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12 Sep 2011 : Column GC109

Grand Committee

Monday, 12 September 2011.

Education Bill

Bill Main Page
Copy of the Bill
Copy of the Bill

Committee (9th Day)

3.30 pm

The Deputy Chairman of Committees (Lord Brougham and Vaux): My Lords, if there is a Division in the Chamber, the Member of the Committee who is speaking should stop doing so quickly and we will adjourn for 10 minutes.

Clause 41 : Inspection of further education institutions: exempt institutions

Amendment 122ZB not moved.

Clause 41 agreed.

Amendment 122ZBA

Moved by Lord Low of Dalston

122ZBA: After Clause 41, insert the following new Clause-

"School inspections: designation of teaching school status and special educational needs

The relevant eligibility criteria employed by the National College to determine teaching school status must include an "outstanding" Ofsted rating for any special educational needs work undertaken by that school."

Lord Low of Dalston: My Lords, this is a straightforward amendment which I hope the Minister may be willing to accept. The proposed new Clause 42, which I am moving, ensures that schools cannot be designated as teaching schools by the National College for School Leadership unless they have received an outstanding grade for teaching special educational needs.

The schools White Paper, The Importance of Teaching, made it possible for schools to apply for teaching-school status, allowing them to become centres of best teaching practice in their local area. Schools' ability to apply for teaching-school status was extended to special schools teaching children with predominantly complex special educational needs in the SEN Green Paper, Support and Aspiration: A New Approach to Special Educational Needs and Disability. The eligibility criteria for schools applying for teaching-school status include an Ofsted rating as outstanding for overall effectiveness, teaching and learning and leadership and management. In these days, when so many more children with SEN are educated in mainstream schools, it is hard to see how a school could get a rating of outstanding for overall effectiveness without being able to demonstrate excellence in the teaching of children with SEN. However, given the specialised nature of this work, it would seem sensible to require schools to be able to demonstrate expertise in this area as well as those already listed in

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the criteria if schools are to be expected to improve teaching in the area of SEN and improve standards and spread best practice.

The Special Educational Consortium is concerned that under the existing eligibility criteria a mainstream school applying for teaching-school status could achieve this without having the necessary expertise in the teaching of children with SEN. This is a concern because many children and young people with special educational needs are now being taught in mainstream educational settings, where it is essential that schools should be able to recognise the particular challenges they face in accessing the mainstream curriculum. Given the importance of the teaching workforce having the skills to work with children with SEN, it is vital that schools be able to demonstrate their excellence in this area as part of the criteria for achieving teaching-school status.

Having an outstanding rating for the SEN element of a school's work is also important for giving parents and children confidence that the practice being spread through local schools partnerships will help ensure that children with SEN can participate fully in learning. Introducing the additional criterion that schools have an outstanding rating from Ofsted for their SEN teaching will encourage schools considering applying for teaching-school status to address the way they open up the curriculum to children with SEN and, where children are taught in an SEN unit outside the mainstream school, how learning outcomes can be improved. This would help to address a significant barrier across all education settings, and the lack of expertise and understanding around low-incidence impairments such as deaf/blindness where access to communication and other teaching specialisms is necessary if the challenges are to be overcome.

Any sharing of best practice needs to have a well-developed knowledge base to draw on. However, the Special Educational Consortium's experience is that knowledge of SEN and the added difficulties that learners with special educational needs face is lacking in many local areas. Requiring schools desirous of acquiring teaching-school status to be able to demonstrate expertise in teaching children with SEN could help to address this issue. I beg to move.

The Earl of Listowel: My Lords, I support my noble friend's amendment. We have seen a great change in the training of teachers in recent years. In the past, teachers typically were trained for three years to their bachelor educational degree, which was a good long grounding. We have seen that period reduced to one year, and more and more teachers are being trained on the job. I welcome the move to more classroom-based learning for teachers but we have to be sure that it is right. There is a risk to that strategy and I look for reassurance from the Minister that teachers will be getting an understanding of SEN in that training. Perhaps I may make a further comment-we should not forget that more and more classroom assistants are those who work one-to-one with children with SEN. They too need the high-quality training.

Baroness Morris of Yardley: My Lords, perhaps I may make a brief comment and ask a question. I have some sympathy with the amendment. When I first saw

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it I thought that it was perhaps overprescriptive, but having listened to the noble Lord, Lord Low, I have sympathy with it. Throughout the proceedings on the Bill we have understandably heard a lot from the Government about not putting heavy regulatory burdens on schools. Given that that is the direction in which we are going, it is obvious that at some point in the system there should be a fair amount of regulation-otherwise the system collapses and no-one would know what is going on. My understanding from the teaching schools-of which I am a great supporter and I hope that they do very well-is that this is one of those areas where the Government have accepted that there will have to be a lot of monitoring and a fair amount of regulation. You can see that by looking at the criteria for a teaching school. For instance, a head has to have been in post for three years-a matter with which I have always quibbled in my mind. However, I am not going to quibble with it because I accept that this is one of those bits of the education system that the Government really will have to keep their eyes on.

I can therefore see the argument, given that one of the great weaknesses in our education system is the quality of training for SEN that teachers get, that there is never enough time in initial teacher training to do that adequately. It is not properly covered in the induction year-it did not happen when I was in power and there has not been much improvement since. There is a genuine problem and I am persuaded by what the noble Lord says-these are the areas where these institutions need to be properly regulated. Losing this opportunity, which we should seize to raise the standards of teaching those with special needs, would be again to commit the mistake that we have all committed through the years, which is to pass legislation and then in future years see how we can tag SEN on to it. That has been a huge fault of government for decades. We put something in place and a few months later think, "Ah, how can we make this relate to SEN?".

My question is this-how many schools designated teaching schools have not been awarded an "outstanding" category by Ofsted? What is that overlap, and how many schools not in that category have applied to become teaching schools? Perhaps the Minister can provide a little analysis of the comparison between schools which have been awarded the "outstanding" category as a result of inspections and those that are "outstanding" in SEN.

Lord Elton: My Lords, regarding the legislation passed in the previous Session, which enabled and made necessary the identification of people suffering from dyslexia and that group of disabilities, it would be helpful if the Minister could tell us to what extent the number presenting themselves as suffering from these disabilities has increased. That would give us an idea of the workload.

Baroness Jones of Whitchurch: My Lords, again, I rise briefly to support the noble Lord's amendment. Like my noble friend, when I originally read the amendment, I thought that it was self-evident. However, the more I have looked at it and listened to the debate

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this afternoon, the more it seems to me that, once all the other elements have been stripped out of the legislation and the provisions, we increasingly rely on Ofsted as the final fallback to guarantee standards.

The noble Lord, Lord Low, is right to say that if we are not careful SEN provision will be swept under the carpet and will not be seen as a major factor in provision within schools. Looking at this issue in the context of some of the other amendments that we will debate this afternoon, with the new emphasis on PRUs and alternative academy provision, if we are not careful there will, whether the Government had intended it or not, be a move to take a lot of pupils with specialist needs out of mainstream education into other provision, and the expertise that goes with it will be lost.

Therefore, the noble Lord's amendment is helpful. It would be reassuring to have it in the Bill, and it would reassure people who see mainstream schools as having an essential responsibility to provide SEN provision and to make sure that it is high quality and high class. It would also reassure people about the intent in the other sections of the Bill.

Lord Sutherland of Houndwood: My Lords, I sympathise very much with the amendment of the noble Lord, Lord Low, but I also sympathise with the tensions expressed by the noble Baroness, Lady Morris. There are difficulties here. This is pretty much a sledgehammer amendment and I am not sure that I would want to go that far. However, I invite the Minister to say that he will take away the spirit of the amendment, as well as the comments, and look at how we can best improve the quality of SEN teaching. It is a very tall order to ask any school to be outstanding in all areas that might have to be dealt with under the general heading of SEN, and we might find a more subtle way of inviting them to apply for an outstanding rating in areas where they show expertise.

Baroness Howe of Idlicote: My Lords, what the noble Lord has just said may well be the right approach. However, in the mean time, the important question was that asked by the noble Lord, Lord Elton, regarding number, where there has certainly been an increase. Obviously, as these matters are spread-as they should be, in my view-throughout the education system generally, it is very important that we know that adequate teachers and teaching assistants are trained to see that these children receive the very best education.

The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, I start by saying that I agree very much with the noble Lord, Lord, Low, about how important it is to make sure that teachers have the skills that they need to teach all pupils in the classroom, including, of course, those with special educational needs, and that it is not something that will be swept under the carpet-a point made by the noble Baroness, Lady Jones of Whitchurch.

In our SEN and disability Green Paper, which we published earlier this year, we set out a broad approach to achieving higher standards in the teaching of special educational needs and disability. Those measures included making the highly successful Achievement for All

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approach available to all schools; strengthening the coverage of SEN and disability in initial teacher training-in particular, by giving more trainees the opportunity to undertake extended placements in special provision in mainstream and special schools; continuing to fund the training of new SENCOs; establishing scholarship schemes to give experienced teachers and support staff the chance to undertake continuing professional development in SEN; developing advanced training modules in the most prevalent types of SEN, which will support teachers in developing their own knowledge and skills and in supporting other teachers; developing specialist modules in severe learning difficulties, and profound and multiple learning difficulties; and supporting specialist SEN training across clusters of schools. Those are some of the more general measures that we are taking, which I hope will reassure noble Lords. This is an area that we continue to take seriously. I agree with the noble Baroness, Lady Morris, that this is not something that one wants to see as an add-on; one wants to see it as integral to training.

Alongside those measures, teaching schools will, we hope, play an important role. We announced the first 100 teaching schools this July. The designation criteria did not include a specific requirement in relation to SEN, but they are intended to ensure that each teaching school has the capacity to improve teaching schools in SEN and disability in its area. I will write to the noble Baroness, Lady Morris of Yardley, with the information we have on the teaching schools rated as outstanding. In response to the point made by the noble Lord, Lord Sutherland of Houndwood, the new inspection framework we are developing with Ofsted will embed the connection between the achievement of different groups of pupils and the school's overall Ofsted judgment. Under that framework, for a school to be outstanding it will need to demonstrate that it is doing well for pupils with special educational needs and other vulnerable groups.

3.45 pm

All the first 100 teaching schools have demonstrated that they have a clear track record of collaborative relationships with other schools. Part of that role is to identify and co-ordinate expertise in those other schools to ensure that together they can provide excellence across the board. Teaching schools will also have the responsibility to identify, recruit and designate specialist leaders of education. Specialist leaders of education will be outstanding professionals in middle and senior leadership positions who have the capacity, skills and commitment to support professionals in other schools. Those leaders will include experts in SEN provision. Special schools also have an important role in spreading best practice to other special schools and to mainstream schools. Of the 100 schools designated in the first round, seven were special schools, and I hope that more special schools will be able to join the network soon.

We are working with the national college and the SEN sector to ensure that the next phase of the teaching schools programme also supports improvements for children with SEN-for example, on the designation criteria for specialist leaders of education. I will have to write to my noble friend Lord Elton on his point about the number of people identified with dyslexia.

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Overall, I hope that the noble Lord, Lord Low, will agree that a lot is being done to build the skills of teachers in supporting children with special educational needs and disabilities. It is an important area. The teaching schools will have an important role. I think that the new Ofsted designation will make that link explicit. We will continue to work with special educational needs charities to ensure that the focus on this important area remains. With that, I hope that the noble Lord, Lord Low, will feel able to withdraw his important amendment.

The Earl of Listowel: I hope that the Minister will forgive me if I make one further comment. Within the SEN group, I can see those children with emotional and behavioural difficulties particularly profiting from the Government's strategy to increase classroom-based learning. With those children, it is often the case that they can act out, act aggressively towards a teacher or other pupils. That can give rise to an understandable anger or irritation in the teacher which they may feel very moved to act on, but which will not be a helpful or appropriate reply to the behaviour. On the other hand, some children become very depressed, and it is easy to ignore them. Having an outsider observing the class and seeing how the teacher reacts can be a very helpful method to enable teachers to engage with EBD children and help to include them in the mainstream.

Models such as consultation for school staff, such as has been done for many years by the child and adolescent psychotherapist Emil Jackson in north London, is another way to help staff to think more deeply about their relationships with their pupils, particularly those who are challenging. I hope that the Minister will forgive me for making that additional comment.

Lord Low of Dalston: I am grateful to all those who have spoken in the debate, which has been supportive of the issue I raised. I am therefore glad to have flagged it up, but I am reassured by what the Minister said about the work going on-in particular what he said to the effect that an Ofsted designation of overall effectiveness will increasingly be difficult to achieve without a demonstration of quality or excellence in the field of SEN. I hope that the Minister and the department will continue to make clear to Ofsted that overall effectiveness requires all-round effectiveness but necessarily includes excellence in special educational needs. With the Minister's reassurance about the work that is going on and the indication that he has given of the work being done to clarify that an Ofsted designation of teaching-school status will increasingly require excellence in special educational needs, I am happy to beg leave to withdraw the amendment.

Amendment 122ZBA withdrawn.

Clause 42 : Inspection of boarding accommodation

Debate on whether Clause 42 should stand part of the Bill.

Baroness Brinton: My Lords, my noble friend Lady Walmsley and I have tabled this stand part debate in order to explore the many issues associated with the Government's intention to extend the inspection of independent schools, which is done by the Independent

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Schools Inspectorate and other independent inspectorates, from inspecting only educational provision to inspecting welfare provision as well. My noble friend is unable to be in her place today so I speak for both of us.

I thank the Minister for his letter to my noble friend of 19 July, in which he refers to Clause 42. He points out that the ISI already inspects the standard of education of Independent Schools Council member schools. When these education inspections were handed over to the ISI, he reminds us in his letter, safeguards were put in place. Ofsted was required to monitor the work of the independent inspectorates and publish an annual report. Clause 42 provides for Ofsted to monitor welfare inspections as it already does for education inspections. The Minister points out in his letter that the ISI has put in a consistently strong performance in those reports to date. Clause 42 also sets out the matters that the Secretary of State will take into account when approving or withdrawing approval from independent inspectorates.

My questions about this are many, and perhaps we can address them one by one. First, there is a matter of principle. The ISI was originally set up to inspect the ISC's own members. There is nothing wrong with that. Any organisation may legitimately self-inspect in order to achieve higher quality. A public inspection role is something else altogether, though, and to allow the ISI to move from that to the far more rigorous public role of child welfare inspecting and producing reports on which the public are to place reliance is very dubious unless the safeguards are far greater than those that I have heard so far. I remind the Committee that in this context the public have absolutely nothing else upon which to rely.

It is true that Ofsted monitors the work of the independent inspectorates, but the 2009-10 report consisted of nothing more than a letter from Her Majesty's Chief Inspector to a civil servant in the department in which only one paragraph covered safety and welfare, and even that paragraph makes claims that are totally inadequate.

I turn to the independence of these inspectorates from the schools that they are inspecting, and the undertakings and terms and conditions under which they take over this new responsibility from Ofsted. The Minister explains in his letter that since 2007 the ISI has been a subsidiary company of the Independent Schools Council, with an independent board. However, a quick look at the accounts of the company shows that the finances of the two organisations are completely intertwined. The words used in the accounts to 31 December 2010 are that the "ultimate controlling party" is the ISC. That does not make the ISI independent in any shape or form.

I am encouraged by the Minister's statement in his letter of 19 July that the ISI will become fully independent of the ISC from January 2012. However, I understand that the inspectors carrying out these inspections will still all have to be members of the ISC. They are all, indeed, teachers or former teachers or heads of ISC schools, so exactly the same board will remain in place. Therefore, how the organisation can, in practice, possibly be considered independent, even under these new arrangements, is something that I struggle with.

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What then become even more important are the undertakings and terms under which the ISI takes over this duty from Ofsted. When Ofsted took over the inspection of welfare and safeguarding from CSCI, we were assured that it was under the very same conditions under which CSCI operated. Can the Minister assure me that, when the ISI and the other inspectorates take over from Ofsted, they will again operate under the very same conditions and to the same standards? This is very important for the simple reason that none of these organisations is subject to the Freedom of Information Act, and it can be very hard to get out of them any information that they do not wish to give. In earlier years the CSCI inspection reports and, before that, those of county councils, did a good and thorough job-reliable, conscientious and carried out by those with the right skill set and experience. They were good precisely because they contained no element whatever of educational inspection. Welfare was not bolted on to the end of an education report; the two matters are totally different.

I turn now to the stability of the ISI. During the Recess there was considerable reporting of the fact that the Headmasters' Conference voted to leave the ISC. It takes with it most of the larger and more influential independent schools, and about £600,000 of the ISC's annual £1.4 million income. The reason given was that some head teachers are unhappy because the ISC has lost its focus on defending the interests of the independent sector. It is perfectly appropriate for a group to have an organisation to protect its interests, but it is not appropriate for the same organisation to be totally in control of the organisation that inspects child welfare in its schools on behalf of the public. However, the exodus from the ISC creates an organisation the stability and financial viability of which are in question. Taking away the subscriptions of the larger schools leaves it with a large number of smaller schools to support and inspect, and a smaller pool of inspectors from which to draw. Let us recall that all ISI inspectors must be from ISC schools under the current rules. Will the Minister assure us that this aspect of its operation, at least, will change if Clause 42 is implemented?

Another matter that the Government are currently considering impinges on this issue. Clause 39 exempts outstanding schools in the maintained sector from educational inspections. Consequently, there is an impending separation of the child welfare school inspection role from the education inspection role. Clearly, welfare inspections will have to continue in those schools that do not have inspections for their education standards. There will be an unavoidable divergence of inspection cycles, which will have the effect of making integrated inspections impossible in the maintained sector. One of the reasons given for Clause 42 in my noble friend's letter is that it would give independent schools the benefit of a single inspection event. Leaving aside the fact that welfare inspection is not for the benefit of any school but for the safety and protection of vulnerable children, it will be impossible to do a single inspection anyway. Also, there will to be pressure to relieve independent schools of the burden of inspection at all. Are we seriously to entertain the notion that the best of our maintained schools are to

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be relieved of the burden of the usual inspection cycle but Winchester, Eton, Harrow and Westminster, with their unarguable high education standards, are still to be inspected? It is obvious that they will want to be relieved of the burden as well. Where will this end? You would have the ISC arguing strongly for its schools to be relieved of the very inspection regime that its own inspection arm is charged with carrying out. This has not been thought through.

Finally, although most independent schools care for and protect their pupils very well, as parents would expect, there have been some appalling cases of abuse, which, when they eventually see the light of day, we discover have been going on for a very long time. I have had conversations with some victims of such long-term abuse. That is why my noble friend Lord Phillips of Sudbury, the noble Baroness, Lady Howarth, and others are very sceptical about the measures in Clause 13 to restrict the reporting of allegations against teachers. It has been far too easy in the past for people to close their eyes to abuse or make it easy for the perpetrator to resign quietly and go somewhere else. I am anxious to ensure that welfare inspections are done rigorously and that vested interests do not get in the way. We must always bear in mind that independent schools are commercial organisations. Even those run by charities make surpluses, which the charities can use for legitimate purposes. Therefore, there is the potential to lose a lot of money if the school is found wanting in the safeguarding department.

4 pm

I would also like to ensure that, where there has been abuse, the subsequent inspection overtly inspects what action has been taken, and openly reports whether the failures that allowed the abuse to occur have been put right. I hope my noble friend the Minister can assure me that, if the arrangements in Clause 42 are ever implemented, he will ensure that all these things happen. Parents expect it, and children deserve it, as do the very many good and responsible teachers and heads in the sector. We must remember that in exposing malpractice in these matters we are protecting the reputations of all the good schools which do these things well.

Lord Lexden: My Lords, following my noble friend's powerful speech, I want to make just a few points on inspection arrangements for independent schools. I do so as a former general secretary of the Independent Schools Council. It was during my time that the Independent Schools Inspectorate assumed its early shape, before being put on a firmer basis by the Secretary of State, and being given responsibilities which were clearly delineated, and approved by the Secretary of State, under the Education Act 2002.

One point that I would like to make is that the Independent Schools Council is not quite in the state of flux that my noble friend suggested. The Headmasters' Conference has had disagreements with the Independent Schools Council, which acts on behalf of a number of independent schools associations. There have been detailed inquiries as to how the Independent Schools

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Council might operate more effectively in the future. I understand that those negotiations and discussions have reached a satisfactory conclusion, and on that basis the Headmasters' and Headmistresses' Conference will be remaining one of the constituent elements of the Independent Schools Council.

There is no doubt at all about the independence with which the ISI operates. This was clearly laid down in the terms of reference that the then Secretary of State gave the ISI in 2002. It is becoming stronger and more manifest next year, as my noble friend mentioned, since the ISI is going to be reconstituted as an independent trust. At no time has the ISC sought to influence, directly or indirectly, the work that independent schools inspectors have done. This has been clearly shown by Ofsted's monitoring of the education inspections, which has been conducted since 2002 under the terms of reference laid down by the Secretary of State. Not one cause of complaint or censure has ever been laid against the ISI by Ofsted during its monitoring of education inspections. Indeed Ofsted's report last year praised the "excellent dialogue and communication" with schools, the "clear and authoritative" feedback, the "inspectors' courtesy and professionalism", and the "rigorous" checking of schools' "compliance with the regulations". I know from my own experience the seriousness with which Ofsted undertakes these duties, which are recorded publicly. Also, there is close Ofsted involvement in the everyday work of the ISI, since representatives of Ofsted-very senior figures indeed-come to the meetings of the committees which oversee the ISI's work.

As things stand at the moment, independent boarding schools are subject to two separate inspections, causing a great deal of duplication, and of course extra expense. The monitoring arrangements, having worked so well as far as educational inspections are concerned, are now going to be put-and this is a wholly new aspect of things-on a firm, statutory basis as, under Clause 42, the power to inspect welfare arrangements will pass to the Independent Schools Inspectorate as well.

The work done by the ISI is rigorously overseen. High standards have been maintained by the Independent Schools Inspectorate. There is a wide feeling that it is fit to carry out boarding welfare inspections, the quality of its inspectors and the rigour of its work having been clearly supported and underlined by Ofsted. To the extent that there is concern about the ISI's position, Clause 42 should increase confidence in that it puts into primary legislation a duty on Ofsted to monitor and oversee the ISI's work. This is something that already works well in practice for the educational aspect of school inspections. The clause will remove any doubt as to Ofsted's role and the quality assurance and oversight of the ISI's work, and it should lower costs to schools by substituting two inspectorates with one, with no lowering of regulatory standards. I believe that it is a welcome clause and that it should receive support.

The Earl of Listowel: I hope that the noble Baroness and the noble Lord will forgive my ignorance but are these inspections normally announced or are they unannounced?

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Lord Lexden: If the noble Earl is asking whether the inspectors arrive without notice, the answer is no. There are cycles in which the inspections take place. The inspectors do not suddenly arrive at schools unannounced.

Baroness Garden of Frognal: My Lords, I thank my noble friends Lady Brinton and Lord Lexden for what they have said, and I hope that some of the concerns that my noble friend Lady Brinton raised have been addressed in the remarks of my noble friend Lord Lexden.

Education inspections in most independent boarding schools are carried out by independent inspectorates. Boarding schools, unlike day schools, are also subject to welfare inspections, which are carried out by Ofsted, as my noble friend set out. Where possible, Ofsted and independent inspectorates carry out joint inspections to minimise disruption to the schools concerned, but there are two separate inspection reports, published on two different websites, and that information is readily available on those websites.

The Secretary of State already has a power to appoint an independent inspectorate to undertake boarding welfare inspections in England. We intend to use this power to appoint the Independent Schools Inspectorate, which will mean that schools affiliated to the Independent Schools Council will be subject to a single inspection, covering both education and boarding welfare, which will be followed by a single published report. However, I stress that there will be two reports-one for education and one for welfare.

The clause replicates the measures that are already in place on education inspections to ensure that any independent inspectorate appointed operates effectively. It allows Ofsted to monitor inspections by independent inspectorates of the welfare of children in independent boarding schools and requires the chief inspector to prepare an annual report on those inspections. It also gives the Secretary of State a power to direct Ofsted to undertake a boarding inspection of any school at any time, including where the boarding provision would normally be inspected by an independent inspectorate. This is the same power as he has in relation to other types of inspection, but in practice we would expect this power to be used only in exceptional cases.

I hope that my noble friend will agree that these measures, when taken together, provide transparency, accountability and confidence in the arrangements for independent inspectorates to carry out welfare inspections in independent boarding schools. I reassure her that welfare inspections will continue in all schools, whether they are outstanding or not.

I also reassure my noble friend that safeguards for welfare inspections will be as robust as they are for education inspections, and that regulations will set out criteria for the appointment of independent inspectorates and for terminating any such appointment, if need be. The criteria in respect of boarding will mirror the criteria for appointment in respect of education.

My noble friend mentioned the HMC vote to leave the ISC. I hope that she has been reassured by the point made by my noble friend Lord Lexden. I suspect that I will not have covered other points in my reply, in which case I will write to my noble friend, but, meanwhile, I hope that she will feel free to withdraw the amendment.

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Lord Lucas: My Lords, I hear what my noble friend says; I am half comforted by it. As she knows, I edit the Good Schools Guide, and therefore have a long-standing and unhappy relationship with the Independent Schools Council inspection service, which has yet to return even one of my e-mails. Although I agree that it is inspecting much better than it used to, it still seems to take the school's side rather more often than I find comfortable. I think that, because a lot of the people doing the inspecting suffer the same problem with difficult parents as the people who they are inspecting, they do not pay the attention that they ought to occasional signals of distress and therefore fail to spot underlying problems.

I am very dubious about mixing education and welfare; they are different concerns and different skills. How is a young boy in distress going to talk to someone who appears to be a schoolmaster if he will not talk to his schoolmaster? You need a completely different character, training and skill-set to be a good inspector of welfare-to understand what is going on in a family, if you are in a local authority context, or in a school. I am not anticipating great disaster. Schools are light years away from what they were when I was a child and there is no general problem, but we all know that a lot of girls' schools have eating disorder problems. There is certainly still bullying in some schools to an unacceptable level. Spotting those things requires someone to go round the school who pupils who have not talked to and who people at the school feel able to take into their confidence. As I said, that is a different character of person. For myself, I would be surprised if the ISC does that well. It may be a long while before we have a problem arising from it, because problems are mercifully rare.

The Earl of Listowel: My Lords, if I may, I want to ask the Minister a little more about unannounced and announced inspections. If I remember correctly, the Children's Commissioner for England, Professor Al Aynsley-Green, when he was in office, was particularly enthusiastic about his power to make unannounced inspections. Professor Eileen Munro, in her final report on safeguarding children, recently advocated the use of unannounced inspections, principally because they relieved organisations of a bureaucratic burden. She felt that that would be less burdensome to them than announced inspections. I would be interested to hear from the Minister what is the current situation with regard to those two kinds of inspection-announced and unannounced.

Baroness Garden of Frognal: My Lords, I will need to write to the noble Earl on that point, because I do not have the figures for the exact mix between announced and unannounced inspections and how they are carried out.

Baroness Brinton: My Lords, I am pleased to hear that the HTC will remain, but the point remains valid that the ISC could be in a state of flux and the financial inspection capability could be affected in future.

I am very grateful to my noble friend for saying that she will come back on detailed points, because there are probably too many to go through this afternoon,

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but the key things that have come up are the issue of announced and unannounced inspections, which remain a cause for me, and the principle of joining together education and welfare inspections. That remains a difficulty, and I should be grateful if the Minister would look at that again. The other key point that has not been covered is access to information. Having bits of a report somewhere is not the same as freedom of information on the detail of a report. As I mentioned in my speech, many schools in the independent sector would not be happy to have details such as that published and it might be pushed to the back. I am very grateful for the comments of the noble Lord, Lord Lucas. I am sure that the Good Schools Guide would be interested in ensuring that parents have access to information for all the reasons I explained.

4.15 pm

Lord Elton: My Lords, will the noble Baroness press the Minister a little more on the necessity of having two different sorts of people doing that kind of inspection?

Baroness Brinton: I am grateful for the intervention of my noble friend Lord Elton. The key point that I was trying to make earlier is that inspections under CSCI were clearly about welfare, as opposed those of the old-style Ofsted-if I can call it that-which were clearly about education. They require different professionals with different attitudes. It might be possible in some circumstances to run the inspections side by side, as has happened in local government, where there has been a plethora of inspections. However, the inspections are not the same, because they look at different things with different people. I should be grateful if the Minister would write to me on that point as well. I shall not continue my opposition to Clause 42 standing part at this stage, but will look forward to the Minister's responses before Report.

Baroness Howe of Idlicote: My Lords, access to information is crucial. I should like to be assured that all of us sitting around this table will have access to the reply to the noble Baroness.

Baroness Garden of Frognal: I assure the noble Baroness that the reply will go to all Members of the Committee.

Clause 42 agreed.

Clause 43 : Schools causing concern: powers of Secretary of State

Amendment 122ZC

Moved by Baroness Hughes of Stretford

122ZC: Clause 43, page 39, line 1, leave out subsection (2)

Baroness Hughes of Stretford: My Lords, under Clause 43, the Secretary of State will be given new powers to intervene directly and to move quickly-much

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more swiftly than hitherto-to close schools. In response to that proposed new power, I shall move Amendment 122ZC.

Currently, the Secretary of State can direct the closure of a school only if it has already been categorised by Ofsted in its independent inspection as requiring special measures. Clause 43 will allow the Secretary of State to step in and close schools on the basis not of an independent, standardised assessment but of any judgment that he comes to that that route of closure is required. Under subsection (3), he will be able also to direct a local authority to issue a performance standards and safety warning notice where it has decided against it. Then, when a warning notice has been given for whatever reason, and the school has not complied, the school will automatically become eligible for intervention and it will be open for the Secretary of State to close it.

Closures of schools could therefore be triggered in this way by the Secretary of State, and not on the basis of an independent assessment by Ofsted. That is a serious extension of power. Closing a school is a nuclear option and has serious implications for parents and an area. The provision would also mean a transferring of schools into academy status by diktat of the Secretary of State without the normal processes having been gone through. I shall explain shortly what I mean by that.

Will the Minister set out his thinking on how closures allowed under the clause would take place and how they would contribute to increasing standards and meeting parents' and pupils' needs? Under what circumstances would the Secretary of State step in to close a school that was not in special measures rather than, as is the case at the moment, help drive improvements in the school as a first option? How would such closures that the Secretary of State could simply enforce enable a local authority, for instance, to plan strategically to meet pupil place needs?

As noble Lords may gather from our amendment, which is different from those that will be moved by Liberal Democrats, we do not have a particular problem with the power contained in the clause giving the Secretary of State the power to direct a local authority as there may be circumstances in which local authorities are or have been slow to act in relation to schools where improvements are required. However, we do have a problem with the uncircumscribed and unfettered power of the Secretary of State himself to close a school, and there are two reasons for that. First, there is an issue of principle relating to such a serious option in an area; that if a school is not in special measures, it is right that parents, teachers and locally interested parties are able to play a part in determining what happens to it. There ought also to be an independent assessment by Ofsted on the need for that option. Secondly, I question whether the clause is something of a Trojan horse to accelerate the establishment of academies. The clause, coupled with Clause 36 on the establishment of new schools and the presumption in the Bill that any new school will be an academy, will mean that where, outside an Ofsted inspection and the conclusion of special measures, the Secretary of State decides to close a school-he can do so for a whole variety of reasons-the new school that takes its place

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will, by default, be an academy. It will not have to go through the normal processes that schools are now required to go through to become academies. It is conceivable that even some relatively well-performing schools could be required to close by the Secretary of State.

I would therefore be grateful if, in addition to dealing with the points I raised earlier, the Minister could reassure us on this point. Will he set out the vision for the future education system and say whether the Government see a place for maintained schools in that? Is it the case that this provision and Clause 36, and the presumption that all new schools will be academies, are designed to ensure that the Secretary of State can accelerate the establishment of academies, irrespective of the views of parents and teachers, by closing schools directly himself and then reopening them as academies?

Baroness Sharp of Guildford: My Lords, I, too, want to speak to Amendments 122A and 122B. Clause 43 gives the Secretary of State powers to intervene and close schools that are in special measures. That widens the powers of intervention to schools causing concern. Subsection (3) strengthens the Secretary of State's powers so that where a local authority, having been directed to consider set performance standards and to issue a safety warning notice, has decided not to do so, the Secretary of State may direct the local authority to give such a warning notice. If such a warning notice is issued to a school and it fails to comply, it immediately makes itself eligible for intervention. As the noble Baroness explained, that may well mean that it is closed and an academy is opened in its place. Under the Education and Inspections Act 2006, the warning notice gives the school the right to ask the chief inspector whether the warning notice is justified and the chief inspector may confirm it or otherwise.

Our problem with the subsection is the degree to which it removes all discretion from local authorities. The problem is that a local authority is asked to consider whether to give a warning notice and to set performance standards. If, having looked at the school, it decides that other measures might be more appropriate and it therefore does not issue a warning notice or the appropriate performance standard, the Secretary of State may now just peremptorily intervene. At a time when the Government are anxious to try to devolve responsibilities-the Localism Bill is going through the main Chamber today-it is against the whole spirit of localism that the Secretary of State should be given these somewhat draconian powers.

Amendment 122B is to some extent a probing amendment. It suggests that we want to know, if academies fail in the same way as some schools fail, whether they have to obey the same rules as maintained schools have to. Is it appropriate that there should be intervention in exactly the same way and that they might be closed down? If they are closed down, the obvious solution would be for the local authority to have the power to step in and open a maintained school in its place-a sort of quid pro quo for the shutting down of a maintained school and the opening

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of an academy. Here we would have the equal and opposite effect. We would like to know a little more about what happens if an academy fails.

Lord Hill of Oareford: My Lords, none of us wants to see underperforming schools letting down pupils year after year. To answer the question put by the noble Baroness, Lady Hughes of Stretford, it is to tackle that entrenched underperformance in certain areas that we are keen to take these measures, which are similar to measures that the previous Government intended to take. We know that out of the 200 worst performing primary schools in the country, over half have been below the floor standard for over 10 years, and 112 of the 200 worst performing primaries are in local authorities that have never issued a warning notice. I know that the previous Government were keen to tackle underperformance, and so are we.

Our starting point would certainly be that underperformance should ideally be addressed by locally developed and agreed solutions, and we are seeing more and more examples of local authorities working with the Government and schools to come up with agreed sponsored-academy solutions. Where there is consistent underperformance, however, and the school and local authority seem unable or unwilling to tackle it, we think that the Secretary of State needs to be able to intervene. This is an urgent and important issue so we intend, subject to the passage of the Bill, to commence the provision on Royal Assent.

The Secretary of State already has a range of intervention powers. Where schools are eligible for intervention-because they have failed to comply with a warning notice or have been judged to require special measures or to require significant improvement by Ofsted-the Secretary of State can appoint additional governors, impose an interim executive board or make an academy order. The Secretary of State can also require the closure of a school in special measures and direct a local authority to consider issuing a warning notice. It is these two powers that the previous Government's Children, Schools and Families Act sought to extend, and which Clause 43 of this Bill also seeks to extend.

We believe that there is an inconsistency in the current law that means that one intervention option, directing closure, is available only for schools in the Ofsted category of special measures. Where the Secretary of State needs to intervene, he should be able to choose a form of intervention that is most appropriate for the circumstances. If he chooses to direct closure, he has a duty to consult, including with the local authority and the school, and he will have to take account of the views expressed in reaching a fair and reasonable decision.

Warning notices are a well established legal tool for addressing underperformance. They can help schools to recognise and address their problems or, if the school is not capable of addressing the action, they can enable further intervention by either the local authority or the Secretary of State. However, it is the case that local authorities use their power to issue warning notices inconsistently. Two-thirds of them have never issued a warning notice at all. That is why

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the Secretary of State needs to be able to direct the local authority to issue a warning notice: so that they can be used where they are necessary, as opposed to being dependent on the practice of the local authority. However, we accept that there need to be checks and balances. Therefore, we have included a provision giving the governing body a right to appeal to Ofsted against a direction to issue a warning notice. It would remain the case that the Secretary of State would first have to direct a local authority to consider giving a warning notice. It is only if the local authority decided not to do so that the Secretary of State, having considered the reasons given by the local authority, could then direct it to issue a warning notice, subject to that check of the appeal to Ofsted.

4.30 pm

My noble friend Lady Sharp mentioned underperforming academies. I agree with her that, where an academy is failing, the same kind of tough and decisive action should be taken against it. If such action is necessary, we will take it. The Secretary of State's recent letter to academies that were below the floor standard and to local authorities with schools below the floor standard demonstrates our sharper focus on underperforming academies. However, as she might expect, we do not believe that the solution should be to withdraw an academy's freedoms. Those schools would need support to make better use of the autonomy that academy status brings, and we should look at why it has not happened. In the case of an underperforming academy, that would mean ensuring that effective leadership and appropriate support are in place. Through the funding agreement, we can ultimately use our powers to replace the sponsor to make sure that there is a suitable one to take that academy forward.

While I accept that no programme will ever be infallible, the evidence shows that academy status and autonomy are working. From 2009 to 2010, results in academies improved by an average of 7.8 percentage points, compared with a national increase of 4.5 percentage points for all maintained schools. Again, this year chains of academies have reported some impressive results. The measures that we propose are a logical extension of the current powers. They follow the direction that the previous Government intended to take but with some added safeguards. With that information, I hope that the noble Baroness will feel able to withdraw her amendment.

The Earl of Listowel: My Lords, I am grateful for the Minister's response. I certainly recognise the concerns about failing schools that have continued to fail children over long periods. However, I am reminded of something that a young man who grew up in a non-functioning family said to me a little while ago. He said, "I have issues of trust". It is very hard for families who are struggling to trust individuals or institutions. Their relationship with their school can become very important. I can imagine that it might be enormously disruptive to such families to find that their school is being turned upside down. Therefore, I will listen to the response of the noble Baroness. I am reassured to a large degree by what the Minister said, but I say to him

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and his colleagues that when you bring about these changes, it can be very upsetting for those vulnerable families.

Baroness Hughes of Stretford: I thank the Minister for his response and I thank Members of the Committee who have spoken on this subject for their contributions. I absolutely agree with the Minister that underperforming schools cannot be allowed to continue underperforming indefinitely. I feel as passionately about that as he does. So do many Members of the Committee, I suspect. However, the key question is: how effectively can we drive that improvement in performance, particularly when underperformance has been persistent over a period? Sadly, it is also generally the case that underperforming schools are not distributed evenly around the country. They tend to be concentrated in areas where local authorities are weak or where there are endemic problems and so on. There is often a concentration of underperforming schools. That issue needs to be grappled with. The route that the Government are taking is different in some respects from the one that we were proposing. The previous Government wanted powers to direct a local authority to act, but not necessarily the sweeping powers that this Government are taking to allow the Secretary of State to make the judgment directly about closing the school. That is a key difference. I can entertain the possibility that there may be a place for the Secretary of State to have that power but, in deciding this in Committee and on Report, we ought to have a much clearer idea of the criteria that the Secretary of State would use to make the decision for direct closure and the kind of circumstances in which those powers would be used.

There are other powers that it may be more constructive to use. For instance, there are powers to intervene directly with the local authority. As a Minister, I did that in a number of local authority areas in setting up performance management boards. Sometimes it was with representation from a Minister, chaired by a Minister with Department for Education officials with independent representation, with experts, with the chief executive of the local authority, with the director children's services and with head teachers, charged with driving up performance, not in 10 years but demonstrably in one or two years. That method might not be suitable everywhere, but where it is appropriate it drives up performance in schools without the nuclear option of closing local schools with the uncertainty that that creates for parents.

In that system, if maintained schools improve, they will stay as maintained schools. That is another key difference between our vision and that of the Government; we saw a place for diversity in having schools of high standards both in the maintained sector and, where this was necessary to drive up standards, as academies, with the freedoms that academies have. I do not think that is the case here, and my concern, as I have voiced before, is that the different measures taken together in the Bill will actually enable an acceleration of academies simply by diktat when the Secretary of State closes schools. The schools that will replace those schools will by definition be academies, not maintained schools, so I still have concerns.

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I saw the Minister and his officials nodding. It would be helpful if it were possible for him to write to me before Report with some idea of criteria and the circumstances in which these powers to close schools and reopen them as academies would be used, so that we could make a judgment on what is on the Government's mind on this issue. With that, I beg leave to withdraw the amendment.

Amendment 122ZC withdrawn.

Amendment 122A not moved.

Clause 43 agreed.

Amendment 122B not moved.

Clause 44 : Complaints: repeal of power to complain to Local Commissioner

Debate on whether Clause 44 should stand part of the Bill.

Lord Low of Dalston: My Lords, Clause 44 removes the power of the Local Government Ombudsman to hear complaints against schools, a power recently conferred on him by the Apprenticeships, Skills, Children and Learning Act 2009. Parents will instead have to complain directly to the Secretary of State, a remedy that is widely perceived to be slow and ineffective. Indeed, when we were discussing the question of complaints to the Secretary of State when dealing with the Academies Bill last year, it was clear that the system was creaking, with the standard time taken to deal with complaints averaging as much as 18 months.

The Local Government Ombudsman has always considered complaints about a wide range of education matters as they relate to local authorities, including concerns about special educational needs. However, until recently the ombudsman was unable to consider complaints about internal school matters. This meant that the complaints process was fragmented, with parents taking their complaint about the local authority to the Local Government Ombudsman but having to take their complaint about the school to the Secretary of State. Parents understandably felt surprised and frustrated when the Local Government Ombudsman was unable to pursue a complaint further once it became a school matter, and would be disappointed when they discovered that their only recourse was to complain to the Secretary of State.

In order to deal with this unsatisfactory state of affairs the last Government, in the Apprenticeships, Skills, Children and Learning Act 2009, extended the Local Government Ombudsman's powers to cover complaints from parents and children about a range of non-teaching matters concerning the internal management of schools by governors and head teachers. In April 2010, the Local Government Ombudsman launched a pilot phase of the new school complaints service. These pilots are taking place in 14 local authority areas, and are being used to shape the design and delivery of the new service. The Local Government

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Ombudsman has also been providing training and information sessions on the new processes, which were due to be in place nationally by this month, September 2011. I understand that the feedback from these pilots has been extremely positive, and indicates a strong level of satisfaction from schools and parents with the conduct and outcomes of the investigations. There have been no challenges by schools to the remedies proposed by the Local Government Ombudsman.

In these circumstances, I am at a loss to understand why the Government want to put the clock back, revert to the previous, fragmentary and unsatisfactory system, and remove the Local Government Ombudsman's power to investigate complaints about schools as well as local authorities. I am grateful to the Minister for his letter of 8 September, in which he set out the department's thinking very fully, but I am bound to say that I did not think it altered the case very greatly. Indeed, to my mind, it only underlined the need for a more concerted route for complaints.

I focus my remarks on the impact on children with SEN and disabilities. I recognise that complaints about a school's failure to deliver the content of a statement of SEN will still be covered by the Local Government Ombudsman. However, I also understand that the most common single school-level issue investigated by the Local Government Ombudsman in the pilots has been bullying, something which will be removed from his purview if this clause goes through. A literature review carried out by the University of Cambridge recently stated that:

"There is a great weight of evidence that confirms that children with SEN and/or disabilities are significantly more likely to be bullied or victimised than their non-disabled peers".

The Local Government Ombudsman is able to consider policies and practices of schools, and ensure that they are correctly following their own procedures on things like bullying. The Secretary of State has a much weaker set of investigatory powers, which focus only on breaches of the law, which means that he will be unable to go into matters which involve school policy rather than law, such as bullying. I had understood that the Government wanted to ensure that parents of children with SEN and disabilities are not hampered by bureaucracy, and complex processes, when all they want to do is make sure that their child gets the help they need. This is one of the guiding principles underpinning the SEN and disability Green Paper, with a view to making a system which is more user-friendly and works better for parents. I therefore believe the Government should think again about whether the handling of complaints against schools should be taken back into the Department for Education, and particularly whether this is the quickest and most accessible way of ensuring parents get the right support for their child. As the Lamb inquiry stated:

"The Local Government Ombudsman represents the potential for a unified route for individual complaints about SEN at both a school and local authority level, with more appropriate forms of redress available to parents".

4.45 pm

I realise that the department has published standards it will seek to comply with for dealing with complaints, but it is highly questionable whether the DfE has the

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capacity for this. No additional resources have been allocated to deal with this additional work and there are a number of further responsibilities that the Secretary of State is taking on as a result of the Bill for which provision will need to be made. I am sure that the Minister will agree that cases where children do not get the help they need often arise because a school and local authority have not been working effectively together. I do not therefore understand why the Government are proposing to go back to a system where parents have to complain to the ombudsman about the failure of the local authority and to the Secretary of State about the failure of the school-even when the failures relate to the same child. Parents want a single unified complaints process and they want their complaints to be dealt with quickly and effectively by a single body.

The National Deaf Children's Society has sent me details of a case in Leeds, where a deaf child with additional disabilities was badly let down by the council and the school. The ombudsman found that, for example, staff caring for and educating the child did not know sign language and could not communicate with the child. Communication was further hampered by the poor acoustics in the school, and expert advice from an audiologist on this was not acted upon. There were not enough staff to help the child to use the toilet. The child sometimes returned home in wet trousers, developed blisters and suffered urinary tract infections. The ombudsman identified several other serious failings, but Leeds was not one of the pilot areas in which the ombudsman was able to investigate the school. He regretted that he did not have the power to investigate the actions of the school and that he could not give a complete and comprehensive account of how the situation arose or was allowed to continue. The parent could complain to the Secretary of State, of course, but I am sure that the Minister will appreciate that having fought one battle she did not wish to have to start all over again. The parent wants and needs a single unified complaints procedure in order to ensure that swift and comprehensive action is taken to help her child.

I should be grateful if the Minister could say something to dispel my perplexity as to why the Government are pushing ahead with a proposal that will inevitably make the complaints process more complex and bureaucratic for parents. I should also be grateful if he clarified some points on Clause 44 made in the impact assessment. According to the assessment, the rationale for the Secretary of State taking this power back from the Local Government Ombudsman is that take-up has been low in the pilot areas. However, in those areas, the ombudsman has taken 200 complaints about schools. The assessment also states that the Secretary of State would expect to receive 200 additional complaints when the pilot ends and the Secretary of State again takes on responsibility for complaints about schools. It would therefore seem that take-up is absolutely in line with what the Government were expecting. Does the Minister agree?

Of course, take-up is a crude way of assessing the success of the pilots. Can the Minister tell us what steps the department has taken to assess the response from parents to the unified complaints procedure in the pilot areas? How have the pilots been evaluated? Have the views of parents in the areas where the new

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service has been piloted been taken into account when deciding to scrap it? We need to hear more about this before we agree to Clause 44.

There is something else that undermines confidence. Previous assurances regarding parents' ability to complain about academies would appear still not to have been met. During the passage of the Academies Bill commitments were made that a robust complaints procedure for academies would be developed by the Young People's Learning Agency. I do not believe that this has happened. Parents have called the YPLA, only to be advised that complaints against academies were not within its remit. This is still happening a year after the YPLA was given this responsibility.

It is in the interests of parents that the Local Government Ombudsman be able to investigate complaints against schools as well as against local authorities. Taking away this accountability mechanism before it has been fully evaluated, and at a time when the DfE is already facing a significantly increased workload, is something the Government should reconsider very carefully. Accordingly, I strongly urge the Minister to reconsider Clause 44.

Baroness Hughes of Stretford: My Lords, the noble Lord, Lord Low, has articulated clear and comprehensive arguments for Clause 42 not standing part of the Bill. I shall make three brief points in support of those arguments.

First, as the noble Lord said, the power of the Secretary of State to intervene in complaints is currently very limited. He is able to address only a very small number of complaints. The 2008 consultation document on complaints made this clear, stating:

"In practice, this means that except where there is a clear breach of a specific duty (for example, a school failing to have a complaints policy or a behaviour policy) there are few occasions when the Secretary of State is empowered to intervene".

It does not seem very constructive to argue that parents can appeal to the Secretary of State. Let us be clear, we are talking about unresolved complaints. We all agree that complaints should ideally be resolved at the lowest level, with the school, the head teacher or the governors, but where they remain unresolved after going through those processes, it does not seem reasonable to argue that parents can go to the Secretary of State when, in practice, the number and nature of complaints that the Secretary of State can hear in law is very limited. Where would parents with complaints outside that limited ambit go?

Secondly, the Secretary of State does not in practice investigate those complaints in person; they are investigated by civil servants in the department. There is an unhappy record of civil servants making decisions on individual cases whatever their nature. That is understandable because they neither know the detail nor have the local knowledge. We do not see consistency of decision-making across cases which are similar with such a system. It is not good practice for civil servants to make decisions on individual cases, but that is what happens in practice. A recommendation is then made to the Secretary of State, who also lacks any detailed knowledge with which to approve it or not. It is not a very satisfactory system from a parent's point of view.

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Thirdly, because of those deficiencies, an attempt was made, as the noble Lord, Lord Low, outlined, to see whether there was a better way. A pilot was launched whereby parents were able to take unresolved complaints to the Local Government Ombudsman. This started only a little more than a year ago-in April last year. We may well hear from the Government that take-up has been low. The scheme has not been very well publicised and, as the noble Lord, Lord Low, said, we have had little information on its impact-anecdotal evidence shows that it has been rather positive. We need clearer and more reliable information about the impact of the system, particularly parents' and schools' views. It seems premature to abandon that new method before we are clear whether it offers a more effective, more efficient and more satisfactory way forward.

If Clause 44 were to stand part of the Bill, we would be left with a very unsatisfactory situation. It was because of the problems with the system of parents going to the Secretary of State that there was an attempt to find another route. We should surely see whether the other system can be made to work more effectively from parents' and schools' point of view before we abandon it.

Lord Lucas: My Lords, I found the speech of the noble Lord, Lord Low of Dalston, immensely persuasive. Bullying in schools has been a problem without a solution for a long time, as I am sure my noble friend Lord Elton would agree. It is very hard for a parent who has gone through the procedures outlined by my noble friend in his response to the noble Lord, Lord Low, and not achieved any success to be stuck in a position where their child continues to be bullied and there is nothing more that they can do about it. There is, in effect, nowhere else for them to turn. The experiment started by the previous Government of giving this responsibility to the Local Government Ombudsman must be worth pursuing and evaluating.

I have recent experience of trying out both the department and the ombudsman with a complaint, although not in this area. Someone who lived in Lambeth was referred to me because he had been unable to find a school place for his child. Lambeth had failed in its duty to the extent that, when this man went to the appeal tribunal for places at a couple of schools, Lambeth said, "You don't need to bother. We've found him somewhere", which turned out not to be true. Not only had Lambeth not found him somewhere but it destroyed the chance that he had of getting his child into a school. I have talked to the department about that. It has been perfectly courteous but ineffective. When I discovered that this was something that the Local Government Ombudsman could take up, I referred my contact to it and it has been wonderful. It immediately put someone on the case and gave him someone to talk to day to day. He feels totally cared for and supported. It is a completely different experience from dealing with a government department. That is no surprise; government departments are not set up to do this. I did not know that the Local Government Ombudsman was as good as this but it has clearly developed an extremely good service.

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The other difficulty that I have come across recently is rather from the other side of the fence. I shall read something that was written to me by a local authority that was trying to deal with academies in its area:

"I am concerned that academies may not be complying in full with the provisions of the Pupil Registration Regulations. Some academies have withdrawn from Education Welfare Services, rather preferring to address matters of non attendance 'in house', however in certain circumstances they should, in accordance with the Pupil Registration Regulations, inform the Local Authority. For example, when a child has had 10 days or more continuous absence, and in other matters that are of concern to those in the Local Authority charged with safeguarding the welfare of children.

In addition, I would like to seek some clarity with regard to Free Schools and their obligations in keeping pupil registers, publishing attendance policies and advising other agencies when there appear to be concerns".

Communication between schools and the welfare authorities is vital. If a local authority feels that a school may not be complying with its obligations, what is it supposed to do? Is it supposed to write to the Secretary of State, who is then supposed to chase individual academies? This is not the business of a government department, particularly when there is an agency that apparently does these things so well.

Home education is the other area in which I come across this. There are many people for whom home education is a choice. They prefer to look after their own children and educate them in their own way. However, there is also a large number of people who have been forced into it and have, particularly if their child has SEN, come to the end of their tether with the non-compliance of schools and local authorities in dealing with their children's problems. To date there has been no good place for them to go. If the Local Government Ombudsman is to offer that sort of resource, it will be enormously appreciated. I could understand abandoning it because it had proved ineffective but to abandon it now is a great mistake.

The Earl of Listowel: My Lords, the noble Lord, Lord Lucas, persuasively supports the persuasive case made by the noble Lord, Lord Low. I shall put two quick questions to the Minister. One concerns the admissions of looked-after children. I have been very grateful to him for the constant reassurance that these children will continue to feature at the top of the admissions criteria. However, who will enforce that duty on academies? Who will check that that happens, particularly in this case? I can see that there may be a virtue in this strong local ombudsman, who could take up cases of failure to meet this requirement.

Secondly, the noble Baroness, Lady Hughes, emphasised the value of local ombudsmen's local knowledge. I join her in saying that I have great respect for the men and women of the Civil Service. However, there are tasks which they are very well suited to do and tasks which they may not be so well suited to do. Therefore, I ask my noble friend Lord Low whether he can produce a little more information about the professional background of local ombudsmen. Perhaps that is something that we can discuss outwith the Chamber.

I think, for example, about the success of the Youth Justice Board. In recent years, I have seen great improvements in an area where in the past there has

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been a lot of difficulty in dealing with children involved with the criminal justice system. The board consists of, for example, the director of the Children's Society and a judge from a youth court. There is a great pool of expertise at the top of the organisation and it draws in experts throughout the organisation. There is a lot to be said for choosing experts as advocates, thereby improving outcomes for children. I look forward to the Minister's response.

5 pm

Lord Sutherland of Houndwood: My Lords, Whitehall is a long way from Walsall, and the Secretary of State for Education, who sits on one of the peaks in Whitehall, is even further from the parent in the small primary school in Walsall. I think that it is a step too far to assume that the route for dealing with problems of this kind must inevitably flow through the Secretary of State's office. I support the amendment.

Baroness Howe of Idlicote: My Lords, I very much support the amendment of my noble friend Lord Low. Indeed, it is strongly reinforced by other experts in the field. It is clearly unacceptable for there not to be any method of redress for parents of children who are not having their needs met. Children taken into care have been given a lot of attention and it very much looks as though they will be a high priority for school placements and so on. That is right and proper because they are firmly the responsibility of the state. However, that does not mean that there should not be an equal method of appeal for those who fall into a lesser category of concern.

I am very impressed by the Local Government Ombudsman, as the noble Lord, Lord Lucas, has clearly been. I am certainly not going to complain because it is part of a government department, but it is equally important that it has local knowledge and can understand local situations.

Therefore, I hope that we shall hear that the Minister has a very definite concern about what he has heard and that he will be taking away the whole matter and coming back with something more positive on Report.

Lord Elton: Because my noble friend Lord Lucas is praying in aid, I think I should say that I found his speech persuasive. I was expecting the Minister to remind us that in effect the Secretary of State is no such person and that, when a complaint is made to him, someone quite different, more junior and perhaps more approachable manifests himself or herself. However, if that is not how the system works and if the only way to get a personal, sympathetic hearing is through the local ombudsman, I am very interested in hearing it.

For years I have been concerned about bullying in schools and about the extent to which the psychology of it is not understood. I know of children who do not feel that they can report that they are being bullied for a variety of reasons, one of which is that they think they should not be in that position. They think that they will be letting their parents down and they do not tell them about it at all. So when they go to the parent and the parent cannot get an answer, and the great strong arm of mother or father is unable to protect the

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child, a further blow is given to that child's confidence and its very home base is under threat. I was somewhat moved by the speech of the noble Lord, Lord Low, and was greatly concerned by what my noble friend said. I hope that the Minister will be able to give substantial reassurance on this issue before we get to Report.

Baroness Benjamin: My Lords, I should like to bring in the point of view of parents because many of them do not know who to complain to. I recently came across a case of a mother whose son was excluded. He was bullied at school and the SEN provision at that school was not particularly good, but because he was bullied he responded and got excluded. The mother thought that he was being treated unfairly but did not know who she should complain to. She wrote to her MP and me, and I could not tell her the best route to take. We therefore have to consider educating parents on who they need to complain to, and I support the amendment of the noble Lord, Lord Low.

Lord Hill of Oareford: My Lords, I am grateful to the noble Lord, Lord Low, for tabling the amendment and for enabling us to have this conversation. My noble friend Lady Benjamin ended on a good point because getting a perfect complaints system that is able perfectly to deliver everything for everyone is an extremely tall order, but I am sure that there is more that we can do in terms of people being aware of the routes of recourse. One of the challenges for the Government and the department in thinking how to take this forward is making sure that there is clarity about the routes of redress and about the way that different routes of redress fit together, because confusion is part of the issue and my noble friend is right to say that it is not a sensible way forward to expect a parent who is concerned about their children to know how a complaints service works in every regard. I will therefore certainly reflect on that point.

The noble Lord, Lord Sutherland of Houndwood, has talked about the peaks of Whitehall and the Secretary of State sitting on his peak. It is worth emphasising that what we are talking about is returning to the situation that existed until April 2010. It is not therefore the case that we are proposing a leap into unknown territory and are striking out in some unknown way. The situation that we are seeking to return to is one that obtained until April 2010. Until then the Secretary of State had always considered unresolved complaints and, of course, the point was made that the Secretary of State is, in such cases, a manner of speaking and it is officials who consider the complaints on his behalf.

The LGO service was, as has been pointed out, established in only 14 local authority areas. My first point is that the vast majority of parents and pupils will see no change to the current arrangements in their areas. The Government are very grateful for the work of the Local Government Ombudsman in the 14 local authorities in which the schools complaints service has been operating. It is clear that the intention behind the creation of the service was a good one, but we are not convinced that the LGO school complaints service is the right way to ensure that issues that cannot be

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resolved locally between parents and schools are settled as swiftly as possible-and speed is obviously one of the important issues here. The LGO service is a good service, but is expensive, relatively speaking, and was described by the Association of School and College Leaders as being a sledgehammer to crack a nut-that was its phrase, not mine. We believe it is preferable to return to a system in which complaints about schools which cannot be resolved locally come to the Secretary of State.

The noble Lord, Lord Low, spoke particularly about special educational needs complaints. I agree with him that the present system and arrangements are far from clear. That is in part due to the complex nature of the current system, which, as he will know, the Green Paper is seeking to address. Parents do have a number of routes of complaint in relation to the SEN assessment and statementing process, depending on the precise nature of their complaint and the remedy they seek. He argued that it would be preferable for all complaints relating to SEN in schools and local authorities to go to the Local Government Ombudsman. However, I think it is fair to say that there may be complaints for which the power of the Secretary of State to direct compliance with legal duties can provide a swifter and more effective remedy for a parent who is frustrated by the failure of a school or local authority to take action. It is the case that intervention by officials in the department can be the prompt that resolves a difficult situation. Appeals about SEN assessment and statementing can also go to the First-tier Tribunal, which will remain. I think that it is hard, under the current arrangements, for there to be a single route of complaint. I accept that what is needed is clear information for parents on which route is most appropriate. Parents certainly want clarity. The department should work closely with the sector over the coming months to look at how the process for considering complaints about SEN provision works coherently for parents.

I accept that noble Lords have concerns about the capacity and capability of the department to provide a first-class complaint-handling service for parents. There was also a point raised about the YPLA. My honourable friend the Minister of State for Further Education, Skills and Lifelong Learning has made a commitment that the department will publish a set of standards on the timescales, clarity, transparency and accessibility of its consideration of complaints. With this in mind the department has started work to review the way that complaints are considered and to establish appropriate safeguards. The policy statement on Clause 44 that we circulated on 12 July outlines the draft standards that the department is developing, and I would welcome views on those standards from noble Lords. Through that work, we will ensure that the department has processes in place to consider complaints on behalf of the Secretary of State to the high standards that parents rightly expect.

Given the particular concerns relating to special educational needs complaints, officials recently met both the Special Educational Consortium and the National Deaf Children's Society, which has been mentioned this afternoon, and will be meeting them again with the Local Government Ombudsman. Alongside

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the measures in the SEN and disability Green Paper to make the SEN system less adversarial, I am keen that the department should continue to work closely with interested parties in developing an improved service for this group of parents. I would like to extend an offer to the noble Lord, Lord Low, to discuss the improvements that we are seeking to make.

There was a specific question from the noble Earl, Lord Listowel, about the admissions arrangements for looked-after children. Complaints about admissions policies will go to the adjudicator. We are proposing to extend the groups of those that can complain. In terms of the refusal of a place to an individual child, there are the local admissions appeal panels. If there is further information I can send him, I will.

I recognise the views that have been expressed this afternoon, and I do think that this is an important area. I hope that I have provided the noble Earl, and other noble Lords, with some reassurance about the importance we attach to this, and at the moment I would ask the noble Lord, Lord Low, to withdraw his opposition to the clause.

5.15 pm

Lord Griffiths of Burry Port: Before the Minister sits down, may I probe a little further? He says that, in so far as 14 areas are currently exposed to the new method that has been applied since April 2010, most parents will not notice any difference. Of course they will not; there are only 14 areas where the trial is being implemented. The more important point is what results are coming out of that trial. From what the noble Lord, Lord Low, was telling us, there are quite important, positive and affirmative messages about the success of this new system that should, if the logic were applied, be made available to the whole country instead of just 14 areas. Certainly, proper time for evaluation is necessary before taking a draconian measure of this kind, which subverts something that has been argued for and put in place and is being accepted as a reasonable way forward-especially by a Government who tell us time and again that they want smaller government and for fewer things to happen from Whitehall rather than more.

I have one further thing to say. The Minister introduced one word in his summing up that has not been mentioned at all in the debate apart from in his speech. We have all talked about the arguments and argued the case, reason has been invoked and we have appealed to experience and the history of this problem as it moves forward, but I want the Minister to give me an assurance regarding the word that he introduced: finance. Is it for financial reasons that we are moving from one system to another? Is that the driving force that would stop something so logical, appropriate and appreciated from taking place?

Lord Lucas: My Lords, I was waiting to see if my noble friend wanted to take advantage of a chance to reply. He has not yet convinced me with his arguments. We have had an experiment running, and if we are to terminate it we ought at least to be allowed to see the results so far. It really ought to be up to the Government to provide them to us, and I very much hope that

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between now and Report we will have the chance to see a narrative, if not an evaluation, of what has been achieved so far.

These are long-standing problems, particularly when it comes to bullying, SEN and children getting into home education when they do not really want to be there. I am conscious that this has happened over a long period and in quite a high volume without any indication that the current methods, which we are to go back to, have provided an adequate answer. What was proposed by the previous Government and is now being trialled is a transfer from one set of officials who are not specialised and have limited powers to another set of officials who are specialised and have better powers. That seems to be worth trying. That is not to say that this is something that should not be done by Government; rather, it is to say that if we do it in a slightly different way, it could be done better.

I am conscious of the suffering that is caused by the current system and its inadequacies, and I do not want to go back to it. I do not mind going back to it if the system being trialled turns out to be no better and more expensive, but we ought to know what the evaluation is.

Lord Low of Dalston: My Lords, the Minister has asked me to withdraw my amendment and my opposition to Clause 44 stand part. I will do that for the moment but a number of points have been made around the Committee to which we may want to return on Report, if it has not been possible for the Minister to give us greater satisfaction on them. I thank all noble Lords who have spoken on all sides of the Committee.

I shall clarify a couple of points. I am grateful to the noble Baroness, Lady Hughes, for making the point that we are talking here about unresolved complaints-complaints that have not been able to be resolved at local level. We all agree that complaints should be resolved at the lowest level possible, and it is only the unresolved ones that we are talking about referring to either the ombudsman or the Secretary of State.

The noble Earl, Lord Listowel, asked me to say a bit more about the Local Government Ombudsman. I cannot say an awful lot, but I imagine that his office is staffed by people who are versed in the law, administration and local government. That is what I would expect.

Like others, I am bound to say that I have not been completely persuaded by the Minister's arguments. As the noble Lord, Lord Griffiths, pointed out, the desire to bring everything back to the Secretary of State comes rather oddly from a Government who preach so much localism but practise so much centralism. That we are merely returning to the situation as it was before 2010 may very well be true, but it was the pre-2010 situation which was found to be unsatisfactory. That is why the move to the Local Government Ombudsman was made.

It may be that, because the pilots have operated only in 14 areas, the great majority of people have not seen the benefits of the ombudsman's style of hearing complaints, but those who have not known anything better and are still mired in the pre-2010 situation might be pleased to experience the service that is offered under the 14 pilots.

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Ministers have told us that bringing the investigation of complaints back to the Secretary of State would enable a quick resolution, but, as I said when opposing the clause, it has not been everybody's experience that the procedure of the Secretary of State's office has been all that expeditious in the past. It is clear that a lot of work still needs to be done before that route is fit for purpose.

It would be best if the Government were to put this on hold. If they can satisfy us by giving us the results of the evaluation before Report, that would be very helpful. If that is not possible, I would ask that the matter be taken back until there can be a proper evaluation. We might then be able to consider it again in future when another education Bill comes before the House.

The Minister kindly invited me to discuss the matter further with him, which I am happy to do. I would be very happy to join the discussions that he is having with the Special Educational Consortium and the National Deaf Children's Society if that would help to see whether we can clarify the procedures at least in relation to children with special educational needs in the context of the implementation of the Green Paper.

Although, as I have indicated, there are a number of unresolved issues here to which we may wish to return on Report, I no longer wish for now to oppose that the clause stand part of the Bill. I do so in the hope that the matter can be progressed on the basis of further discussions between now and Report or, if not then, when the Bill comes back before us on Report.

Clause 44 agreed.

Clauses 45 and 46 agreed.

Clause 47: Determination of permitted charges

Debate on whether Clause 47 should stand part of the Bill.

Baroness Hughes of Stretford: My Lords, I hope that we can deal with this quickly. This clause amends Section 456 of the Education Act 1996, on the regulation of permitted charges, to achieve two objectives-first, to allow a charge for the cost of buildings and accommodation when a school provides an optional extra, and, secondly, to make an exception for early years provision whereby a charge can be made only for teaching staff engaged under contracts for services and allow a charge to be made for employed staff. It is a rather technical issue.

I have a number of concerns about the way in which these provisions might operate. I am very grateful to the Minister for two letters that he sent me, on 21 June and 20 July this year, clarifying the way in which the Government envisage these measures operating. The assurances depend to a large extent on the regulations behind the provisions, which cannot be made totally clear to me today, but I should be grateful if the Minister could put the position on record in her reply, which would at least give me and other Members some assurance about the operation of these measures.

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Without delaying the Committee further I ask the Minister, first, to confirm that through regulations the measures will not enable schools to delay entry into the reception class, keep children in nursery classes longer, and therefore charge. Secondly, can she confirm that the measures will not enable schools to charge for any child in reception class, even if they are still aged four? Thirdly, will the measures enable charging only for teaching staff over and above the free entitlement? Fourthly, can the Minister also assure me that there will be some protection for the additional free hours that many local authorities currently provide for disadvantaged and vulnerable children; and, fifthly, that there will be some attempt to specify some concept of reasonableness in the charges that schools can make and how the regulations might define how the charges to parents may be made up so that they are reasonable? If we can get those assurances on record today, I am sure that it will take us forward.

Baroness Garden of Frognal: My Lords, many schools provide high-quality early education provided by parents that is good for getting children ready for school. However, schools can currently effectively offer only the free entitlement-the 15 hours a week, 38 weeks a year-that all three and four year-old children are entitled to. This is because they cannot charge for extra early years education that they provide during school hours for three and four year-old pupils over and above the 15-hours' free entitlement.

The previous Government took a power in the Childcare Act 2006 to make regulations enabling schools to charge for additional hours that they might wish to offer parents. The Bill, therefore, does not seek a power for schools to charge. It enables schools to reflect the costs of their provision in that charge. It is, in effect, a technical clause. It is about ensuring that charges for optional extras can include a proportion of building and accommodation costs and, for early years provision, the time of qualified teachers.

Why are we proposing this change? Because making school-based early years provision sustainable will create greater choice for parents about the type, quality and flexibility of early years provision that they can take up for their child. We want to enable parents to take up provision above their free entitlement in the maintained sector, if they wish to, as they already can in private, voluntary and independent providers.

Enabling schools to charge appropriately will help them to remain financially viable, but I stress that schools will not be permitted to make a profit from charging and will be able to charge only up to the costs of delivering the provision. I reassure the noble Baroness that that will of course be a reasonable charge and it must be within boundaries.

Furthermore, it will not be permissible in any way for schools to charge for early education that is part of the free entitlement, including-I reassure the noble Baroness on this point, too-the new entitlement for disadvantaged two year-olds, or for reception provision. The Government remain committed to reception classes being free, with full-time provision of 25 hours a week from the September after the child turns four. The noble Baroness referred to the letters from my noble

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friend the Minister of 21 June and 20 July, which we hope will have given her further reassurances on those points.

There is no ability for schools to charge for education during school hours for pupils of compulsory school age, and there is no ability for them to charge for hours provided to parents for free under the early years entitlement-a measure which the noble Baroness introduced and which we have extended in this Bill. We are committed to ensuring that reception provision is free, and there will be no ability to hold children up in nursery classes, as she feared. Through the Bill, we want to ensure that schools can charge for additional, optional provision in a way that enables them to cover their costs and provides greater choice of provision for the parent and a consistent and high-quality early education for the child.

If the noble Baroness raised other points which I have not covered, I will of course write to her, but I hope that, with those reassurances, she will feel happy to withdraw her objection to the clause standing part of the Bill.

The Earl of Listowel: I thank the noble Baroness for raising this issue, as it has given us an opportunity to learn more about the Government's intentions. I warmly welcome the purpose of the clause, which is to allow an extended offer of high-quality early years care in nurseries attached to schools. We all know how important high-quality early years care is in regard to outcomes for children, so this is welcome news. Particularly in nurseries attached to schools one finds a high level of stability in the staff, with turnover being only about 4 or 5 per cent, compared with in the region of 15 per cent in some day centres. That is also very welcome.

I also thank the noble Baroness and the Minister for their correspondence on early years, which I appreciated.

Clause 47 agreed.

Clause 48 agreed.

Schedule 12: Further education institutions: amendments

Amendment 122BZA

Moved by Baroness Sharp of Guildford

122BZA: Schedule 12, page 90, line 17, leave out paragraph 3

Baroness Sharp of Guildford: My Lords, I shall speak also to Amendments 122BZB, 122BZC and 122BAA. These four amendments fall into two groups, which are about linked but separate issues. I shall start by speaking to Amendments 122BZA and 122BAA and shall then move on to the other two. Both these amendments propose that we do not delete the duty on further education colleges and sixth-form colleges to promote the well-being of their local area.

I have put forward these amendments because I am currently leading a commission of inquiry promoted by NIACE, the National Institute of Adult and

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Continuing Education, the AOC, the Association of Colleges, and the 157 Group of large further education colleges to look into the role of colleges in their communities. This follows directly from last November's two White Papers on skills-Skills for Sustainable Growth and the accompanying strategy document. Both these White Papers proposed a considerable freeing-up of colleges from the micro-management of the Learning and Skills Council, and this is now embodied in many of the amendments to Schedule 12.

The aim is essentially to free colleges to take their own decisions. There is particular emphasis on their working for and in partnership with local employers on the one hand and individual students on the other, and on making sure that they meet the needs of these two groups. However, the White Papers also refer to colleges meeting the needs of their local communities. Implicit in the deregulation is that the needs of employers, individuals and local communities vary from area to area and, therefore, that what is required also varies from area to area. My job in chairing the commission of inquiry is to put a bit of flesh on what the notion of serving the local community might mean for such colleges. We published an interim report in July and our final report is due in November. The outcome of our inquiries has been to highlight the potential of further education colleges to play a vital role within their communities in all kinds of ways.

For example, the provision of youth activities might be seen as important in relation to the riots that we saw this summer. Some colleges link up with local authorities to provide imaginative and extensive youth activities, ranging from sport and motor mechanics to drop-in clubs. These bring young people into the college to see the facilities and use the canteen. They then learn that the college is not such a frightening place. The evaluation of these experiments is that they have been very positive in reducing the number of local NEETs, drug-taking and youth crime. Likewise, in some areas colleges play a major part in outreach activities for ethnic minorities. They provide English classes for speakers of other languages, parenting, home-making and cookery classes, and classes in basic numeracy and literacy. These lead to other college courses and often to higher qualifications, so that many people in these communities move from being dependent on welfare benefits to sometimes quite substantial jobs.

On a different tack, some colleges run consultancies for small and medium-sized businesses, helping them with business planning, financial management and even a limited amount of R&D. The activities vary from community to community, depending on local needs. Many are run in partnership with other organisations. We have coined the phrase "colleges as a dynamic nucleus within their communities". They are proactive, forming partnerships and companies and leading consortia. The Minister of State for Skills and Further Education, Mr John Hayes, is anxious to see colleges pursue this role, particularly in disadvantaged communities, to provide a focus for regeneration and generate a sense of pride in their local communities. Therefore, from the point of view of my commission, I am very anxious that this duty to promote well-being

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in a local area should remain. The best of our colleges do it already but it is very useful that there should be a statutory obligation to promote well-being to put pressure on those colleges that do not. I know that the Association of Colleges took the view that any good college would do it. Yes, good colleges do it, but it is those that do not that we want to put pressure on.

I turn now to Amendments 122BZB and 122BZC, which concern a different issue. The passage of the Apprenticeships, Skills, Learning and Children Act 2009, with which many of us around the Table were involved, established sixth-form colleges as separate entities. On examining the Act, the Office for National Statistics decided that both sixth-form colleges and further education colleges had been wrongly classified back in 1992 as being part of the non-profit sector, rather than as public sector institutions, and that the right classification for them was as public sector institutions. The deciding factor was that it is the Secretary of State who ultimately agrees and sets their articles of governance and has the right to dissolve them. If further education colleges are, however, classed as public sector, they will be required to obey all kind of Treasury rules about managing their finances. This effectively stops them from doing all the enterprising things-like setting up subsidiary companies and forming partnerships in their communities-that I would like to see them doing, in order to satisfy my remit in leading this commission, and in order to get things moving after that. The Office for National Statistics is sympathetic to this, and has allowed time for the legislation to be amended in this Bill, so that further educational colleges remain, as they have been, classed as non-profit institutions. The purpose of these two amendments is to have a shot at doing this, by helping to change their status.

Amendment 122BZB is about altering the articles of governance. The present legislation gives the Secretary of State-in the form of the Skills Funding Agency, the appropriate authority-powers to modify the articles of governance. The amendment shifts the ultimate decision-making power to the corporation itself, and makes the SFA's role merely that of having to be consulted. Likewise, Amendment 122BZC places the ultimate decision on winding up the corporation on the corporation itself, although the Secretary of State, through the SFA, may have considerable influence on that decision, not least in refusing funds.

I am aware that these two amendments are not sufficient in themselves. My aim was to get this issue on to the agenda, because I am anxious that colleges should have the power to go ahead and be entrepreneurial in their own right. I beg to move.

Baroness Jones of Whitchurch: First, my Lords, we accept the Government amendments which have been tabled. As the Minister set out in his letter to me, they correct what ended up being an unintentional consequence of previous legislation, as it affected voluntary sixth-form colleges. On the presumption that these amendments have been the subject of consultation with the Catholic Education Service, which raised the concerns in the first place, if it is now content with the proposed changes, we echo that contentment.

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Secondly, going back to the intent of the changes set out in Schedule 12, I have a number of concerns which I want to share with noble Lords today. First, on the issue of promoting economic and social well-being in their areas, I agree with the points made by the noble Baroness, Lady Sharp-there is a strong argument for sixth-form and FE colleges to play a role in their wider communities, and to link with local youth services. I was very interested in her concept of colleges as a dynamic nucleus in the community, a concept which I think is worth exploring. As she identified, one of the lessons of the recent riots is surely that those areas with the strongest embedded youth provision, providing positive alternatives to gang culture-something in which colleges can play a part-can be the most resilient to unrest and destruction, as they were over the summer. FE colleges have worked hard in recent years to develop robust partnerships with employers in their areas, knowing the local employment market, and tuning the curriculum offers to the needs of local employers. As the noble Baroness, Lady Sharp, says, a number of them already do that, but if we start to remove this provision of promoting economic and social well-being, there is a danger that we will be sending the wrong message: rather than encouraging that development, it will become a licence for colleges to turn inward and insular again, instead of embracing that new role.

Furthermore, on acquiring land and borrowing money by using existing property as collateral, while I would not claim to be an expert on the issues that the noble Baroness, Lady Sharp, was raising, I do have concerns about some of the provisions set out in Schedule 12. I am concerned about the consequences of some of these new freedoms. It is not absolutely clear to me where the demand for this is coming from. It seems to me that the managers of FE colleges have many skills, but intervening in money markets is probably not one of them. My fear is that some well meaning college leaders will quickly find themselves out of their depth.

5.45 pm

I shall make an analogy. I happen to chair a housing association and we constantly borrow money on the financial markets-we take out bonds and such like and have a dedicated treasury team that does that sort of work-but then we lend money against our housing stock and use the money to build more properties so that we can expand the amount of social housing in the market. That is our core business. The core businesses of FE colleges, though, is providing education, not becoming experts in property and land.

There are some issues that flow from that. Will there be lending against property that is essentially owned by the public sector, and what happens to the land or property if they then default? Who will be held accountable for those financial dealings? The most obvious stark spectre is that some colleges could go bankrupt. What would the consequences of that be? However, the more likely commonplace scenario is that they would just make less than optimum-mediocre or poor-commercial decisions. How would they be held accountable for those relatively poor decisions?

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Will this be part of the Ofsted inspection in future? Again, I am not quite sure where the impetus for this initiative is coming from. We need to be clear where the proper checks and balances are to ensure that they will exist in any subsequent system.

My noble friend Lord Knight cannot be here so I am moving Amendment 122C, which again raises the issue of intervention by the Secretary of State, not the local authority. This is becoming a bit of a hardy annual, which we have debated in a number of other contexts throughout this Committee. Once again, this is about the conflict between national and local power.

We believe that local authorities are best positioned to intervene when colleges have cause for concern. They are likely to be one of the first bodies to become aware of any issues that arise because of their local knowledge and connections, they will have the means and accessibility to act quickly if necessary and they will have the local credibility and accountability to justify their actions. It is still not clear to us whether the Secretary of State will have the resources to monitor effectively the performance of colleges nationally or the staff to intervene. A possible result of this is a fall in standards rather than an increase.

We are not convinced that parts of the reforms in this schedule concerning the management and governance of colleges are justified, the risks have been properly assessed and the consequences properly thought through. We hope that the Minister will take these issues away and reflect on them further.

Lord Hill of Oareford: I am grateful to my noble friend Lady Sharp for moving this amendment and for the work that she is doing on leading her commission. She brings a lot of experience to this debate. Central to our reform of the education and skills system, as the Committee know, is our belief that we should trust professionals. That is just as true for colleges as it is for schools. We all know the excellent work done by colleges as independent institutions, and my noble friend gave a number of excellent examples of colleges being dynamic nuclei, as I think the plural is, and being entrepreneurial. We know that last year's Ofsted annual report showed that sixth-form colleges are the highest performing sector in providing further education, so we want them and FE to have greater freedom to build on their track record and raise achievement still further.

As well as some non-legislative changes that we are making, such as simplifying the 16-to-19 funding system, the Bill aims to remove the kind of unnecessary regulation that we believe holds colleges back from deciding how to manage their own affairs. That includes things like removing the power to direct a college to consider disciplinary action against a member of staff, reducing the restrictions on sixth-form colleges' ability to form or invest in a company or removing the duty on colleges in England to have regard to guidance on consultation with students and employers.

In response to the concerns raised by the noble Baroness, Lady Jones of Whitchurch, regarding the capability of FE to manage borrowing and investments, I think that in some ways her questions highlighted a difference between us. Our starting point is that colleges

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are responsible, high-performing institutions, and we do not think that there is a reason to believe that they will borrow more money just because they no longer need to consult the relevant funding body. We expect them to take steps to ensure that their borrowings are proportionate to their business, as well as affordable. The financial health of a college should be the responsibility of its governing body. However, there are safeguards of the sort that the noble Baroness was seeking. Both the Financial Memorandum and the Financial Planning Handbook set out the mechanisms to ensure the continuing viability of their institutions, the conditions of borrowing, and the controls and monitoring arrangements in place to protect public money and the interests of students.

As my noble friend Lady Sharp argued, colleges make an extremely important contribution to the social and economic needs of their local communities. They do it in many of the ways that she outlined, and they also do it through the education they provide, the skills with which they equip young people, the jobs they create and through their links with local businesses, for example. Therefore, I think that the question is: given that they are doing this, do they need to have a legal duty to do so? The provision to remove the duty has been welcomed by the sector, including the Association of Colleges and the Sixth Form Colleges' Forum, and we think that it is recognition of the trust that we have placed on the ability of institutions to take well-informed, rational decisions without the need for there to be too much direction from government.

The other amendments in the name of my noble friend Lady Sharp raise the question of freedoms that FE colleges have. The intention behind her amendments is to remove the Secretary of State's powers to modify a further education corporation's instrument and articles of government and to place a condition on the Secretary of State to secure the consent of the corporation's governing body before making an order to dissolve the corporation. My noble friend mentioned two phrases to which I always respond in a Pavlovian way. She referred to Treasury rules and wanting to encourage FE colleges to be enterprising. I am sympathetic to the intention behind these amendments as the Government are committed to trying to reduce the level of external control. Her amendments raise an important issue. It is one that I am very happy to take away and consider further before Report. Perhaps we could discuss that further.

So regards the Government's amendments, the noble Baroness, Lady Jones of Whitchurch, was kind enough to make the point that in effect we are trying to do what the previous Government attempted, but did not have the opportunity, to do. The aim of the amendments is to reinstate the statutory safeguards relating to voluntary sixth-form colleges. I provided information in the letter that I sent to noble Lords on 13 July. As the noble Baroness said, it was the Government's view that legislation should reflect the distinct constitutional position of voluntary sixth-form colleges, and they confirmed that they would look to reinstate those protections through legislation. We agree with that view and, through these amendments, we seek to reinstate the statutory position. This includes ensuring consultation with all persons who may appoint or

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nominate foundation governors before the Secretary of State exercises his intervention powers. It will include consultation with the bishop where the bishop appoints or nominates foundation governors. To answer the noble Baroness's question, I think that it reflects the concerns of the CES-a point about which she asked me.

So far as concerns the amendment that the noble Baroness, Lady Jones, moved on behalf of the noble Lord, Lord Knight, we are keen to place accountability for student performance and an institution's own improvement firmly within that institution. Therefore, the Bill seeks to replace the current complex intervention arrangements, which involve both the YPLA and local authorities, with simpler arrangements where the Secretary of State has reserve powers of intervention. We are lucky to have a high performing college sector and we foresee these powers being used very rarely. These arrangements and the role of the Secretary of State have been welcomed by the Association of Colleges.

I hope that noble Lords will agree that the provisions contained in Schedule 12 and proposed in the government amendments are necessary to support the continued success of the college sector. They will ensure that providers are free to deliver high-quality education. They replace the current, complex arrangements for intervention in colleges with reserved powers and ensure that legislation recognises the specific governance and constitutional arrangements of voluntary sixth-form colleges.

As I said, I will pursue further the points made by my noble friend Lady Sharp. With that in mind, I ask her to withdraw her amendment.

Baroness Sharp of Guildford: I am extremely grateful to my noble friend for his sympathetic reply to the amendments. I am sorry that we have not had a little more movement on the amendment concerning well-being. Although in some senses, as my noble friend says, it is unnecessary, because a lot of colleges are doing it and I know that the Association of Colleges and the sixth-form college group welcome that, my point was that it helps to reinforce the issue. However, that is a background issue.

To pursue the other, rather esoteric issue, I know that the team in the Department for Business, Innovation and Skills is working hard on it, and I hope that we can get some changes to the Bill that will satisfy both the Treasury and the Office for National Statistics. With that, I beg leave to withdraw the amendment.

Amendment 122BZA withdrawn.

Amendments 122BZB and 122BZC not moved.

Amendment 122BA

Moved by Lord Hill of Oareford

122BA: Schedule 12, page 90, line 32, at end insert-

" In section 33E (principal powers of a sixth form college corporation), in subsection (2), after "subsection (1)" insert "and (in the case of a sixth form college corporation to which section 33J applies) section 33J(1A)"."

Amendment 122BA agreed.

Amendment 122BAA not moved.

12 Sep 2011 : Column GC147

Amendments 122BB to 122BL

Moved by Lord Hill of Oareford

122BB: Schedule 12, page 90, line 39, at end insert-

" (1) Section 33J (special provision for certain institutions) is amended as follows.

(2) After subsection (1) insert-

"(1A) A sixth form college corporation to which this section applies may (accordingly) conduct the relevant sixth form college in a way that secures that the established character of the sixth form college is preserved and developed (and, in particular, in a way that is in accordance with any trust deed relating to the college)."

(3) In subsection (3)-

(a) for "reference in subsection (1)(a) to the established character of a sixth form college is" substitute "references in subsections (1)(a) and (1A) to the established character of a sixth form college are";

(b) for "a reference" substitute "references"."

122BC: Schedule 12, page 91, line 1, leave out paragraph (b) and insert-

"(b) for subsection (2) substitute-

"(2) An order under subsection (1) may not be made unless-

(a) the Secretary of State has consulted the corporation, and

(b) in the case of a sixth form college corporation to which section 33J applies, the trustees of the relevant sixth form college have given their consent.""

122BD: Schedule 12, page 91, line 5, at end insert-

"( ) After subsection (1) insert-

"(1A) In the case of a sixth form college corporation to which section 33J applies, an order under subsection (1) may not be made unless the trustees of the relevant sixth form college have given their consent.""

122BE: Schedule 12, page 91, line 8, leave out from "for" to end of line 13 and insert ""it" substitute "the Secretary of State"."

122BF: Schedule 12, page 91, line 14, leave out ", (5)"

122BG: Schedule 12, page 91, line 20, at end insert-

"( ) In subsection (5), omit ", with the consent of the YPLA".

( ) After subsection (5) insert-

"(5A) A sixth form college corporation may do the things mentioned in subsection (5) only with the consent of-

(a) the Secretary of State, and

(b) in the case of a sixth form college corporation to which section 33J applies, the trustees of the relevant sixth form college.""

122BH: Schedule 12, page 91, line 30, at end insert-

"( ) In subsection (1)(b), for "or (6)" substitute ", (6) or (6A)"."

122BJ: Schedule 12, page 91, line 45, at end insert-

"( ) In subsection (4), for "subsection (5)" substitute "subsections (5) and (6A)"."

122BK: Schedule 12, page 92, line 1, after "(6)" insert "-

(a) after "may" insert "(subject to subsection (6A))";

(b) "

122BL: Schedule 12, page 92, line 2, at end insert-

"( ) After subsection (6) insert-

"(6A) In the case of a sixth form college corporation to which section 33J applies, any property held by the corporation on trust for the purposes of the relevant sixth form college must be transferred to the trustees of the relevant sixth form college."

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( ) After subsection (7) insert-

"(7A) Subsection (7) does not apply where (by virtue of subsection (6A)) the recipient is the trustees of the relevant sixth form college.""

Amendments 122BB to 122BL agreed.

Amendment 122C not moved.

Amendments 122D and 122E

Moved by Lord Hill of Oareford

122D: Schedule 12, page 93, leave out lines 2 to 11 and insert-

"(4) Subsections (4A) and (4B) apply to a sixth form college which is specified, or falls within a class specified, in an order under section 33J(2).

(4A) Before doing one or more of the things listed in subsection (6), the Secretary of State must consult-

(a) the trustees of the sixth form college, and

(b) each person or body with power under the college's instrument of government to appoint or nominate one or more of its foundation governors.

(4B) After carrying out a consultation under subsection (4A), the Secretary of State must give the persons and bodies consulted a notice stating-

(a) what the Secretary of State has decided to do;

(b) the reasons for the decision.""

122E: Schedule 12, page 93, line 13, leave out from "for" to end of line 14 and insert ""authority do one or more of those things, the authority" substitute "Secretary of State does one or more of the things listed in subsection (6), the Secretary of State""

Amendments 122D and 122E agreed.

Schedule 12, as amended, agreed.

Clause 49:Financing of pupil referral units

Amendment 122F had been withdrawn from the Marshalled List.

Amendment 122G

Moved by Baroness Brinton

122G: Clause 49, page 41, line 29, at end insert-

"( ) After subsection (3) insert-

"(3A) Notwithstanding subsections (1) to (3), if a pupil registered at a pupil referral unit is also registered at an Academy, the Academy shall pay the local authority which maintains the pupil referral unit the cost of educating the pupil for days when the pupil attends the unit."."

Baroness Brinton: The amendment has one simple aim in the extremely complex world of schools funding: to ensure that there is a level playing field concerning exclusions from academies to PRUs. I thank my noble friend Lord Hill for his helpful letter to the noble Baroness, Lady Walmsley, who, as I mentioned earlier, cannot be in her place today. I and my colleagues are concerned that in the bifurcated schools funding system that academies and free schools are now part, they should not be at any advantage over a community or maintained school, nor should the funding mechanism

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make it more beneficial for an academy or a free school to exclude a pupil long-term, which would necessitate a move to a PRU. My noble friend's letter is partially helpful, and I am grateful for that. It states:

"PRUs are centrally funded within a local authority's Dedicated Schools Grant (DSG). When a maintained school converts to Academy status, no funding for local authority places is deducted from the local authorities DSG and the Academy receives no additional funding for this function. So Academies and maintained schools are in the same position in this respect".

One reason that we have concerns is that academies have consistently had a higher exclusion rate of pupils than community schools. The figures for 2008-09, published under the Freedom of Information Act earlier this year show that on average academies permanently excluded 82 per cent more students- 3.1 per 1,000 compared to 1.7 per 1,000 for non-academy schools. I know that that figure is beginning to reduce, but there is still more than 50 per cent disparity between academies and the community schools.

6 pm

The figures also demonstrate that there is only a small effect on exclusions from academies in deprived areas and I would not therefore want us to go down the argument that because academies originally were set up in deprived areas you would expect a high level of exclusion. The figures show a slight distortion there, but it does not account for the substantial difference. The general facts are that academies exclude permanently more pupils than their non-academy counterparts.

While I am reassured that the PRU funding itself is ring-fenced, I should like to ask the Minister if the local authority funding takes account of how many academies there are in an area in the allocation of PRU funding to compensate for this distortion. It seems wrong that the deliberately meagre funding allocated to local authorities for their essential strategic services such as PRUs should be penalised simply because many of their schools have chosen to convert to academies. I beg to move.

Baroness Jones of Whitchurch: My Lords, we have three amendments in this group that I should like to address.

First, on the Question that Clause 49 stand part of the Bill, this clause was introduced during Commons Report stage and has not been properly scrutinised. It aims, as I understand it, to give PRUs more autonomy over their budgets and staffing. It also enables a majority of pupils to be referred by schools rather than local authorities. I acknowledge receipt of the Minister's letter to my noble friend Lady Hughes but, nevertheless, we have a number of concerns that I hope the Minister will be able to address convincingly-particularly regarding the new management and funding arrangements, and whether they will perhaps be perverse incentives for pupils to be kept at PRUs far longer than is in their educational or personal self-interest.

Will the Minister clarify what safeguards will be put in place to stop these autonomous PRUs from keeping hold of the young people for as long as possible, rather than seeking to return them to mainstream education? Secondly, what safeguards will exist to prevent schools from referring to the PRUs children

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who would not previously have met the criteria for referral by local authority? Does the Minister acknowledge that there was a risk within a federational chain of schools that financial drivers could lead to more pupils being referred to PRUs. Thirdly, to avoid the danger of perverse incentives to keep pupils over-long in PRUs, will the Government ensure that there will be incentives, including financial incentives, for PRUs to help young people back into mainstream education, which I hope is what we should all hope would be their ultimate goal? Finally, can the Minister explain how the funding flows will work, particularly where there is dual registration of a pupil at their old school and the PRU? How will the funding be allocated and who will hold the ultimate responsibility for the expenditure?

We remain concerned that the transfer of power to schools to decide whether pupils should be sent to PRUs will lead them too easily to become dumping grounds for children with behavioural problems or complex disabilities, and we seek reassurance from the Minister that the appropriate checks and balances will be put in place to prevent this happening.

6.03 pm

Sitting suspended for a Division in the House.

6.14 pm

Baroness Jones of Whitchurch: My Lords, I turn to Amendment 124A. Clause 52, among other things, allows for the creation of alternative provision academies, which are defined as institutions,

Currently, pupil referral units perform that role, so the Bill effectively allows them to become academies.

Our concerns about these new proposals echo those that we raised in previous debates relating to excluded pupils; for example, the repeal of the duty of schools to enter into behaviour and attendance partnerships and the removal of appeals panels that can reinstate wrongly excluded pupils. They also mirror our concerns regarding Clause 49.

Pupil referral units which become academies could grow more isolated from other schools and be cut off from current partnership working, including with local authorities. I ask the Minister again how he thinks this will help excluded pupils to re-enter mainstream schools as soon as possible.

Our Amendment 124A would provide a fallback position whereby pupils could not stay in alternative provision academies for more than six months. If the Minister is going to argue that a time limit of this kind is overly rigid, what alternative safeguards will he propose to stop children being referred early or inappropriately and returned to the mainstream late? How long will they be left to languish in units because it is financially desirable for the institution concerned that they do so?

A different issue is covered by our Amendment 124C. As it stands, the clause includes a Henry VIII provision which gives the Secretary of State a wide-ranging

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power to amend by order any legislation passed prior to this legislation to achieve the objective of establishing the two new types of academy; that is, 16-19 academies and alternative provision academies. It appears that the Government have not thought out the necessary consequential amendments for introducing 16-19 academies and are relying on a Henry VIII provision to do so. As I am sure noble Lords around the Room will agree, such powers should only ever be used sparingly and in exceptional circumstances. When does the Minister envisage the provision being used and for what purpose?

The amendment, which would remove the Henry VIII provision, is probing. Colleagues tabled a similar amendment in the Commons but, as the Minister there was unable to give a full account of the reasons for the provision, we have tabled it again here. In the Commons, Nick Gibb explained that the power would be used to make provision for which bits of existing legislation would apply to these new models of academy and which would not. He went on to say:

"How the new educational institutions will fit into the existing legal framework is complex".-[Official Report, Commons, Education Bill Committee, 5/4/11; col. 893.]

In short, it is not yet clear which legislation will apply to these new types of academy, yet we are being asked to pass the Bill regardless.

Nick Gibb also promised to provide more details of the Government's proposals as the Bill passed through the House. Since then, we have had a number of government amendments tabled and a letter from our own Minister on the subject. However, as his letter confirms, despite the extra information that the Government are now able to provide, the Henry VIII provision remains necessary for the making of further amendments by order. The letter explaining the government amendments is not an explanation of each amendment but more a background note on the Government's general approach. This is not the right way to go about making and scrutinising legislation.

If the proposals are too complicated for the Government to bring the details before us now, surely there is a real danger that they will be too complicated to be implemented effectively. We should have the complete legislation before us today so that we have the chance to debate and amend it with the thought and diligence that this Committee has already demonstrated.

I am not sure that the Henry VIII provision was ever intended to provide a way out when the Government had not got all their amendments written in time for the passage of the Bill. I therefore hope that noble Lords will support our amendment to delete the Secretary of State's powers in Clause 53 to this effect.

Lord Hill of Oareford: My Lords, we know that at any one time around 40,000 to 70,000 pupils are in some form of alternative provision. We know that there is an iron-clad correlation between those who are excluded, those who attend alternative provision, those who come into the youth justice system and those who go on to offend and reoffend in their adult lives. No one here accepts that it has to be like that.

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Alternative provision should provide an opportunity to support more young people to turn their lives around. That is why we are taking a number of steps to help to achieve this, including the changes in Clause 49. The Secretary of State has asked the department's behaviour adviser, Charlie Taylor, to conduct a review to identify what further changes may be needed.

We are keen to give PRUs more of the freedoms that other schools enjoy to allow the professionals who run them to drive their own improvement. This clause will allow PRUs to manage their own budgets in a similar way to mainstream schools. Through regulations we are also giving PRU management committees powers over staffing similar to those that school governing bodies already have. Professionals working in PRUs have welcomed these changes.

In addition to these freedoms, our exclusions trials, in which schools will retain responsibility for excluded pupils, will assess how a new approach to managing exclusions could contribute to improving standards in alternative provision. I hope that this point answers a number of concerns raised by the noble Baroness, Lady Jones of Whitchurch. If schools retain responsibility for the education and outcomes of excluded pupils, PRUs and AP providers will need to be more responsive to demand from schools for high-quality education. That should help to deal with the perception, raised by the noble Baroness, Lady Jones, that there are perverse incentives. We do not want perverse incentives for schools to exclude. We want, as I know she does, the right kind of provision to be made in a way that is suitable for individual children. By allowing for the creation of alternative provision academies and free schools, we also aim to bring the benefits of the academies and free schools programmes to the alternative provision sector.

Turning to Amendment 124A, I agree with the noble Baroness that returning a child to a mainstream school as soon as possible is, in most cases, the best thing for a pupil attending alternative provision. Like her, I do not want alternative provision to be seen as a dumping ground where children are put out of sight and out of mind. We know that some of the best PRUs have a strong focus on reintegration. They constantly monitor and review when it is appropriate for a pupil to be supported to return to mainstream education. We want to see all AP providers, including alternative provision academies and free schools, learning from this kind of good practice. However, in some cases it is possible that a longer period in alternative provision may be appropriate. For example, continuity can be important at key stage 4. A young person whose education has been disrupted or who has become disengaged might benefit from a longer period in AP, especially if they are responding well to this provision. Therefore, we argue, as the noble Baroness predicted, that professionals managing and delivering alternative provision, including in AP academies and free schools, are best placed to make judgments about the best time for a pupil to return to mainstream education. There should not be an arbitrary cut-off date that cannot take account of individual circumstances or that would trump the judgment of professionals who know the needs of pupils in their care.

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My noble friend raised points about funding and her desire to make sure that academies and free schools are funded on a comparable basis. As she pointed out, PRUs are centrally funded within the local authority's dedicated schools grant. When a maintained school converts to academy status, no funding for PRUs is taken from the local authority's DSG and the academy receives no additional funding for this function. Therefore, maintained schools and academies are on the same footing in this respect. If a pupil is excluded permanently from a maintained school or an academy, the local authority is responsible for securing suitable education for them. Schools-maintained schools and academies-are responsible for securing full-time education for a pupil from the sixth day of a fixed-term exclusion. Some providers of alternative provision also provide early intervention places for pupils with behavioural issues. Local authorities and schools can agree between them how places in PRUs may be made available for pupils who are the responsibility of schools. This would include if and how the authority would charge schools for places, and we would expect them to do that on an equitable basis for all schools. With regard to safeguards on referrals by schools, I set out the position in detail in my letter of 8 September.

On the government amendments, I recognise the concerns that the noble Baroness, Lady Jones, raised about the powers contained in Clause 53. They allow us to make changes to primary and secondary legislation that we think are needed in consequence of the creation of new types of academy under Clause 52. In the light of the concerns expressed in the other place, we have drafted and tabled as many of the amendments to primary legislation as we can, and I have written to try to explain those amendments in detail.

These are complex legislative issues and I concede that we have not resolved them all. We think that we need to take a residual power to amend primary and secondary legislation by order. The exercise of that power is subject to the affirmative procedure, so both Houses of Parliament would have the chance to debate the legislation when an order was laid. There is a precedent for taking this approach-there is a much broader power to make consequential amendments in Section 265 of the previous Government's Apprenticeships, Skills, Children and Learning Act 2009.

In addition, we have tabled minor amendments to Clause 52 of the Bill. Amendments 123A and 123B amend new Section 1A so that an academy school cannot be an alternative provision academy. Further amendments give the Secretary of State flexibility to apply legislation to this diverse sector.

Overall, as is the case for the noble Baroness, Lady Jones, we are keen to ensure that alternative provision meets the needs of the vulnerable children that it serves. It is important that funding should be on an equitable basis. With some of the assurances that I have given about the changes we are making, the funding and the Government's intentions, I hope that my noble friend will feel able to withdraw her amendment.

Lord Elton: I ask my noble friend for a little footnote to history. In checking the affirmative order provided for in Clause 74(4), I see that, whereas we have only an

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affirmative procedure for statutory instruments affecting these changes, the Welsh have opted for their equivalent for the negative procedure. I wondered what the history to that was. I do not want an answer now but, if there is anything of interest in it, I should like to know what it is.

The Earl of Listowel: I thank the Minister briefly for his clear recognition of what happens if we do not get this right: we have children whose parents have not been able to care for them properly, for whatever reason, feeling unwanted in their schools, being put in a place that they feel is like some sort of bin and then ending up in the secure estate. There is a great deal at stake here and getting it right is very complex. Some children benefit from a smaller environment.

One does not want all the worst children in one place; some of them need to be a bit healthier. The last time that I visited a pupil referral unit, there was a fire alarm and we all had to file out to stand outside. It was the third time that day that this had happened, and it was chaos. The staff were good but it was a very difficult environment to work in. I welcome the Minister's action on this.

I am very pleased that Charlie Taylor, whom we have met and in whom we all have confidence, is taking charge in this area. I wonder whether any noble Lords might be interested in visiting a pupil referral unit with him soon to see what is going on. I certainly would be, and I will get in touch with him about that.

6.30 pm

Baroness Brinton: I thank the Minister for his response on the very varied amendments that we have in front of us for PRUs today. I am sorry to say that, with the noise of the helicopters overhead, I was not quite sure whether he had answered the very specific question I raised in my amendment, about the disparity of funding for PRUs in a local authority area where there is a larger number of academies. I accept that he may not have the details to hand, but I would be grateful if he could let me know whether that is something that could be considered. I believe that the figures demonstrate that there is a serious issue there.

I also understand the points he has raised about limiting the time for which a pupil could stay within a PRU. I certainly take the point that there are some times where it needs to be more than just six months, to maintain continuity. I do not know if noble Lords opposite would take the point as well; however, I believe they said that that was as much a probing amendment as anything else, so I hope that will be acceptable. I remain concerned as well about the Henry VIII provision, and hope that some of the detail can be sorted out before this Bill proceeds into an Act. It is important that the Secretary of State-especially as we are talking so much about localism these days-does not reserve a large number of powers to himself or herself.

On that basis, waiting for the response from the Minister on the very specific point that I made, and knowing that the Report stage is coming, I beg leave to withdraw the amendment.

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Amendment 122G withdrawn.

Clause 49 agreed.

Clause 50 agreed.

Amendment 123

Moved by Lord Avebury

123: After Clause 50, insert the following new Clause-

"Promotion of education of vulnerable children

The Secretary of State shall issue guidance on how local authorities can promote and improve the education of vulnerable children in their area."

Lord Avebury: My Lords, this new clause is about the way that local authorities deal with vulnerable children. The group that I am specifically concerned with, as your Lordships may be aware, is that of Gypsies and Travellers. I declare an interest, as president of the Advisory Council on the Education of Romany and other Travellers, ACERT.

Statistics show that GRT children are severely deprived. They are in fact the most vulnerable of any ethnic group by a long way. The National Foundation for Educational Research showed, in a report produced last October for the department, that absence rates in primary schools were between 19 and 24 per cent, compared with the national average of 5 per cent. In secondary schools it was between 23 and 27 per cent, compared with a national average of 7 per cent. There were more than eight permanent exclusions for every thousand GRT boys, compared with less than two per thousand of all boys nationally. The figure for fixed-term exclusions of boys, mainly for persistent disruptive behaviour, was a staggering 25 per cent, compared with a national average of 10 per cent. Some 20 per cent of GRT pupils failed to make the transfer between primary and secondary education. For every 100 GRT pupils in year 6, only half get to year 11, compared with a national average of 92.4 per cent. From the cohort that did get to take GCSEs, the number achieving five A to C grades at that level in 2010 was 8.3 per cent, compared with a national average of 55 per cent.

These appalling figures do not tell the whole story by any means. More than half of all the children belonging to these communities do not identify themselves as such, fearing the discrimination and bullying of which they are unfortunately likely to be victims if they are known to be Gypsies or Travellers. Obviously they do not include, either, the high proportion of children from these communities who are not on school rolls. The children in these two groups are likely to be at the bottom end of the scale of vulnerability, and if they could have been included the record would almost certainly have been worse. Manifestly we have failed to do enough educationally for GRT children in the past, and that is one of the reasons why they are also at the bottom of society in every other respect as well.

Let us next see whether these children are likely to be picked up by the definition of vulnerable children who are covered by the coalition's statutory framework, as was set out in the Minister's very helpful letter to me of 31 August, which I hope that some other noble Lords will also have seen.

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SEN children are covered by a code of practice that details what should be done to ensure that they get an appropriate education. They will be assessed by a statutory education, health and care plan, which was outlined in the recent Green Paper. A revised legal framework will deal with about 87,000 looked-after children, on which there is also statutory guidance to local authorities. For those looked-after for six months or more, the pupil premium of £430 will chip in.

Children in need-those who are unlikely to achieve or maintain a reasonable standard of health or development, including the disabled-are supported under a general statutory duty laid down in the Children Act 1989. Again, that is reinforced by a range of guidance.

The Minister concludes by saying that he hopes that those statutory frameworks and their associated guidance make clear the importance of local authorities and others with duties to improve the educational outcomes of vulnerable children, but, unfortunately, there are some gaps for GRT children. I shall try to explain why that is so.

Under previous legislation, the Traveller Education Support Service was ring-fenced, but after 2007 the sums previously allocated to that service were subsumed into general grounds aimed at disadvantaged children. Local authorities have therefore been dismantling the TESSs. It is predictable that, with the pressure on educational budgets, they will disappear altogether in a few years, despite their considerable achievements, particularly in getting a higher percentage of GRT children to attend and stay on in schools. The specific expertise that they have amassed over the years will not be inherited by the mechanisms that already exist or are being developed to cope with the needs of the three categories of vulnerable children cited by the Minister in his letter. Nor will the staff concerned with vulnerable children generally be likely to devote the same amount of time and effort to the specific problems affecting the GRT children as TESSs have done.

I now come to the special needs that are not covered by any of the three categories of vulnerable children in the Minister's definition. There is undoubtedly a much higher proportion of children missing education among GRT communities than in any other sector of the population. Those children are exceptionally vulnerable, as an Ofsted survey in June 2010 concluded. It referred to the former DCSF's statutory guidance for local authorities on the circumstances in which a child may not be receiving suitable education. They included membership of the GRT ethnic groups. Ofsted looked at 15 authorities, large and small, urban and rural. It found that none of the service departments in the authorities was confident that it was aware of all the children living in its area. The consistent response from officers was, "We don't know what we don't know".

However, in a Times Educational Supplement survey last February, 12,000 children were listed as officially missing, and it was clear that the number would have been much higher if all the authorities had made as much effort as Leicester, which employs a full-time member of staff to trace CME, assisted by 20 educational welfare officers. Martin Narey, the former chief executive

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of Barnardo's, said that the situation was deeply troubling. If my noble friend is not prepared to add CME to the categories of vulnerable children, I hope that he can tell your Lordships what alternative solution he has to offer. The Government acknowledge that the current guidance on CME is defective, because they are planning new guidance to be issued by the end of the year, but if that is all that my noble friend has to say on this after the Government have had the devastating Ofsted information for well over a year, I shall be very disappointed.

In the case of GRT children in particular, who must make up a significant element of the TES numbers, in the response by the inner London consortium co-ordinator, Brian Foster, to the Ofsted survey, it was pointed out that the TESSs' relationship of trust, developed with those communities over time, had made it more likely that they would get information and that their development of a cross-borough database of families minimised the number of unidentified CME. Such arrangements may be discontinued with the disappearance of TESSs and the lack of any local authority responsibility for CME who are not covered by any of the three headings.

One thing that the local authorities covered by the Ofsted survey knew was that excluded pupils' vulnerability was significantly increased because of their potential exposure to drugs, alcohol, crime, pregnancy or mental health problems. It is not clear whether excluded pupils are included within children in need. Without explicit guidance they may not be covered. Nor are local authorities obliged to keep a register of children in need, as they should be required to do in guidance. Here again, GRT pupils are far more likely to be excluded than any other ethnic group, with over one-fifth of Gypsy or Roma boys and one-quarter of Irish Traveller boys excluded in the course of an academic year. Ideally, CME should be added to the Minister's three categories of vulnerable children, but if that is unacceptable because it is too broad, a way of picking up some-perhaps most-of the CME would be to add a category of "mobile child", meaning a child who starts other than at the beginning of their phase. These are defined by authorities such as the London Borough of Hackney as "mid-phase admissions".

The pupil premium of £430 in the current year does not necessarily cover these children who dip into education from time to time, including not only those of GRT origin but, for example, asylum seekers or the dependent children of migrants coming here for work. The proposal in the schools funding consultation to extend the payment from children currently in receipt of free school meals to those who have done so in the past three or six years would dilute the per capita grant because the total sum available would not be increased. It still does not necessarily cover these mobile children, who are disadvantaged because they are engaging with school for the first time or after an absence.

Some GRT parents say that they electively home educate their children just to give a reason why they are not attending school. It is very doubtful that the parents are competent to teach or that the lessons they give, if any, would enable the children to participate effectively in wider society or to earn a living in any

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skilled employment. They are likely to remain in the closed communities of their families, cut off from the rest of the population. Graham Badman's recommendations-that parents should register a child who is to be home educated, submit a yearly statement of their educational approach, intent and planned outcomes, and accept home visits by the local education authority-might have focused more attention on these children and enabled local authorities to offer parents advice and assistance. However, as the Committee will recall, the report stirred up a hornet's nest among parents who were effectively home educating their children as measured by their outcomes, and it sank without trace. I take it that the Government have no intention of revisiting the question of what to do about EHE, although some of the children ostensibly being home educated-not only those in the GRT communities-may be extremely vulnerable.

A further suggestion would be to add those who cease to attend at any point in their school career, particularly at the point of transfer between primary and secondary school, to the list of vulnerable children. We need to make far greater efforts to improve the attendance of secondary school-age GRT children, considering that one in five drop out at the end of primary school and just over half drop out before school-leaving age. Only 38 per cent of Irish Travellers go all the way through school so the disadvantages that they suffer, and their lack of affinity with the social system, are being transmitted to the next generation.

A final thought that I offer the Minister is that virtual schools should be given a chance to cover children missing education. Local authorities have a duty to safeguard and promote the welfare of a child looked after by them. By virtue of Section 52 of the Children Act 2004, that includes a duty to promote the child's educational achievement. Outcomes were driven up by virtual schools for children in care in the pilot authorities, and the idea was rolled out in all but three local authorities by July 2010. If the virtual schools continue to benefit children in care, is it not likely they could do the same for CME?

I am not optimistic that the Minister can give your Lordships much reassurance on this amendment, which asks so little in the face of a task that has been ducked by successive Governments throughout the half-century of my political life. Gypsy, Roma and Travellers belong to a minority that clearly is not popular, as evidenced by the racism in the comments threads of the media whenever they publish articles on the subject. Now, having at least prided ourselves in the past on our human rights and equality law, we are under fire from the UN Committee on the Elimination of Racial Discrimination and the UN rapporteur on the Right to Adequate Housing over the inhuman eviction of Travellers from the Dale Farm site, due to start a week today.

6.45 pm

We are also at risk of adverse comment from the UN Committee on the Rights of the Child, which already said in its draft report on the UK three years ago that significant inequalities persist with regard to school achievement of children living with their parents

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in economic hardship. Several groups of these children have problems being enrolled in school or continuing or re-entering education, either in regular schools or in alternative educational facilities, and cannot fully enjoy their right to education, notably, among others, children of Travellers, Roma children, drop-outs, non-attendees and so on.

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