Memorandum submitted by NASUWT (CS 12)

 

This is a brief summary of the position of the NASUWT on the provisions of the Children, Schools and Families Bill Parts 1 and 3.

 

The NASUWT is the largest teachers' union in the UK representing over 273,000 teacher and school leader members.

 

PART 1: CHILDREN AND SCHOOLS

 

Pupil and parent guarantees, home-school agreements and parental satisfaction surveys (Clauses 1-7)

 

Pupil and Parent Guarantees

 

1. The NASUWT supports the principle of a pupil and parent guarantee and regrets that the opportunity has been missed to introduce a workforce guarantee, which would ensure the rights and entitlements of the workforce to support them in providing the highest standards if education for every child.

 

2. It is right that a state education system sets out clearly pupil and parent entitlements and what they can reasonably expect. Any school which receives state funding should be subject to these guarantees and the NASUWT welcomes the fact that they will apply to academies. Many of the provisions in the guarantees are already being delivered by schools.

 

3. It will be essential to ensure that in setting out the guarantees, the wording places the obligations to deliver the provisions on governing bodies and local authorities and does not leave individual teachers, headteachers or other staff vulnerable to litigation. This would be achieved by ensuring that the responsibility rested with the school rather focusing on the day to day activities of staff.

 

4. Equally, the wording will also need to be constructed carefully to protect schools and local authorities from vexatious or frivolous claims.

 

5. It should be clear, either on the face of the Bill or in regulation, who will be consulted about the specific provisions of the guarantees or any amendments to the same. The workforce trade unions should be specified as consultees.

 

6. The guarantees would be meaningless without a provision enabling parents and pupils to complain if they believe that the guarantees are not being delivered. However, to ensure consistency in handling and decision making regarding complaints there should be only one route for complaints with clear criteria governing the basis on which complaints can be lodged.

 

7. All complaints should be handled by the Local Government Ombudsman (LGO)

 

8. The provisions for the Secretary of State to circumvent the complaints process and give direction to a local authority in relation to an alleged breach of the guarantees where s/he considers it appropriate to do so, should state clearly the circumstances in which these powers would be used.

 

Home School Agreements: parenting contracts and parenting orders

 

9. The NASUWT has no objection in principle to home school agreements. The Union is, however, concerned about the potential for these agreements to become a hugely bureaucratic and unmanageable process and is particularly concerned by the proposal that they should be reviewed annually and signed following the review. The administration of the home school agreements must not place excessive and unreasonable burdens on schools. Therefore the provision to review every agreement annually should be on the basis of change in circumstances.

 

10. The Bill places a duty on headteachers to take reasonable steps to ensure that all relevant parents or carers sign such agreements. The NASUWT believes that this duty should be placed on governing bodies rather than headteachers and that 'reasonable' will need to be defined clearly to ensure consistency of practice across schools. This is particularly important in the context of Magistrate's Courts being required to take account of the failure of a parent to discharge the responsibilities set out in the home school agreement in circumstances where it is considering issuing a parenting order.

 

Parental satisfaction surveys

 

11. The NASUWT remains to be convinced of the need for parental satisfaction surveys as proposed in the Bill but is sympathetic to ensuring that local authorities take a lead role in ensuring that the needs of pupils and parents in the area are met.

 

12. However, if such a provision is to be introduced there must be:

consistency of approach across local authorities, with clear minimum standards for the conduct of the surveys;

in the primary legislation, the threshold for response which would trigger the production of a plan by the local authority;

recognition that this provision may have a series of unintended consequences , including the process being vulnerable to manipulation by political and lobby groups and local and national media;

safeguards to ensure that Freedom of Information Act requests do not result in the release of individual questionnaires which may contain comments identifying individual school staff, headteachers and schools.

 

13. The NASUWT does not see the need for the school adjudicator to be involved in this process but if this provision proceeds the test for referral must be more stringent than the threshold for prompting the development of a plan in the first place.

School inspections: pupils with disabilities or special educational needs (Clause 7)

 

14. The NASUWT welcomes the provision to ensure that the needs of pupils with special educational needs and disabilities are being met in mainstream schools.

 

15. The Bill requires the Chief Inspector to report on how well a mainstream school is meeting the needs of children with disabilities or special educational needs. The progress and achievement made by these children and young people is a critical concern. However, allocating this responsibility to the Chief Inspector without establishing clearly the way in which it should be discharged in practice would be wholly inadequate in ensuring that the aims for these learners are secured.

 

16. The NASUWT has longstanding concerns about the fitness for purpose of the school accountability system and the specific role of Ofsted within this system. The Chief Inspector has a significant degree of discretion over the nature and content of the school inspection framework and the way in which it is implemented in practice. Further, apart from a requirement to report periodically to Parliament through the Children, Schools and Families Select Committee, there is little meaningful scrutiny or public accountability of Ofsted. There is, therefore, no guarantee that the objectives for the particularly vulnerable children, identified within the Bill, would be secured. Due to the limited nature of Ofsted's accountability, there would be no effective means of directing the Chief Inspector to resolve issues regarding the delivery of the provisions of the Bill if these were found by the Secretary of State or Parliament to be inadequate.

 

17. Additional regulations and statutory guidance will, therefore, be required setting out in clear terms the procedures and principles Ofsted would need to adopt to fulfil its obligations.

 

Right of appeal against determination by a local authority not to amend a statement - (Clause 8)

 

18. Whilst the principle may be right, an appeal to the Special Educational Needs and Disability Tribunal, to enforce changes to a statement determined by a local authority may have a significant potential adverse impact. The overturning by a Tribunal of a decision of a local authority in refusing to amend a statement could have serious consequences for the provision of education both for individual pupils referred to in the statements and for other pupils with whom they are educated. The Bill does not make clear the extent of the considerations which a Tribunal must take into account in reaching its findings in relation to appeals placed before it in this regard.

 

Exceptional provision for ill or excluded children (Clause 9)

 

19. In relation to the provisions set out in Clause 9, the NASUWT believes that these provisions clarify the duties and responsibilities of the local authority in relation to the provision of full time education for excluded pupils and supports these provisions.

 

The Curriculum (Clauses 10-14)

 

20. The NASUWT broadly supports the changes to the National Curriculum at Key Stages 1 and 2 to introduce areas of learning and recognises that this section of the Bill will give legislative effect to the reforms.

 

21. The provisions of the Bill give the Secretary of State the power to specify by order particular modern foreign languages that would satisfy the provisions of the National Curriculum and to determine what constitutes a modern foreign language. This power significantly goes beyond what has been provided for to date in terms of the ability of the Secretary of State to issue orders relating to National Curriculum programmes of study and attainment targets. In using these powers, there should be a requirement on the Secretary of State to consult relevant bodies, including recognised trade unions within the school sector, in order to ensure that decisions in relation to modern foreign languages are taken on the basis of the broadest possible advice and evidence.

 

22. No commensurate provisions appear to be in place in respect of the modern foreign languages curriculum at Key Stages 3 and 4. There is, therefore, a significant legislative discrepancy.

 

Personal, Social, Health and Economic Education

 

23. In placing the teaching of Personal Social Health and Economic (PSHE) Education on a statutory basis within the context of the National Curriculum, the NASUWT notes that the Bill allows the Secretary of State to specify, by order, attainment targets or assessment arrangements for PSHE through existing provisions in the Education Act 2002.

 

24. The proposals put forward in relation to the incorporation of PSHE into the National Curriculum made it clear that the subject orders would not include attainment targets or statutory assessments. Although the Bill does not introduce such provisions, it does create a legal framework within which attainment targets and statutory assessment might be introduced subsequently. The Bill should be amended so that the provisions of the Education Act 2002 regarding these powers of the Secretary of State do not apply to PSHE.

 

Sex and relationships education: the manner of provision

 

25. The NASUWT remains opposed to the right of parents of pupils up to the age of 15 to withdraw their children from Sex and Relationship Education (SRE). Whilst the Union recognises the sensitivity of this issue and the progress the Government has made to amending the age limit to 15, if SRE is of sufficient importance to merit inclusion in the National Curriculum, then it should be regarded as an area of learning which should be accorded the same status as all other areas of the National Curriculum from which parents have no right of withdrawal. The maintenance of the right of withdrawal in the context of the inclusion of SRE within the National Curriculum undermines the integrity of the National Curriculum as a whole and the importance of SRE within it.

Powers of governing bodies (Clauses 15-18)

 

26. The NASUWT notes the intention to remove the current restriction on use of delegated funding for the purpose of providing community facilities and services and to require governing bodies to give consideration at least once a year to whether or not to provide facilities for the community.

 

27. Significant caution must be exercised in taking this proposal forward. The money delegated to governing bodies is intended to ensure that they are able to undertake their core responsibilities for the provision of high quality teaching and learning and other activities that meet key statutory duties, including those relating to promoting the well being of children and young people, community cohesion, equalities and pupil safeguarding.

 

28. Whilst recognising that the provision of community facilities and services can make important contributions in these areas, the simple removal of the restriction on the ability of governing bodies to spend delegated budgets in the way proposed in Clause 15 risks them allocating funding to such projects without sufficient or effective planning, jeopardising their ability to maintain and develop the provision in other key areas. Therefore any proposals should be in the context of the local authority's strategic plan and the children and young people's plan.

 

29. The NASUWT is concerned about progressing this provision in the absence of more detailed consideration of the implications of such a move, of the specific restrictions on specified activities which it is intended to be set out in regulation and of the implications for the role and responsibilities of local authorities.

 

Powers of governing bodies (Clauses 16 - 18)

 

30. The NASUWT is opposed to the provisions to allow governing bodies to form companies to establish academies and for the governing bodies of schools to become members of foundations of other schools.

 

31. There is no evidence that these provisions which introduce structural flexibility improve standards of education.

 

32. In relation to Clause 17, which allows governing bodies to provide advice and assistance to the proprietors of academies, in the same way as is currently provided for to allow governing bodies to provide advice and assistance to other governing bodies, the Union supports the principle of schools working collaboratively with others and sharing their skills and expertise. Such co-operation should be promoted regardless of a school's status.

 

33. The NASUWT remains unclear about how the provisions to allow all governing bodies of maintained schools in England to become members of the foundations of other maintained schools would make an effective contribution to collaboration between schools and, as with provisions in relation to academies set out in Clause 16, believe it could distract governing bodies from their core responsibilities.

 

School improvement (Clauses 19-22)

 

34. The NASUWT remains unconvinced that it is necessary to widen the scope of the role of School Improvement Partners (SIPs) so that they provide not only advice not only for the purpose of improving standards at the school but also other prescribed services to improve the wellbeing of pupils in the school. The NASUWT already has concerns about the effectiveness of the SIP programme and whether it does provide appropriate support and challenge to headteachers and governing bodies on school standards. The legislative provisions broaden the role of the SIP without clear detail on the way in which this would be taken forward by local authorities and without any regard to the current challenge and time commitment of the role.

 

Provision of information about schools- (Clause 20)

 

35. The NASUWT recognises that the proposals seek to facilitate the introduction of the School Report Card and the ending of the requirement on governing bodies to prepare and publish a school profile. The NASUWT also believes that the advent of the Report Card should bring about the abolition of the performance league tables.

 

36. Subsection (1) makes provision for the Secretary of State to set out arrangements for the way in which this information should be obtained so that national datasets can be compiled. The NASUWT has no objection to this in principle but believes that steps must be taken to ensure that arrangements are in place which prevent variation of practise in the collection of information and the development of overly bureaucratic and workload intensive processes. The collection must be governed by statutory guidance.

Schools eligible for intervention (Clause 21)

 

37. Provisions in Clause 21 of the Bill invest a local authority with the power require a school eligible for intervention to enter into another federation with a school that has a designated governing body should be amended to ensure that the extent to which local authorities will make use of this power and the circumstances within which they might contemplate using it are clear and consistent.

 

38. The NASUWT does not believe that the provisions in Clause 21 giving powers to local authorities to require a maintained school to become a foundation school, with a foundation where the majority of governors are appointed by the foundation, are either a necessary or an appropriate approach to securing school improvement. There is no evidence that the creation of such foundations supports school improvement. The time, effort and resources local authorities would have to dedicate to making use of this power may be better deployed in supporting school improvement strategies within the context of schools' existing governance structures.

 

Schools causing concern: powers of the Secretary of State

 

39. The NASUWT has no objection to the powers for the Secretary of State to direct local authorities to issue warning notices in respect of performance standards or safety. The Union sees no reason why this power cannot be exercised where a school has failed to comply with a warning notice for failing to comply with the School Teachers' Pay and Conditions of Service Document and related regulations. This provision should be capable of universal application and believes that the provisions should be amended to secure this.

 

40. The Union continues to maintain that in addition to introducing this power, there needs to be detailed examination of the barriers which exist at local level which deter local authorities from using these notices to the extent it might be reasonably expected that they should.

School teachers' qualifications (Clauses 23-25)

 

41. The NASUWT opposes the introduction of a licence to practise. Without appropriate safeguards this has the potential to usurp or undermine existing statutory arrangements for the performance management of teachers and headteachers and to establish additional procedures for determining the capability and competence of teachers and headteachers. The Government must give assurances that this will not be the case. Teachers and headteachers are subject already to rigorous procedures to ensure competency to teach, including Ofsted inspection, professional standards, performance management, capability and disciplinary procedures and GTC regulation.

 

42. If a licence to practise is introduced, the NASUWT believes that it must:

 

be applied to all teachers and headteachers, including in the independent sector. Licences to practise medicine and law apply wherever these disciplines are practised;

 

place no additional requirements on teachers  and headteachers than already exist to demonstrate their professional expertise;

 

be underpinned by a statutory contractual entitlement to high quality professional development during working time  for all teachers and headteachers.

 

43. The award and renewal of the licence should not be subject to headteacher or governing body recommendation but be linked to the performance management process.

 

44. The NASUWT understands that the provisions in the Bill are designed to be enabling clauses to allow for more detailed development of the licence. The clauses in the Bill should however encapsulate the principles outlined above.

 

45. The NASUWT believes that the references to specified work in the context of a licence being withdrawn need to be examined in the context of the regulations which enable suitably qualified support staff to carry out specified work under the direction of a qualified teacher, to ensure consistency of application and that a qualified teacher is not unreasonably prevented from carrying out specified work.

 

Home education (Clauses 26-27 and Schedule 1)

 

46. Whilst there is a strong case for the Government to consider whether the right of parents to educate their children at home remains appropriate in the context of a modern education system, the NASUWT generally welcomes as a positive step the provisions of Clauses 26, 27 and Schedule 1 which take forward the recommendations of the Badman Review in establishing more effective monitoring and registration arrangements for children educated in this way.

 

47. Section 19E of Schedule 1 defines what is meant by 'suitable education' and represents the means by which local authorities will make judgements about the quality of education provided for children receiving elective home education and whether this should continue to be permitted. However, it appears to be the case that local authorities would be able to establish as they see fit their own detailed interpretations of the provisions of subsection 19E. To avoid variation in the practice in different local authorities, the NASUWT believes that it is reasonable to expect the Secretary of State to produce more detailed statutory guidance to local authorities which sets out a clearer framework within which local authorities should discharge these duties.

 

Local safeguarding children's boards - (Clauses 28-30)

 

48. The NASUWT has reservations about the terms of Clauses 28 and 29 in relation to the ability of Local Safeguarding Children's Boards (LSCBs) to require information from a person or body if requested to do so.

 

49. The Bill gives LSCBs relatively unfettered powers to demand disclosure of information as long as, in their view, the information is required to enable or assist LSCBs to fulfil their functions and that person or body subject to a demand for information, has functions or engages in activities that mean it is likely to have information relevant to the functions of LSCBs. These considerable powers to demand disclosure of information are unmediated by any external organisation and there is no information about the content of more detailed guidance on the parameters within which LSCBs would be required to act in this respect.

 

50. The exercise of the powers of the Secretary of State as described in subsection (7) of Clause 28 to issue guidance to which LSCBs would need to address the reasonableness of the demands for information, how refusals to provide information will be dealt with, confidentiality of information and data protection issues relating to information which is submitted.

 

 

PART 3: MISCELLANOUS AND FINAL PROVSIONS

 

Charitable status of academy proprietors- (Clause 42)

 

51. It is not clear why the Government is seeking to introduce a provision that would exempt academy proprietors from a requirement to register with the Charity Commission.

 

52. The NASUWT can see no justification for this Clause. The NASUWT does not believe that there are adequate rules in place to govern the conduct of academy schools. To give even greater freedoms is unwarranted.

 

January 2010