Apprenticeships, Skills, Children And Learning Bill - continued          House of Lords

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Clause 196: Powers in relation to schools causing concern: England

634.     Clause 196 introduces Schedule 13 which contains amendments to Part 4 of the Education and Inspections Act 2006.

Schedule 13: Powers in relation to schools causing concern: England

635.     The Education Act 2002 gives the Secretary of State power to issue orders about teachers’ pay and conditions in England and Wales - see section 122 of that Act. The School Teachers’ Pay and Conditions Document has been included in an order under that section.

636.     Paragraph 4 of Schedule 13 to the Bill inserts a new section 60A in the Education and Inspections Act 2006. The new section introduces a system of teachers’ pay and conditions warning notices which allows LEAs to issue a notice to the governing body of a maintained school where the LEA are satisfied that the governing body has failed to comply, or failed to secure compliance by the head teacher, with the provisions of an order under section 122 of the 2002 Act relating to teachers’ pay and conditions (including the School Teachers’ Pay and Conditions Document).

637.     Section 60A also provides that if a teachers’ pay and conditions warning notice is given and, after a compliance period, the governing body has not complied with it or successfully made representations to the LEA against it, the school will become eligible for intervention. Some of the LEA’s and the Secretary of State’s current powers under Part 4 of the 2006 Act will then be available. These are:

  • section 64 (power of the LEA to appoint additional governors)

  • section 65 (power of LEA to provide for governing body to consist of interim executive members)

  • section 66 (power of LEA to suspend right to delegated budget)

  • section 67 (power of Secretary of State to appoint additional governors)

  • section 69, (power of Secretary of State to provide for the governing body to consist of interim executive members).

638.     Paragraph 6 of Schedule 13 to the Bill amends section 64 of the Education and Inspections Act 2006 so that where a school is eligible for intervention under Part 4 of the 2006 Act an LEA’s power to appoint additional governors will not be available if the Secretary of State has already appointed additional governors under section 67.

639.     Paragraphs 8 and 9 of Schedule 13 amend sections 67 (power of Secretary of State to appoint additional governors) and 69 (power of secretary of State to provide for governing body to consist of interim executive members) so that the Secretary of State’s powers will also be available in a case where a school is eligible for intervention by virtue of a warning notice under section 60 (performance standards and safety) or 60A (teachers’ pay and conditions). Formerly these reserve powers were available only when the school was eligible for intervention because it required significant improvement or special measures.

640.     Paragraph 10 of Schedule 13 makes further provision about warning notices by inserting new sections 69A and 69B in the Education and Inspections Act 2006. Section 69A gives the Secretary of State power to direct an LEA to consider giving a performance standards and safety warning notice to a governing body school if he or she thinks that there are reasonable grounds for the LEA to do so. The Secretary of State’s direction must be in writing and the LEA must provide a written response, copied to Her Majesty’s Chief Inspector of Schools within 10 working days. If the LEA agree to issue a warning notice they must do so - copied to the Secretary of State - within five working days of their response to the Secretary of State and withdraw any previous warning notice given to the governing body under section 60. If the LEA decides not to issue a warning notice they must set out the reasons for the decision in their response to the Secretary of State.

641.     New section 69B gives the Secretary of State a power to direct an LEA to consider giving a teachers’ pay and conditions warning notice to a governing body if he or she thinks that there are reasonable grounds for the LEA to do so. The Secretary of State’s direction must be in writing and the Authority must give a copy to the school’s governing body, and then provide a written response (including any response from the governing body) to the Secretary of State within 10 working days. If the LEA agree to issue a warning notice they must do so — copied to the Secretary of State — within five working days of their response to the Secretary of State and withdraw any previous warning notice they had issued to the governing body under section 60A.

642.     If the LEA decide not to issue a teachers’ pay and conditions warning notice to they must set out the reasons for the decision in their response to the Secretary of State. The Secretary of State may then direct the LEA to give a warning notice in the terms specified in the direction and to withdraw any previous warning notice they had issued to the governing body under section 60A.

Clause 197: Power to require LEAs in England to obtain advisory services

643.     This clause amends section 62A of the Education Act 2002. Section 62A currently gives the Secretary of State the power to require LEAs in England to obtain advisory services where:

  • the LEA have schools in either of the categories “requiring special measures” or “requiring significant improvement”, and

  • the LEA do not appear to be effective or likely to be effective in improving those schools or other schools in their area which may be placed in these categories.

644.     The advisory services can be supplied by an organisation, school or named person, who would provide advice to the LEA for the purposes of school improvement.

645.     Subsection (2) inserts an additional trigger for the Secretary of State’s power to require the LEA to obtain advisory services. The new trigger allows intervention when there are a disproportionate number of low-performing schools within the LEA’s remit and it appears to the Secretary of State that the LEA are unlikely to improve standards in those schools or in other schools in their area which may in the future become low-performing.

646.     Standards of performance of pupils at a school are assessed by reference to the matters set out in new section 62A(1C), which provides that the standards of pupils when they joined the school and the standards achieved by pupils at similar schools may be taken into account.

Clause 198, and Schedule 14: Powers in relation to schools causing concern: Wales

647.     Clause 198 gives effect to Schedule 14 which contains the Welsh provisions corresponding to those in Schedule 13 for England. The amendments are to the School Standards and Framework Act 1998, and have broadly the same effect as those made in relation to teachers’ pay and conditions in England by Schedule 13, except that the Welsh Ministers rather than the Secretary of State have reserve intervention powers.

Chapter 2: Complaints: England

648.     Under the current processes, when a parent or pupil is concerned about an issue arising from their individual experience at school, they can contact the teacher or head teacher of a school. If the issue remains unresolved they can contact the governing body of the school or management committee in the case of a short stay school (pupil referral unit).

649.     If the complainant remains unhappy, once the governing body has looked into their complaint, they may approach the Secretary of State under section 496 or 497 of the Education Act 1996 and ask him to consider their complaint. The Secretary of State must consider that the governing body has been acting unreasonably and that it is expedient to intervene. In practice there are few occasions when a direction may be made.

650.     These clauses create a new scheme for complaints and amend section 496/7 in respect of complaints heard by school governing bodies which have been brought to the attention of the Secretary of State and repeal section 409 and paragraph 6(3) and (4) of Schedule 1 to the Education Act 1996. The Government intends that the Secretary of State’s role will be replaced by a new parents’ and young person’s independent complaints service (referred to in clauses as the Local Commissioner).

651.     The Local Commissioner will be able to consider complaints about school issues affecting a particular pupil where they may not appeal by another independent route.

652.     Complaints and appeals relating to school admissions dealt with by the local education authority or governing body, permanent school exclusions and special educational needs will not fall within the scope of the new scheme as they have their own independent appeals processes. Special educational needs cases which are currently within the remit of the First-Tier Tribunal (Special Education Needs and Disability) (previously known as SENDIST) will also be outside the scope of the Local Commissioner.

Clause 199: Complaints to which this Chapter applies

653.     The clause specifies who may approach the Local Commissioner under the new independent service. “The Commission for Local Administration” and “The Local Commissioner” are statutory names for the body generally known as the Local Government Ombudsman.

654.     A “qualifying school” is a community, foundation, or voluntary aided school, community special or foundation special school, maintained nursery school or a short stay school. The Secretary of State may add to or amend this definition by order (made under clause 215) which would be subject to the affirmative resolution procedure.

655.     The clause provides that a complaint against a school may be made where a pupil or parent claims to have suffered injustice because of the actions, or omissions, of the governing body or by the head teacher exercising, or failing to exercise, functions of a kind specified in regulations under this clause. Where the head teacher delegates authority to another member of staff, the head teacher remains legally accountable for the member of staff complying with that action.

656.     Where a governing body makes arrangements for another individual or body to carry out functions on its behalf, this will also be capable of referral to the Local Commissioner. For example, where a school contracts out services for an “after school club”, a parent or pupil could make a complaint about an act that occurred whilst a pupil was attending this provision, despite the fact that it was not run directly by the governing body.

657.     Where a pupil is educated off the site of the school this will also be included within the remit of the Local Commissioner. For example, a pupil might be on the roll at one school but may attend some lessons at another school. This can happen in cases where a pupil is on roll at a short stay school but attends a mainstream school as part of their education.

658.     People acting on the governing body’s behalf can also be complained about. This includes a person employed by a local education authority or outside agency as they will be carrying out actions with the governing body’s permission.

659.     Complaints and appeals relating to school admissions dealt with by the local education authority or governing body, permanent school exclusions and special educational needs will not be capable of referral to the Local Commissioner as they have their own independent appeals processes. This also applies to cases that are currently within the remit of the First-Tier Tribunal (Special Educational Needs and Disability) (previously known as the Special Educational Needs and Disability Tribunal (SENDIST)).

660.     A parent or pupil may approach the Local Commissioner asking them to investigate their complaint. “Parent” includes anyone who has parental responsibility for a child or who has care of him or her. The Local Commissioner will be able to consider complaints from carers as well as parents and young people.

Clause 200: Power of Local Commissioner to investigate complaint

661.     The clause enables the Local Commissioner to investigate the complaint made by the complainant. Where head teachers or governing bodies have considered the complaint and feel the complaint should be referred to the Local Commissioner, they may do so with the complainant’s consent. For example, a head teacher or governing body may feel they have done all they can to assist the complainant and the Local Commissioner may be able to resolve the issue.

662.     Before proceeding to investigate a matter the Local Commissioner must be satisfied that the governing body had notice of the matter complained about and an opportunity to investigate and respond, or that it is not reasonable in the circumstances to expect the matter to be brought to the attention of the governing body (subsection (3)(b). A Local Commissioner is able to use discretion to take a flexible approach and proceed with an investigation if satisfied that it is not reasonable to expect the matter to have first been brought to the attention of the governing body.

663.     The Local Commissioner is able to investigate or discontinue (for example, vexatious or malicious) complaints as it feels appropriate. If the Local Commissioner is satisfied with the steps the school is taking or is going to take, it may decide not to investigate the complaint.

Clause 201: Time-limit etc for making complaint

664.     This clause requires complaints to be made in writing within 12 months of the incident occurring. A Local Commissioner may disapply these requirements. For example, where a pupil’s particular circumstances or level of education made it difficult for them to put the complaint in writing it may be given orally, or a complainant may raise complaints with the Local Commissioner after the 12 month period if the complainant can show a good reason for the delay.

Clause 202: Procedures in respect of investigations

665.      This clause sets out the processes involved in the Local Commissioner considering a complaint. It ensures that the governing body or head teacher about whom the complaint was made and any other person involved are allowed the opportunity to comment. Investigations must be carried out in private. But otherwise it is for the Local Commissioner to decide how to conduct the investigation. The Local Commissioner may obtain information and make enquiries from any person as they see fit.

666.     If the Local Commissioner sees fit it may choose to pay any persons a sum in respect of expenses incurred by them or an allowance for loss of their time for the purposes of carrying out the investigation.

Clause 203: Investigations: further provisions

667.     The clause gives the Local Commissioner various powers in order to facilitate their investigations. The Local Commissioner may require a governing body, head teacher, or any other person who in the Local Commissioner’s opinion is able to provide information or documents relevant to the investigation, to provide such information or documents.

668.     The Local Commissioner has the same powers as the High Court to compel the attendance and examination of witnesses and the production of documents. This means that anyone not complying with the Local Commissioner’s requests may be in contempt of court and subject to the penalties associated with that. If any person obstructs an investigation, or is guilty of an act or omission in relation to an investigation which would constitute contempt of court in proceedings in the High Court, the Local Commissioner may certify this as an offence to the High Court. The High Court may then deal with the person charged as though they had committed the same offence in relation to the High Court.

Clause 204: Statements about investigations

669.     This clause provides for statements to be issued by a Local Commissioner when he decides not to investigate or to discontinue an investigation, and when an investigation is completed. If the Local Commissioner decides not to investigate or to discontinue an investigation, the statement must set out the Local Commissioner’s reasons for that decision.

670.     When a Local Commissioner has completed an investigation, the statement must set out the Local Commissioner’s conclusions and any recommendations. The Local Commissioner may make recommendations for action which, in the Commissioner’s opinion, the governing body needs to take to remedy any injustice sustained by the person affected. Recommendations may also be aimed at preventing injustice being caused in the future as a result of similar action of the governing body or head teacher. For example, the Local Commissioner might recommend an apology to the pupil, or changes to the school’s discipline policy.

671.     The Local Commissioner must send a copy of the statement to the complainant, or, if the complainant is the pupil and the Local Commissioner thinks it appropriate, the parent) the governing body and head teacher. The statement must identify the school concerned. It will then be for the Local Commissioner to decide whether it is appropriate for the individual to be identified. The statement must not identify the complainant or any other person unless the Local Commissioner considers it necessary to identify that person.

Clause 205: Adverse findings notices

672.     This clause requires a governing body to consider any statement containing recommendations by a Local Commissioner and notify the Local Commissioner within the “required period” as set by the Local Commissioner of the action which the governing body has taken or proposes to take. If by the end of that period, the Local Commissioner has not received this notification, or is satisfied before the period expires that the governing body has decided to take no action, the Local Commissioner may require a governing body to publish an adverse findings notice. The Local Commissioner may also do this in two other circumstances: first, if not satisfied with the action which the governing body has taken or proposes to take; or second, if, after a further month following the end of the “notification period” (or any longer period agreed in writing by the Local Commissioner), the Local Commissioner has not received satisfactory confirmation that the governing body has taken the proposed action.

673.     An adverse findings notice, in a form agreed between the governing body and a Local Commissioner, should include details of any action recommended in the Local Commissioner’s statement which the governing body has not taken, any supporting material required by the Local Commissioner, and an explanation of the governing body’s reasons for not having taken the recommended action (if the governing body wishes). The adverse findings notice must be published by the governing body in a manner directed by the Local Commissioner. The Local Commissioner might, for example, require publication in a local newspaper or, if the school has one, on its internet site.

674.     A Local Commissioner must publish an adverse findings notice if the governing body fails to do so in accordance with subsections (4) and (5), or cannot agree the form of the notice with the Local Commissioner within one month of the date the notice was received (or longer if agreed in writing by the Local Commissioner). Subsection (7) requires the provider to reimburse the LGO on demand any reasonable expenses incurred by the Local Commissioner in performing the duty under subsection (6).

Clause 206: Publication of statements etc. by Local Commissioner

675.     A Local Commissioner may publish all or part of a statement under clause 204, or publish a summary of a statement. In deciding whether to publish a statement the Commissioner must take into account the public interest as well as the interests of the complainant and of other persons. The Local Commissioner may also supply a copy of all or part of a statement to anyone who requests it, and charge a fee for this. This fee must be reasonable and any fees charged are unlikely to be significant. Subsections (8) to (10) of clause 204 apply to a Local Commissioner’s publication of a statement or supply of any copy under this section. That means that, for example, the summary must not identify the complainant or any other person (other than the school) unless the Local Commissioner considers it necessary to identify that person.

Clause 207: Disclosure of information, Clause 208: Permitted disclosures of information by Local Commissioner

676.     These clauses restrict the disclosure by a Local Commissioner of information obtained during the course of an investigation. Information obtained must not be disclosed except for the purposes specified. Particular exemptions allowing disclosure of information include, for example, disclosure for the purposes of a complaint being investigated by Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, a local education authority under section 12 of the Education Act 1996 and the Secretary of State.

Clause 209: Law of defamation

677.     This clause confers absolute privilege for the purposes of the law of defamation on certain communications between a Local Commissioner and other parties and certain publications by a Local Commissioner. This means that these communications and publications are not actionable for slander or libel.

678.     The publication of any matter by a Local Commissioner in communications with a complainant, the Parliamentary Commissioner, Her Majesty’s Chief Inspector of Education, Children’s Services and Skills or a local authority will also be privileged. Privilege will also apply to the publication of statements, adverse finding notices, summaries and reports by a Local Commissioner.

Clause 210: Consultation with Parliamentary Commissioner for Administration

679.     Under this clause if a Local Commissioner thinks that any matters which are the subject of the investigation include a matter that could be the subject of an investigation by the Parliamentary Commissioner (these being the actions of the Secretary of State and its impact on the complainant) the Local Commissioner is required to consult the Parliamentary Commissioner and inform the complainant of how to initiate such a complaint. It also imposes a similar obligation on the Parliamentary Commissioner in respect of complaints made to them which contain matters which could be the subject of an investigation under this chapter. In such circumstances the Parliamentary Commissioner must consult the Local Commissioner and inform the complainant how to initiate such a complaint.

Clause 211: Arrangements etc. to be made by Commission

680.     This clause provides that the Commission must divide matters which may be investigated into appropriate categories and allocate responsibility for each category between the Local Commissioners. The Commission must also publish information about the procedures for making complaints under this Chapter.

Clause 212: Annual reports

681.     This clause provides that the Local Commissioner must prepare a report on the discharge of its functions for each financial year to the Commission for Local Administration in England (the Commission). The Commission must then prepare an annual report which must be laid before Parliament.

Clause 213: Secretary of State’s power of direction

682.     This clause enables the Secretary of State to make a direction to a governing body that has not complied with a recommendation from the Local Commissioner. The Secretary of State may direct a governing body to comply within a specified period. That direction is enforceable by a mandatory order.

Clause 214: Disapplication of certain powers of Secretary of State

683.     This clause amends sections 496 and 497 of the Education Act 1996. Currently, complainants may approach the Secretary of State asking him to consider the complaint. But for the Secretary of State to intervene the governing body has to be acting unreasonably and it must be expedient to intervene. In practice there are few occasions where the Secretary of State may issue a direction where the head teacher or school has failed in its statutory duty.

684.     The effect of the amendments is that the Secretary of State can no longer make a direction in relation to complaints against governing bodies of schools that have or could have been made to the Local Commissioner. Instead, the complainant may approach the Local Commissioner if they are not satisfied with the governing body’s response. After investigation into the complaint, the Local Commissioner will be able to recommend that the school undertake a course of action to remedy an injustice suffered by a particular individual.

685.     The Local Commissioner will offer a scrutiny that is independent of central Government and will be able not only to consider if a school has been acting unreasonably or unlawfully (which is the scope of the Secretary of State’s current practice) but also to recommend that a governing body provide a remedy.

686.     Regulations may prescribe that the Secretary of State may make a direction in relation to a matter that could have been referred to the new scheme where the complaint is from a “prescribed person”. The Government envisages that such prescribed persons might include the local education authority or governing bodies of other schools.

 
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Prepared: 7 May 2009