Education Bill

MEMORANDUM SUBMITTED BY THE DEPARTMENT FOR EDUCATION TO THE PUBLIC BILL COMMITTEE ON CLAUSE 8 AND 9 (E 118)

Reference: EBCC/2011/Note 4

To aid the Committee’s consideration of the Education Bill, this note provides further information on the delegated powers in clauses 8 and 9.

Clause 8 of the Bill, transfers functions relating to the regulatory system for teachers from the General Teaching Council for England (GTCE) to the Secretary of State for Education. Clause 9 transfers functions relating to the successful completion of the Induction phase from the GTCE to the Secretary of State.

Introduction

1. The single most important factor in ensuring a good education for every child is that they have a good teacher. Teachers are our greatest asset and we want to help them to do their jobs even better by encouraging schools to provide them with the support and professional development they need to fulfil their potential and to help their pupils to do the same.

2. It is important that where there are concerns about a teacher’s performance that action can be taken quickly to address that. In the White Paper we set out plans to improve performance management and capability procedures and we will be consulting on that shortly.

3. In introducing these arrangements for the regulation of the teaching profession we are seeking to ensure there is an effective regime in place to tackle serious professional misconduct and that teachers whose behaviour is unacceptable are no longer employed to teach.

4. This note provides a statement of policy about the government’s intentions in relation to the new arrangements for regulating the teaching profession and will be used as a basis for drafting the regulations. Parliamentarians may wish to consider this alongside the content of the Education Bill regarding the new arrangements for regulation of the teaching profession. We will conduct a full 12 week public consultation on the draft regulations prior to refining and publishing a final version. The regulations will come into effect to coincide with commencement of the Secretary of State’s powers for regulating the teaching profession, planned for April 2012.

Regulations about the definition of ‘teaching work’ and the investigation of disciplinary cases by the Secretary of State

5. Regulations about the definition of ‘teaching work’ must be made under new section 141A of the Education Act 2002 and regulations about the ‘investigation of disciplinary cases by the Secretary of State’ must be made under new section 141B of the Education Act 2002, as inserted by Clause 8 of the Education Bill (new Schedule 11A makes a range of provisions about these regulations).

Definition of teaching work:

6. The regulations will make clear which staff the regulatory system applies to in the education settings specified on the face of the Bill (which include schools, sixth forms, youth justice accommodation, and children’s homes). We intend to use the regulations to ensure that the new regulatory system covers those who undertake "specified work" carried out other than subject to the direction and supervision of a qualified teacher or nominated teacher in accordance with arrangements made by the head teacher of the school. ‘Specified work’ is already defined in the current S133 Specified Work Regulations and means work that may be carried out in schools by qualified teachers and certain other persons, as follows:

· "planning and preparing lessons and courses for pupils;

· delivering lessons to pupils ("delivering" includes delivery via distance learning or computer aided techniques);

· assessing the development, progress and attainment of pupils; and

· reporting on the development, progress and attainment of pupils."

7. This will have the effect of including all teachers and instructors in the new regulatory system, but excluding other staff, such as Higher Level Teaching Assistants, who may undertake specified work but do so under the direction and supervision of a teacher. Therefore we propose that those covered by the new regulatory system will be those who carry out teaching work unsupervised.

The investigation of disciplinary cases by the Secretary of State:

8. The regulations will specify in detail how the new regulatory system for teachers will operate, from the point at which a serious misconduct referral is made to the Secretary of State, the investigation and hearings process, as well as the decision making process and appeals process.

9. Referrals can be made from an employer (where a teacher has been dismissed for serious misconduct, or would have been had they not resigned). Referrals can also be made by the police where a teacher has been convicted or cautioned of a relevant offence, and by the Independent Safeguarding Authority (or successor body). Members of the public will also be able to make referrals. This mirrors the existing referral process under the GTCE arrangements.

10. We intend to use the regulations to delegate the Secretary of State’s new regulatory functions to the new teaching agency which was announced in the White Paper, ‘The Importance of Teaching’. This executive agency will exercise these functions on behalf of the Secretary of State and will be accountable to him.

11. The regulations will include the procedure to be followed in investigating cases of serious misconduct referred to the Secretary of State and the procedures for making a decision about whether or not to bar a person from the profession. The following points provide an overview of the process:

i. When an employer is making a referral, they will be required to submit a range of information relating to the case, including for example the letter of dismissal/resignation, a statement of the reasons for dismissal and the employer’s records relating to the dismissal.

ii. Officials will screen and sift all cases referred to the Secretary of State to determine whether the case should be formally investigated. This sift will include making basic checks to ensure that the case comes under the Secretary of State‘s jurisdiction, including whether the teacher was teaching in England, that the referral is for serious misconduct, and that the teacher’s details are included.

iii. During the sifting stage, assuming the basic checks were concluded and confirmed that they came under the executive agency’s jurisdiction – the case would be considered for formal investigation. Where the case has not met the basic checks the referrer will be informed in writing that no further action will be taken.

iv. When a case is considered for formal investigation, officials will sift out any cases where the evidence clearly indicates that the case is not serious enough to warrant the teacher being barred from the profession. When the Investigation Team (made up of trained officials) decide to conduct a formal investigation they will write to the teacher informing them of this fact and giving the teacher 28 days to submit evidence and make representations to support their case, including why he/she should not be referred to a hearing. Officials would also write to the person who had made the referral to inform them that the case is being formally investigated and provide 28 days for them to provide any further evidence to support the referral;

v. At the beginning of the formal investigation stage, the Investigation Team will decide whether or not an interim order may be necessary to prevent the person from teaching until their case can be concluded at a hearing. Where an interim order may be necessary, the Investigation Team will refer this to a private hearing panel for a decision. The hearing panel would include input from the teaching profession, independent lay person representation and be supported by officials and legal advice. The teacher would be given 7 days notice to provide any additional evidence that they would want to be considered in relation to the decision to provide an interim order.

vi. We expect this power to issue an interim order to be used only in the most serious cases where the evidence provided suggests that children’s welfare and education or parents or other school staff may be seriously at risk if the person were allowed to continue to teach before a hearing can be scheduled and their case concluded. Where an interim order is given, the teacher will be informed in writing that the order is to apply immediately. Teachers will be able to appeal at any point against the interim order, and if the Secretary of State decides to uphold the order there is to be no further right of appeal until the case has been concluded. Where the teacher is currently employed, the teacher’s employer would also be informed in writing that an interim order has been put in place, and would be required to take action to ensure the person was prevented from teaching (until the case has been concluded or until the person successfully appealed against the interim order).

vii. Whether or not an interim order is given, the Investigation Team will consider and investigate the case and will have the ability to consult specialists (for example medical specialists, lawyers, teachers and headteachers) should they require this input in order to make a decision. The Investigation Team will consider, based on the evidence submitted by the referrer and the teacher, whether the case is serious enough to potentially warrant a ban from teaching and where this is the case they will make a referral to a hearing. If the Investigation Team decides that the case should not proceed to a hearing, the teacher and the person who made the referral will be informed in writing that the case has been discontinued. If the case is referred by the panel to a hearing, the teacher and person who made the referral will be informed of this in writing and both parties will have chance to submit any further evidence and statements.

viii. Cases referred for a hearing will be considered by a hearings panel which will have input from the teaching profession and independent lay representation and will be supported by trained officials and legal experts.

ix. Teachers will be able to represent themselves at hearings or arrange that someone else represents them. Hearings will usually be open to the public, unless there are legitimate circumstances as to why this should not be the case – for example where there may be reputational risk to a third party or where it is necessary to protect the interests of a child.

x. Both the Investigating Team and hearings panel will, in making their decisions, refer to the teacher standards and the prohibition guidance. Prior to the development of the revised teacher standards the panels will refer to the Code of Conduct and Practice developed by the GTCE, and the TDA’s Professional Standards for Teachers.

xi. The Prohibition Guidance will be developed to provide clear guidance on the types of cases where a person may be barred from the profession. The draft guidance will be subject to public consultation and we will seek the input of the profession in developing it. The guidance will make clear that the types of cases where it may be necessary to bar a person from the profession will be where this is necessary to protect pupils and to maintain public confidence in the teaching profession. It will make clear that prohibition orders must not be used as a mechanism to satisfy public demand for blame and punishment. Whether a prohibition order is appropriate will depend on the particular facts of each case, however prohibition orders are likely to be relevant when the behaviour of the teacher is fundamentally incompatible with being a teacher and may involve:

o Serious departure from the teacher standards and code of conduct

o Seriously affecting the education and/or well being of pupils, and particularly where there is a continuing risk.

o Abuse of position/trust (particularly involving vulnerable pupils) or violation of the pupils rights

o Dishonesty (especially where persistent and covered up)

o Persistent lack of insight into the seriousness of actions or consequences.

o Evidence of harmful deep-seated personality or attitudinal problems.

xii. The hearings panel will decide whether or not to bar a person from the profession. Where a person is not barred, the case will be discontinued and the teacher and the referrer will be informed in writing. Where a teacher is barred from the profession, the prohibition order will be applicable with immediate effect, and this will be confirmed to the teacher and the referrer in writing. The person’s employer will be informed and required to take appropriate action (either they would need to be dismissed or they could no longer be employed as a teacher).

xiii. A prohibition order will prevent a person from teaching – as defined in these regulations. A person with a prohibition order may continue to be employed in roles not covered by these regulations, including for example as a Higher Level Teaching Assistant where they would not be in sole charge of a classroom and would be supervised by a teacher.

xiv. A person who has received a prohibition order will have a right to appeal to the High Court against the order up to 28 days after receiving the order. There is to be no higher route of appeal.

xv. There will also be a procedure for people with a prohibition order to apply to have their order set aside (this does not include interim prohibition orders). At the time of the hearing, the hearing panel will decide for each prohibition case the minimum time period after which a person can appeal to have their order set aside (depending on the seriousness of the case and the evidence presented). However this is to be no less than a period of 2 years.

xvi. There will be a standard procedure for applying for a prohibition order to be set aside, which include the submission of any new evidence to the Secretary of State, a review of the case by an investigation panel and, if it seems possible that the order should be set aside, another hearing panel would be convened to make a decision. This does not apply to interim prohibition orders.

xvii. Where a person has been barred from the profession, this will be added to the list of teachers barred from the profession and basic information about the person and the prohibition order will be available publicly. Teachers barred from the profession will no longer be able to be employed as a teacher or instructor but it does not prevent a person being employed in another supervised capacity in a school (as a Higher Level Teaching Assistant, for example), though this will clearly be at the discretion of individual schools.

xviii. The executive agency will uphold prohibition orders for misconduct made by teaching regulators in Wales, Scotland, and Northern Ireland unless there is compelling evidence to suggest that it should not.

Policy Statement for the regulations about the teacher induction

12. Clause 9 of the Education Bill transfers the arrangements for teacher induction periods from the GTCE to the Secretary of State. New Section 135A of the Education Act 2002 provides that regulations may be made about the requirement for teachers to serve an induction period. The regulations made under this section will simply be the current induction regulations made under Section 19 of the Higher Education Act 1998 which will be revised only to make consequential amendments to reflect the transfer from the GTCE to the Secretary of State.

April 2011