings. On 16 December 2008 the Secretary of State for Justice laid the report Family Justice in View before Parliament. In his accompanying statement to the House he set out his intention to provide greater transparency of family courts.
11. Further background is included on these and the other elements of the Bill in the “Overall Structure of the Bill” section.
12. A glossary of abbreviations and terms used in these Explanatory Notes is included at the end of these Notes.
OVERALL STRUCTURE OF THE BILL
13. The Bill consists of 3 Parts and 5 Schedules. The Bill is arranged as follows:
Part 1: Children and Schools
14. This Part provides for the introduction of pupil and parent guarantees, and amendments to existing provisions on home-school agreements. It also provides for local authorities to conduct parental satisfaction surveys annually and to prepare response plans where there is material parental dissatisfaction with the provision of schools in an area.
15. It requires school inspections by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills (“the Chief Inspector”) to take into account the needs of pupils who have a disability or special educational needs (SEN). It provides for an additional right for parents of children with SEN to appeal to the Tribunal when a local authority decides not to alter a child’s statement following a review under section 328(5)(b) of the Education Act 1996 (“EA 1996”).
16. It makes changes to existing legislation on exceptional provision for those children who are not being educated in a school, or at home.
17. It makes changes to the primary curriculum in maintained schools to introduce areas of learning in place of foundation subjects at key stages 1 and 2 and to the curriculum in maintained schools and Academies to introduce Personal, Social, Health and Economic (PSHE) education as a foundation subject at key stages 3 and 4.
18. The Part makes changes to the powers of governing bodies of maintained schools in England to allow them to use their delegated budget to spend money on wider community purposes, and to allow designated governing bodies to be involved in the establishment of new maintained schools and Academies.
19. It makes provision for expanding the remit of school improvement partners. In order to provide for the introduction of the “School Report Card”, it expands the Secretary of State’s existing powers to request information from schools, and introduces a new power for the Secretary of State and the Welsh Ministers to request information relating to education provided under section 19 of the EA 1996. It repeals the existing statutory requirement for a school to prepare and publish a school profile.
20. The Part increases the powers of local authorities and the Secretary of State in relation to failing schools.
21. It makes provision for the introduction of a licence to practise for teachers and for application for and renewal of that license, and connected purposes.
22. The Part introduces the registration scheme for home-educated children.
23. The Part confers power on Local Safeguarding Children Boards (“LSCBs”) in England and Wales to require the supply of information for the purpose of their functions. It makes provision for the Chief Inspector to review the operation of LSCBs.
24. The Part also makes provision for co-operation of Youth Offending Teams with the Youth Justice Board and for the Secretary of State to be able to give directions in relation to Youth Offending Teams.
Part 2: Family Proceedings
25. The provisions in this Part will enable wider reporting of family proceedings, within a scheme which is consistent for all levels of court rather than differing according to the court hearing the proceedings as at present.
26. The rules of court governing most family proceedings were amended in April 2009 to allow for the attendance of accredited media representatives, without allowing for attendance by the public more generally. The existing statutory reporting restrictions remained unchanged, however, with the effect that the media are able to report only limited information about the proceedings they attend and unable to report the substance of those proceedings without the express permission of the court.
27. These clauses introduce new arrangements for the publication of information from family proceedings other than those governed by the Judicial Proceedings (Regulation of Reports) Act 1926 (which deals with reporting of divorce and related proceedings), The new arrangements provide for a general restriction on publication by any person of information relating to the proceedings covered, subject to three major exceptions for types of authorised publication: authorised publication of a court order or judgment, “authorised news publication” and authorisation by way of provision made in rules of court. Of the three exceptions, publication of court orders and judgments will be possible in much the same way as at present, and it is anticipated that the rules of court will continue to permit similar sorts of disclosure of information as at present; but the “authorised news publication” exception is new and will allow for wider reporting of family proceedings than at present.
28. The exception for authorised news publication of proceedings is for reporting of information acquired by an accredited media representative who has attended the proceedings in question. The news reporting scheme turns on automatic prohibition on reporting of certain sorts of information which is particularly sensitive, with other information being reportable unless the court specifically imposes restrictions. Thus—
a) publication of any information likely to lead to the identification of children, parties or witnesses (save professional witnesses) in the proceedings (“identification information”) or of other sorts of particularly sensitive information (“sensitive personal information”, “restricted adoption information” and “restricted parental order information”) is prohibited, but with the court having power to relax the prohibition and allow publication;
b) publication of all other information is permitted, but with the court having power to prohibit or restrict publication.
Part 3: Miscellaneous and Final Provisions
29. This Part provides for the proprietors of Academies to become exempt charities and makes an amendment to the fees regime for independent schools under the Education and Skills Act 2008. It also includes standard provisions on extent and commencement.
Schedules
30. Schedule 1 contains provisions related to the registration scheme for home-educated children.
31. Schedule 2 contains amendments to Part 2 of the Bill which will only take effect if and when a commencement order is made in relation to Clause 40 of the Bill.
32. Schedule 3 contains a list of information which is to be regarded as “sensitive personal information” for the purposes of Part 2. Schedule 4 contains minor and consequential amendments relating to the substantive provisions in all Parts of the Bill. Schedule 5 contains a list of provisions repealed by the Bill.
COMMENTARY ON CLAUSES
PART 1: CHILDREN AND SCHOOLS
Pupil and parent involvement
Clause 1: Pupil and parent guarantees
33. Clause 1 requires the Secretary of State to issue a document setting out the “pupil guarantee” and the “parent guarantee”. The documents will set out entitlements for pupils and parents which they can expect with regard to their, or their child’s, school. The clause enables these documents to impose requirements with mandatory force on local authorities, governing bodies, other proprietors and head teachers of schools in England. The Secretary of State may revise the documents from time to time.
34. The documents may also include guidelines setting out aims and objectives and local authorities, governing bodies, other proprietors and head teachers must have regard to the matters contained in them.
35. The guarantee documents are to be framed with a view to realising the five pupil ambitions set out at subsection (4) and the four parent ambitions set out at subsection (5). The provisions of the guarantees may be different for pupils at different types of schools and for pupils of different descriptions (e.g. the guarantees may differ for children of different ages (e.g. primary or secondary) or for children with SEN statements with detailed provision).
36. “Pupils” and “parents” for the purposes of the clause are defined in the EA 1996. Parent would, therefore, include someone with parental responsibility for the child, or who has “care” of the child, and would generally include a local authority for a child in care. Subsection (9) provides the Secretary of State with a power to make an order which amends the schools to which these guarantees apply and the bodies upon whom duties can be placed in the documents. The power conferred by subsection (9) is subject to the affirmative resolution procedure, which means that an order under the subsection may not be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
Clause 2: Procedure for issuing and revising pupil and parent guarantees
37. This clause sets out the process for making and revising pupil and parent guarantee documents. The Secretary of State must prepare a draft of the guarantee, and then consult on that draft. The Secretary of State must consult whoever he or she considers appropriate and consider any representations made. That consultation may predate the commencement of the section or the passing of the Act. A draft must be laid before both Houses of Parliament, and approved by a resolution of both Houses. The Secretary of State must then issue the guarantee document in the form approved by Parliament and may by order specify the date on which the document comes into force. The process for amending the guarantee documents is identical but is confined to the revisions and is not a re-issue of the whole document.
Clause 3: Complaints relating to pupil and parent guarantees
38. Clause 3 deals with the issue of who can make a complaint in relation to a failure to act in accordance with the pupil and parent guarantees, and under what circumstances. The clause amends the complaints process in Part 10, Chapter 2 of the Apprenticeships, Skills, Children and Learning Act 2009 (“ASCLA 2009”) so as to allow pupils and parents to complain about an injustice sustained by a pupil or parent in consequence of a failure by the head teacher of a school to comply with any requirement imposed by the pupil or parent guarantee. The clause also amends the Local Government Act 1974 so that pupils and parents will be able to make complaints about local authorities in connection with the guarantees. A complaint under either Act is made to the Local Commissioner for Administration (the Local Government Ombudsman) and allows the Ombudsman to investigate complaints, report and make recommendations.
39. A parent or pupil will be able to make a complaint under ASCLA 2009 whenever there is injustice to them resulting from a failure by the head teacher or governing body to comply with the requirements of the guarantees.
40. Subsections (3) to (5) of the clause restrict the operation of the Secretary of State’s direction-making powers in sections 496, 497 and 497A of the EA 1996 so as to prevent the Secretary of State giving a direction to a local authority on the basis of a breach of a guarantee, unless a) a complaint has been made to the Ombudsman and disposed of by him or her; or b) the circumstances are such that the Secretary of State considers it appropriate to give a direction without such a complaint being made and disposed of.
Clause 4: Home-school agreements for each pupil
41. At present, all schools must have one home-school agreement, used for all parents and pupils which must be reviewed ‘from time to time’. It takes no account of the individual child. Clause 4 is intended to increase the personalisation of home-school agreements and inserts a new section 109A into the School Standards and Framework Act 1998 (“SSFA 1998”) to make provision for annually-reviewed, personalised home-school agreements for pupils at certain types of school in England. The existing provision about home-school agreements in section 110 of the SSFA 1998 is amended by the Bill so that it will only apply to schools in Wales.
42. Section 109A places a qualified duty on the head teacher of a maintained school, a CTC, a CCTA or an Academy to provide each registered parent of each child who is a registered pupil of the school with a home-school agreement (as defined by subsection (4) of the new section) and a parental declaration. Where they consider it appropriate, head teachers can provide different parents of the same pupil with different home-school agreements in respect of that pupil. A home-school agreement is to be reviewed at least once a year (in consultation with the parent). Any home-school agreement lapses once the pupil leaves the school or is no longer of compulsory school age.
43. There is a qualified duty on a head teacher to take reasonable steps to ensure that the parental declaration is signed by each parent when the home-school agreement is first issued, and following every review; and a pupil may also be invited to sign the declaration.
Clause 5: Home school agreements: parenting contracts and parenting orders
44. Clause 5 ties the discharge by parents of their responsibilities under home-school agreements to parenting contracts and orders under the Anti-social Behaviour Act 2003 (“ASBA 2003”). It makes two amendments to the ASBA 2003. Section 19 of that Act is amended so that in every parenting contract entered into by virtue of that section (in cases of misbehaviour at school or truancy), there is a statement by the parent that they agree to discharge their responsibilities set out in the home-school agreement and a statement by the party offering the contract that it agrees to provide support to the parent for the purpose of discharging those responsibilities.
45. Section 21 of that Act is amended so that in any case where a Magistrates’ Court is considering making a parenting order under section 20 of the Act (parenting orders in cases of exclusion or potential exclusion from school) it must take into account any failure of the parent to discharge the responsibilities set out in the home-school agreement.
Clause 6: Parental satisfaction surveys
46. This clause amends the EA 1996 so as to require local authorities in England to seek and assess parents’ views on the provision of schools in their area. Where there is material dissatisfaction with existing provision, a local authority will be required to consult with parents and develop a plan (a “response plan”) that addresses the dissatisfaction and deals with any other issues raised in the survey that the authority considers necessary. Parents will be given an opportunity to make representations on the content of a response plan and, where those representations are not sufficiently favourable, the local authority will be required to refer the plan to the adjudicator. (The “adjudicator”, in this context, is the adjudicator appointed under section 25 of the SSFA 1998.) If the adjudicator rejects the plan, the authority will have to withdraw it and prepare and publish a further plan.
47. This clause inserts new sections 19J to 19P into Chapter 3 of Part 1 of the EA 1996.
48. Section 19J introduces a requirement for local authorities to carry out an annual survey of the views of parents about the provision of “relevant schools” in their area. The Government intends that “relevant schools” in this context will initially only refer to secondary schools, but this may be extended to primary schools in the future. Regulations under the new section may prescribe which parents are to be surveyed (by reference to children of a specified age or children in a specified age group), the issues on which their views are invited and the form which must be used to survey parents.
49. Section 19K requires local authorities to analyse the parental responses received in the survey and to publish a summary of these responses. Where their analysis shows “material parental dissatisfaction” with the provision of relevant schools in an authority’s area, the local authority must publish a plan setting out proposals for responding to that dissatisfaction and for dealing with any other issues arising from the responses that they consider need to be dealt with (subsection (2)). “Material parental dissatisfaction” is to be determined in accordance with regulations made under this section (subsection (3)). How the authority must analyse and publish the results of a survey, and develop and publish their plan will also be stipulated in regulations (subsection (6)). In preparing a plan, an authority must consult parents in their area.
50. New section 19L requires a local authority to give “eligible parents” the opportunity to make representations to the authority about the response plan (subsections (1) and (6)). If a sufficient number of unfavourable representations about the plan are received from eligible parents, an authority must refer the plan to the adjudicator. The threshold for this duty to be triggered will be determined in accordance with regulations. Regulations may also provide for the steps to be taken by an authority when a plan is referred to the adjudicator. This might include the timeframe within which they must refer the plan and the format in which it should be submitted.
51. Section 19M provides for response plans to be considered by the adjudicator. Where a plan is referred to the adjudicator, the adjudicator will need to make a determination in respect of it: this may be to approve the plan, to approve it subject to modifications, or to reject it. Regulations made under this section may make provision about the procedures to be followed and the criteria to be taken into account by the adjudicator in making a determination, and the adjudicator must have regard to any guidance issued by the Secretary of State.
52. Section 19N sets out what an authority must do when the adjudicator has made a determination about the response plan. If the determination approves the plan subject to modifications, the authority must make these modifications to the plan. If the determination rejects the plan, the authority must withdraw the plan and prepare and publish a further response plan. In preparing this further response plan the authority must have regard to the adjudicator’s determination. Subsection (4) provides that regulations may make provision about steps to be taken by an authority when modifying or withdrawing a plan, or preparing a further response plan.
53. Section 19O provides for local authorities to implement their response plans, unless doing so would be unreasonably difficult, or has become inappropriate as a result of a change in circumstances.
54. Section 19P requires a local authority, in exercising their functions in relation to response plans, to have regard to any guidance issued by the Secretary of State.
Children with special educational needs etc
Clause 7: School inspections: pupils with disabilities or special educational needs
55. This clause inserts into section 5 of the Education Act 2005 (duty to inspect certain schools in England at prescribed intervals) a requirement for the Chief Inspector to consider, in reporting on how well a mainstream school (as defined) meets the needs of its pupils, the needs of children with disabilities or special educational needs.
Clause 8: Right of appeal against determination by local authority not to amend statement
56. This clause provides a new right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) for parents in circumstances where, following a review of a statement of special educational needs (SEN), the local authority decides not to make any changes to the statement.
57. Part 4 of the EA 1996 provides for local authorities to make provision for children with SEN, including the drawing up of SEN statements where they are considered to be appropriate. The statement describes the special educational provision that an individual child will receive. Statements must be reviewed annually but can also be reviewed at other times. Parents have the right of appeal to the Tribunal in certain circumstances.
58. Clause 8 inserts a new section after section 328 of the EA 1996 to introduce a right for parents to appeal in situations where, following a review, the local authority have not made any changes to a statement and the parents want changes which were suggested in the report on the review submitted by the head teacher to be made, or want other changes to be made. The local authority must inform the parents in writing if it decides not to amend the statement and must also inform them of their right to appeal to the Tribunal.
59. The appeal may be in relation to:
a) the description of the local authority’s assessment of the child’s special educational needs in the unamended statement;
b) the special education provision in the unamended statement and the name of a school specified in it; or
c) the fact that no school is named in the unamended statement.
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