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Education and Inspections Bill
Further consideration of amendments on Report resumed.
Clause 88 [Enforcement of disciplinary penalties: general]:
Baroness Buscombe moved Amendment No. 119:
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The noble Baroness said: My Lords, in moving Amendment No. 119, I shall also speak to Amendments Nos. 120 to 122, 128 and 131. The amendments remove an ambiguity in the Bill, which uses the phrase “normal school hours” to refer to the time when a child is at school. The phrase is ambiguous. Section 32 of the Education Act 2002 allows school governing bodies to set the times of school sessions rather than school hours. The Education (School Day and School Year) (England) Regulations 1999 require that,
- “every day on which a school meets shall be divided into two sessions which shall be separated by a break in the middle of the day”.
Furthermore, many schools permit pupils to leave the premises in the lunch break. The key question, therefore, is whether the,
is part of normal school hours. If it is not, there will be several adverse consequences, most notably on the ability of a school to place a child in detention over lunchtime and on the ability to ensure that parents supervise their children in the first five days of an exclusion. The amendments would remove this ambiguity.
Amendments Nos. 119 to 121 would replace the phrase “normal school hours” with “school sessions” in Clauses 88 and 89. Amendment No. 122 would ensure that lunchtime detention does not require24 hours’ notice to the parent or for the pupil to be under 18.
Amendment No. 128 would ensure that, where a parent is supervising a pupil under Clause 100, the pupil cannot roam the streets in the lunch break.
Finally, Amendment No. 131 to Clause 104 would ensure that the police can take into custody excluded children whom they find in a public place in the lunch break.
I hope the Minister can accept the amendments, which seek to provide further clarity. I beg to move.
Baroness Sharp of Guildford: My Lords, Amendments Nos. 126, 127 and 129, in my name and that of my noble friend Lady Walmsley, relate to exclusions and parental responsibility for exclusions.
We had a very lengthy discussion in Committee about exclusions. The key issue was how far parents of excluded children can keep them under house arrest, which is what the government proposals in effect suggest. There was general agreement on all sides of the House that, for many families—one must bear in mind that the pupils who are excluded often come from disadvantaged, often one-parent, families, where the sole breadwinner has a relatively low-skilled job, perhaps paid at the minimum wage, and is likely to be dismissed if they fail to turn up for work—requiring a parent to take time off from work to supervise a child poses considerable difficulties for them. This was summed up rather neatly by the noble Lord, Lord Lucas, at col. 1708 of the Official Report, when he said:
“It is wrong to think that incarceration is the only form of punishment. The punishment is actually on the parents in this case. The people who will suffer are the parents, and the child will suffer because the parents are suffering. That is the mechanism being used. To inconvenience the parents sufficiently for them to
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In replying to these concerns the Minister rightly pointed out that the recommendation that parents should take responsibility for their children came in the first instance from the Steer report, which many of us felt was very good and well balanced. It stressed the importance of ensuring that exclusions are seen not as a reward with time off from school but as a punishment. I confess that that rang very true, as I am a governor of a small primary school in a relatively disadvantaged area and one of the problems we have faced is children on short-term exclusions from school riding their bicycles round the school property. The pupils involved see their bad behaviour rewarded with extra time off from school, and that is not what we want.
The Minister also pointed out that the provisions apply only to the first five days of exclusion and that the key issue was short-term, temporary exclusions. Of the 344,500 exclusions in 2003-04, 85 per cent were for five days or fewer, 50 per cent were for only one or two days and 26 per cent were for just one day. The very large burden of what to do with children during short-term exclusions is a real problem that has to be faced.
Other problems continue to arise. My noble friend Lady Williams, who is unfortunately unable to be with us today to argue this amendment in my place, wrote a letter to the Minister in which she said:
“First, the defence of ‘reasonable justification’ does not in itself address the situation that may arise when others are unreasonable. Some of the parents of excluded children will be single parents, trying to bring up children while holding down a full or nearly full-time job. If their employer is unsympathetic, and will not give them immediate leave to pick up the child concerned, the parent will be faced with a difficult dilemma. Does she or he conform to the school’s request, or to the employer’s order? Many parents particularly in low-paid occupations may be at risk of [losing their job] if they absent themselves from work.
Second, some parents will have jobs that demand their presence, and cannot easily be replaced if they absent themselves. Nurses and medical aides in NHS hospitals fall into this category. So do teachers and teaching aides. So do carers in homes for the elderly or the dying. None of these people can easily abandon responsibilities just as weighty as that of attending to their child.
Third, many parents have elderly parents they cannot call upon, or spouses/partners who are unreliable and who may be largely absent or addicted to alcohol or drugs. For such a parent, the conflict between the needs of other children or elderly relatives and the demands of the job they hold may be virtually irreconcilable”.
My noble friend makes very real points that led us to put forward Amendments Nos. 126 and 127, the thinking behind which I would like to explain a little more. I confess that Amendment No. 126 is not quite what we had in mind and I have, so to speak, an amendment to the amendment which I need to explain. The amendment reads:
“The local education authority for the area of the school which has excluded the pupil must offer a place at a pupil referral unit for the period of the exclusion referred to in subsection (2)”.
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We were picking up on the idea that the noble Lord, Lord Dearing, discussed in Committee. He said that the right thing would be for three or four local schools to club together to form a pupil referral unit which could be used jointly. Not every parent will have problems when confronted by the need to look after an excluded child but some will face real difficulties—and where there are real difficulties they should have the option of asking for a place at a pupil referral unit. The amendment that we would like to see would state:
“The local education authority for the area of the school which has excluded the pupil must offer the parent the option of a place at a pupil referral unit”.
That would meet our requirements.
To some extent Amendment No. 127 follows on from that. It refers to the child accompanying the parent to a pupil referral unit and provides clarification, as do the amendments of the noble Baroness, Lady Buscombe. In looking at the concept of whether the parent is guilty of an offence, the alleviating circumstances must be whether the pupil is,
- “accompanying a parent to the parent’s place of employment or a hospital or other healthcare facility”,
or—and this picks up on the point that I was making—
We tabled Amendment No. 129 at the request of the Advisory Centre for Education. I believe that its representatives have been to see the Minister and discussed with him their worries about the whole question of what is “reasonable justification” and its interpretation. The Minister’s letter to my noble friend Lady Williams refers at length to the agreements that he came to with the Advisory Centre for Education. Perhaps I may read out the letter because it will be useful to have it on the record. It states:
“My officials have recently met with representatives of Parents’ Groups such as Parentline Plus and the Advisory Centre for Education, to discuss possible changes to my Department’s draft guidance to LAs on penalty notices and parental responsibility for the whereabouts of excluded pupils. We were able to agree several changes with the groups. The main changes are to: amend the model letter for schools to issue to the parent at the time of exclusion, to make it clear to the parent what their duty is for the first five days and outlining the principle of the defence of ‘reasonable justification’”.
One of the requirements of the Advisory Centre for Education is that there should be an understanding and information for the parent about what is meant by that wording.
The letter goes on to say that the main changes will also,
- “reflect the wording on the exclusion of pupils with Special Educational Needs included in the recently issued Exclusions guidance in the new guidance we will issue on penalty notices. This wording makes it clear that schools must have regard to the SEN Code of Practice on identifying, assessing and making provision for pupils with SEN, including those with behavioural, social and emotional needs. We will also cross refer the reader to the full exclusions guidance, include a reference in the Penalty Notice guidance to encourage local authorities to collect data to help them monitor the use of penalty notices for whereabouts; and revise the wording in the draft guidance to emphasise that a penalty notice should not normally be issued for a first offence”.
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I feel that that meets the requirements of the advisory centre for the provision of better information for parents on what “reasonable justification” means. I am grateful to the Minister for writing to clarify those issues. That covers the three amendments that I wish to speak to.
8.45 pm
Lord Adonis: My Lords, in Committee, the noble Baroness, Lady Buscombe, drew the House’s attention to an important point relating to the definition of school hours in Clause 100 and its implications for our policy on the whereabouts of excluded pupils. Our intention is for pupils not to be present in a public place during school hours on the first five days of exclusion without reasonable justification. In “school hours”, we include the lunch hour and other breaks that a school may permit during the day. Amendments Nos. 119 to 122, 128 and 131 in the name of the noble Baroness provide a more sufficient and robust definition of “school hours” than is in the Bill. They improve the Bill and we are very glad to accept them.
Amendments Nos. 126, 127 and 129, spoken to by the noble Baroness, Lady Sharp, are concerned with the provisions the Bill makes for excluded pupils. We have given a great deal of further attention to that issue and the noble Baroness was good enough to quote some of the correspondence. However, I have a reply outstanding to the latest letter from the noble Baroness, Lady Williams; I will reply, but I hope I can give some indication of where we will be going on that and I hope that the noble Baroness will find that at least a move in the right direction.
Amendment No. 126 would mean that local authorities would have to make provision from day one of the exclusion, in the case of temporary exclusions, rather than, as proposed in the Bill, from day six. Under existing arrangements, schools and local authorities can and do make provision earlier than the sixth day either at a pupil referral unit or through another form of alternative provision. The issue here is whether we should require local authorities to make alternative provision earlier than the sixth day. We considered this issue long and hard, and I appreciate the arguments of the noble Baronesses, Lady Sharp and Lady Williams, but our conclusion was that to make a move in this direction was certainly unaffordable at the moment and probably unworkable. Let me explain why.
First, an appropriate place will not always be available immediately in a pupil referral unit unless there is a very significant expansion of supply. To have that significant expansion of supply and other provision that would be suitable for pupils would, in our view, be prohibitively expensive. Our estimate was that it would cost some £53 million a year, compared with the cost of making such provision available from day six, which is around £16 million a year. We accept that some local authorities are in a position to make this provision now because of the facilities they have available.
However, it is not simply a case of the availability of places in pupil referral units. It is important to note that under the law, quite rightly, provision for
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The conclusion we have reached is that the position in the Bill is right, but of course we expect local authorities to be mindful of their responsibilities. A conscientious local authority would be very mindful indeed of the needs of parents who find it difficult or well nigh impossible to make personal arrangements for the supervision of their children during a short-term exclusion.
Amendments Nos. 127 and 129 address the concerns raised by the noble Baronesses, Lady Sharp and Lady Williams, about the duties introduced under Clause 100. Reflecting on the concerns expressed in Committee and following the meeting of my officials with several parents’ organisations to which the noble Baroness referred, we recognise that parents need a clearer explanation of their duty under Clause 100.
I wrote to the noble Baroness, Lady Williams, undertaking to ensure that the model letter my department offers head teachers to send to parents when a child is excluded is revised to set out clearly the precise nature of their duty under Clause 100, the days on which that duty will apply, the consequences of failing in that duty and the availability of the defence of reasonable justification. Picking up on the suggestion of the noble Baroness, Lady Williams, in her latest letter to me, the model letter will also include the telephone number of local authorities’ education welfare services or equivalent. I undertake to speak to the Local Government Association about commitments it may be able to give about, for example, helpline arrangements with extended hours to ensure that this is as accessible as possible for parents, including those who are at work during the day.
I undertake to report back—I fear that I shall be unable to do so in the coming week—to the noble Baronesses, Lady Sharp and Lady Williams, on the results of those discussions, and to circulate details to other noble Lords.
However, after careful consideration, we are not persuaded that we should go further and seek to define “reasonable justification” in the way in which I know that the noble Baroness, Lady Williams, would wish. There are two reasons. First, to include in the notice which the parent receives an indication of what is and what is not a reasonable justification may simply present parents with a list of ready-made excuses. Secondly, having considered what such a list might look like, we do not believe that it is viable to compile it. It would be well nigh impossible to predict the range of factual circumstances in which the defence would be available. The test of what is reasonable will depend on the merits of the individual case. What is reasonable in some circumstances will not necessarily be reasonable in all circumstances.
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I reiterate that we accept that parents, particularly those who may be disadvantaged, need clear guidance. I have gone some way towards clarifying that advice. I am happy to commit the Government to consulting interest groups on the wording of our guidance, but we cannot go as far as to agree to the notice from head teachers including a list of acceptable justifications.
I further stress that the duty placed on parents under Clause 100 is quite specific: they must ensure that their child is not present in a public place during school hours during the first five days of exclusion. There is no duty on the parent to supervise their child or to be with their child during that time. Where a child may need supervision, the clause does not require the parent to exercise that supervision; a friend or relative could do it. A parent, therefore, is at liberty to arrange for the supervision of the child in whatever way they choose and this need not be in person; hence, they have no need to take time off work, to take their child to work with them, or to accompany their child to a pupil referral unit. However, as I have said, the greater availability of advice from the education welfare service—which I hope we can provide—should mean that those parents who have no capacity to make arrangements will be given proper support.
I know that what I have said falls short of what the noble Baroness, Lady Williams, was seeking, but I hope that I have been able to meet at least some of her concerns. I hope that she and the House will welcome what I have said as achieving the objectives that we all share. Having read the Steer report, I accept what the noble Baroness said. It is the professionals’ remark that the penalty of short-term exclusion often seemed to be no penalty at all which led us into this territory in the first place.
Baroness Buscombe: My Lords, I thank the Minister for his full response. I think I do so also on behalf of the Liberal Democrat Benches. He was exemplary in giving a very detailed response to all the amendments. I am delighted that the Minister has accepted our Amendments Nos. 119, 120, 121, 122, 128 and 131; I am just sorry that he did not do so in front of a rather fuller House. Given that we were not so lucky when we divided the House earlier in today’s proceedings, it is such a shame that colleagues are unable to witness that sometimes we can agree. I am pleased that the Minister has listened to what we said in Committee and responded so positively.
On Question, amendment agreed to.
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Clause 89 [Enforcement of disciplinary penalties: detention outside normal school hours]:
Baroness Buscombe moved Amendments Nos. 120 to 122:
“( ) The additional conditions set out in subsection (3)(a), (c) and (d) do not apply in the case of a detention during a break between school sessions on the same day.”
On Question, amendments agreed to.
Clause 90 [Power of members of staff to use force]:
Baroness Walmsley moved Amendment No. 123:
“(7) The Secretary of State shall issue, and may from time to time revise, statutory guidance setting out aims, objectives and other matters he thinks appropriate in respect of the discharge by persons to whom this section applies of their functions under this section.
(8) It shall be the duty of governing bodies of all publicly funded schools, including special schools, to ensure that the persons to whom this section applies are trained in accordance with the provisions of the guidance issued under subsection (7).”
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